R. v. Adu-Twum, 2021 ONCJ 574

CITATION: R. v. Adu-Twum, 2021 ONCJ 574

DATE: November 15, 2021

Information No. 19 – 54893

ONTARIO COURT OF JUSTICE

(at St. Catharines, Ontario)

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

LOUIS ADU-TWUM

Ms. D. Polgar and Mr. D. Anger for the Federal Crown

Mr. S. Buchanan for Mr. Adu-Twum

Reasons for Judgment on a S. 8 and a S. 10(b) Charter Application

NADEL, J.:

Introduction

[1] In September of 2019 a numbered confidential informant [C.I.] for the Niagara Regional Police Service, [NRPS], told Sergeant Eric Bell, [Bell], that “Tyrell” was selling cocaine in Welland, Ontario. For several days in late September, as well as on October 1, 2019, Bell, and a team of NRPS officers acting under his direction, placed Tyrell under surveillance.

[2] During those days of surveillance Tyrell, who was actually Louis Adu-Twum, [Adu-Twum], was seen to conduct a number of hand-to-hand transactions and similar short encounters with a variety of people. The officers, based on their knowledge and experience, believed that they had witnessed Adu-Twum selling cocaine.[^1]

[3] On October 1, 2019 Bell directed uniformed NRPS Officer Casey Tennant, [Tennant], to stop the car that Adu-Twum was driving in Welland and to arrest him for possession of cocaine for the purposes of trafficking. Tennant did so at approximately a few minutes before 10:30 a.m. on that date. I say “approximately” because Tennant’s notes were woefully inadequate. He had little detailed memory of his involvement in this investigation to supplement those inadequate notes. While he noted that he was asked by Bell to stop and arrest Adu-Twum at 10:13 a.m., the next time he made a note in his duty book was at 11:44 a.m.

[4] After stopping and arresting Adu-Twum, Tennant handcuffed him, patted him down and placed him in the back of his cruiser. According to Bell, Tennant located two cell phones that he gave to Bell. Bell searched Adu-Twum’s left, front pant’s pocket and found $980.00 in Canadian currency in Adu-Twum’s possession.[^2] According to Bell, Tennant also found a digital scale that had some white powder residue on it in Adu-Twum’s possession. Tennant neither noted nor recalled finding the phones or scale and handing them over to Bell. This was merely one example, albeit an egregious one, of Tennant’s failure to document or recall the particulars of the investigation that he played an integral role in.

[5] Tennant read Adu-Twum his s. 10(b) rights to counsel which Adu-Twum invoked. What Adu-Twum said by way of his invocation was not noted by way of any quote in Tennant’s notebook, although Tennant testified that Adu-Twum said that he did not know his lawyer’s name.

[6] Tennant then joined Bell in searching Adu-Twum’s vehicle for a minute or two before leaving Welland and bringing Adu-Twum to the NRPS headquarters in Niagara Falls, Ontario. Tennant did not discover or recover anything during his brief search of Adu-Twum’s vehicle, which was filled with so much stuff that some officers thought that he was living out of it.

[7] Once again, the time that Tennant left Welland with Adu-Twum and the time that he arrived at headquarters was not documented by him. Tennant estimated that it took between 15 to 25 minutes to arrive at the police headquarters in Niagara Falls.

[8] Because Bell did not locate any drugs in Adu-Twum’s car, he called Sergeant Dylan Bourgeois, [Bourgeois], the booking sergeant at headquarters, and asked Bourgeois to order a strip search of Adu-Twum. Bell also asked Bourgeois to hold off implementing Adu-Twum’s call to counsel until Bell arranged to secure two addresses in Welland that he felt were associated with Adu-Twum and that might contain drug contraband.

[9] The strip search did not reveal that Adu-Twum was in possession of any cocaine or contraband.

[10] After the negative strip search was carried out Bell continued to search Adu-Twum’s vehicle and discovered a cache of four bags of cocaine hidden behind a loose piece of panelling in Adu-Twum’s vehicle. That cache of drugs consisted of:

• 29.5 grams of powdered cocaine;

• 29.3 grams of crack cocaine;

• 29.4 grams of crack cocaine; and,

• 37.5 grams of powered cocaine.

[11] Prior to carrying out the strip search and while booking Adu-Twum into his custody Bourgeois confirmed with Adu-Twum that he wished to invoke his rights to contact counsel. During that discussion Adu-Twum told Bourgeois that he wanted to call his mother in Toronto to get the name of the lawyer that he wanted to speak to. Bourgeois refused to allow Adu-Twum to make that call. He told Adu-Twum that he was a grown-up and that he could not call his mother for that information.

[12] While Bourgeois did offer to Google the name of the lawyer Adu-Twum wanted to call in order to assist him in obtaining contact information for that lawyer, Adu-Twum had told Bourgeois that he did not know the name of the lawyer. That was why he wanted to call his mother – to get the name of the counsel he wished to speak to. Adu-Twum then said that if he could not make the call to his mother then he wanted to speak to Vijai Singh, [Singh], a local defence counsel.

[13] At 1:09 p.m. Adu-Twum was brought to the private telephone room to speak with Singh.

[14] Adu-Twum did not testify on the voir dire respecting either Charter complaint. In addition, he did not call his mother, Singh or the Toronto lawyer that he told Bourgeois he wanted to call.

The S. 8 Strip Search Ruling

[15] Mr. Buchanan urged that there was no basis for a strip search so that it was an unreasonable search performed in breach of s. 8. In support of that position he contended, inter alia, that Bell’s testimony that the C.I. said Adu-Twum hid his drugs in his underwear ought to be ignored as not having been previously disclosed. Alternatively, if that information was previously and sufficiently disclosed, a bald statement to that effect failed to meet the “three C’s” of Debot[^3] as not being credible, compelling, or corroborated, especially since no officer doing surveillance ever saw or said that they saw Adu-Twum reach into his pants or underwear.

[16] Parenthetically, (since I am of the view that the C.I. information about Adu-Twum hiding drugs in his underwear does not need to be relied upon to support the propriety of this strip search on these facts), I note that no disclosure application was brought prior to or at this trial in respect of the information that Bell said that he received from the C.I.

[17] I essentially agree with and accept the submissions made by Ms. Polgar on behalf of the Federal Crown in response to this s. 8 complaint.

[18] In brief compass, the extensive surveillance evidence called demonstrates that Bell had reasonable and probable grounds to arrest Adu-Twum for drug trafficking. In my view there was cogent evidence of hand-to-hand drug trafficking along with many other short encounters that the police witnessed and from which they reasonably inferred that they were witnessing drug deals being engaged in by Adu-Twum. Simply put, both the subjective and objective requirements for a valid arrest, as called for in R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241 were well-established on the evidence adduced.

[19] Before Adu-Twum was arrested that morning he had been seen to be conducting a drug transaction. That was a belief subjectively held by Bell and his belief was based on objective surveillance. In addition, when Adu-Twum was arrested he was in possession of drug paraphernalia; viz: two cell phones, a digital scale and almost $1000.00 in cash.[^4] However, he had no drugs in his pockets or visible in his vehicle.

[20] One possibility was that he had sold all of his drugs. However, given the number of prior transactions that the police had witnessed during the course of their surveillance it was very possible that he had drugs secreted inside of his clothes. That is what Bell believed and in my view that was a very reasonable belief to hold.

[21] The governing law against which to assess the propriety of this strip search is concisely set out in R. v. Muller, 2014 ONCA 780 beginning at paragraph [54]. As Watt J.A. noted at paragraph [60]: “The serious infringements of privacy and personal dignity that are inevitable consequences of strip searches require that, to be constitutionally valid, the strip search must be:

(i) conducted as an incident to a lawful arrest;

(ii) conducted for the purpose of discovering weapons or evidence on the body of the arrested person related to the reason for the arrest;

(iii) based on reasonable and probable grounds for concluding that a strip search is necessary in the circumstances of the arrest; and,

(iv) conducted in a reasonable manner.”

[22] In my view, the facts and circumstances and hence the justification for the strip search of Adu-Twum closely mirror the facts and circumstances in Muller and conform to constitutional requirements.

[23] As in Muller, the strip search of Adu-Twum occurred shortly after his lawful arrest and a lawful frisk search incidental to that arrest. Likewise, the frisk search yielded no drugs or drug paraphernalia such as packaging materials or debt lists but, like Muller, Adu-Twum had cell phones and a digital scale with a white residue resembling cocaine visible on the scale’s surface. In addition, Adu-Twum had almost $1,000.00 in cash in his pocket and had been seen to be conducting a drug deal prior to his arrest.

[24] Once again paralleling Muller, the decision to request a strip search was made at the scene of Adu-Twum’s arrest by Bell, the lead officer in the investigation who attended the scene of the arrest. Similarly, the search of the two residences that Bell believed Adu-Twum to be associated with had not been complete.

[25] The critical issue is whether Bell had the grounds necessary to request a strip search and whether Bourgeois equally had the grounds necessary to conduct a strip search of Adu-Twum for the purpose of discovering evidence relating to drug trafficking. As mandated in Muller at paragraph [64], this depends on whether Bourgeois had reasonable and probable grounds to believe that a strip search was necessary in the circumstances of Adu-Twum’s arrest, as required by R. v. Golden, 2001 SCC 83, [2001] S.C.J. No. 81, at paragraph [99].

[26] In arriving at my conclusion that this strip search met constitutional muster, I rely upon the following constellation of facts:

• that Adu-Twum was observed to be conducting numerous drug transactions on the days during which he was surveilled as well as a meet that appeared to be a drug transaction earlier on the day that he was arrested;

• that when he was arrested, he had almost $1,000.00 in cash in his pocket as well as being in possession of two cell phones and a digital scale that appeared to have the residue of white powdered cocaine on it; and,

• that a frisk search of his pockets and the initial cursory search of his vehicle did not turn up any drugs.

[27] Bell believed that Adu-Twum had drugs secreted on his person because none were located when he was frisked, and none were apparent on a cursory search of his vehicle. As Justice Watt noted at paragraph [71] of Muller:

[71] In Golden, the court referred to an officer's testimony that he had found evidence hidden in an individual's private parts in only five per cent of the more than 200 arrests he had made for dealing in crack cocaine. Nevertheless, the court noted that, although the prospect of finding drugs was "quite slim", "there was some evidence suggesting the possibility of concealment of narcotics": Golden, at para. 111. The court concluded [at para. 112] that, "[t]aken together, [the] circumstances would have been sufficient to create reasonable and probable grounds to conduct a strip search of the appellant at the police station". It follows that the evidence of the officers about the percentage of cases in which drugs might be found after a strip search of someone arrested for trafficking crack cocaine was a relevant, but not determinative, factor for the trial judge to consider.

[28] Bourgeois gave similar evidence about the percentage of occasions when strip searches yielded contraband. I have taken that piece of evidence into consideration.

[29] Despite the modest likelihood of locating contraband as a result of conducting a strip search in Bourgeois’ experience, having considered all of the circumstances, (and specifically noting that authorizing a strip search was not a matter of policy or mere routine for Bourgeois), I am of the view that he had the requisite grounds to conduct a strip search of Adu-Twum as an incident to his arrest for evidence of his possession of cocaine for the purpose of trafficking.

[30] Equally, I am of the view that the strip search of Adu-Twum was carried out in textbook fashion as directed by the Supreme Court of Canada in Golden.

[31] In particular:

(1) It was conducted at the police station.

(2) It was conducted in a manner that ensured the health and safety of all involved, in that the special constable conducting the search was gloved and never touched Adu-Twum.

(3) Bourgeois exercised supervisory authority and as the ranking officer on duty at the booking desk of the police station he authorized the strip search.

(4) Adu-Twum was a male and the search was conducted by a male special constable.

(5) While the door to the room remained slightly ajar in case a safety issue arose, the strip search was conducted by only one male special constable who was in the room with Adu-Twum and no one else could see into the room while the search was being carried out.

(6) The two officers who stood outside the room where the strip search was carried out did not otherwise participate in the event.

(7) No force whatsoever was involved in carrying out the strip search as Adu-Twum was compliant and cooperated throughout the search.

(8) The search took mere minutes and Adu-Twum was never completely undressed at any one time. He was asked to remove a piece of clothing, which he handed to the searching special constable. The special constable examined the item and then returned it to Adu-Twum who put the item back on after which he was requested to remove a different item and so forth and so on.

(9) The strip search only involved a visual inspection of Adu-Twum’s genital and anal areas without any physical contact.

(10) No contraband was located or discovered so the issue of giving Adu-Twum the option of removing an item never arose.

(11) A proper, albeit, belatedly filled in record of the reasons for the search and its manner of being carried out was kept by Bourgeois. That said, (and Tennant’s lack of appropriate note-taking aside), the officers involved in the search kept contemporaneous notes so that Bourgeois had no difficulty completing the administrative form that he failed to complete promptly. Moreover, there were extensive digitally recorded videos of the events leading to Adu-Twum being brought to the search room, so that a very complete digital record of the events was available.

[32] Adu-Twum did not testify or call any evidence on this application. That is not surprising since the onus was on the Federal Crown. I am satisfied that the Federal Crown has demonstrated that this strip search was authorized by law as a search incident to Adu-Twum’s arrest, that the law authorizing it was reasonable, and that it was carried out in a reasonable manner. (See R. v. Caslake, 1998 838 (SCC), [1998] S.C.J. No. 3.) As a result, the applicant’s claim of a breach of his s. 8 right to be secure against unreasonable search or seizure is dismissed.

The S. 10(b) Application

[33] Section 10(b) of the Charter requires that “everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.”

[34] “Without delay” means “immediately” subject to officer safety, public safety or such limitations as prescribed by law and justified under s. 1 of the Charter. The police have a duty to facilitate access to a lawyer immediately upon the detainee’s invocation of their rights under s. 10. (See R. v. Suberu, 2009 SCC 93 at paragraph [42] and see R. v. Taylor, 2014 SCC 50, [2014] S.C.J. No. 50 at paragraph [24].)

[35] While access to counsel need not be instantaneous, the arresting officer – in this case Tennant – is under a constitutional obligation to facilitate the requested access to a lawyer at “the earliest practical opportunity.” (See Taylor at paragraph [32].)

[36] Once a detainee has invoked their rights under s. 10 the state must provide them with a reasonable opportunity to consult counsel and, (except in urgent or dangerous circumstances), refrain from eliciting evidence from them until they have had that reasonable opportunity. (See R. v. Prosper, 1994 65 (SCC), [1994] 3 S.C.R. 236 at paragraph [34], R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429 at paragraph [29] and Taylor at paragraph [23] and [24].)

[37] Adu-Twum alleges that the NRPS purposely delayed facilitating his right to counsel. Having invoked his right to counsel the NRPS was obliged to provide Adu-Twum with a reasonable opportunity to exercise that right. In addition, the police were obliged to refrain from eliciting incriminatory evidence from him until they had afforded him a reasonable opportunity to consult with counsel.

[38] Adu-Twum also alleges a denial of the right to counsel of choice, as a result of Bourgeois’ refusal to allow Adu-Twum to call his mother to obtain contact information for his counsel of choice. During his evidence, Bourgeois, despite decades of service on the NRPS, and despite his supervisory position as the booking sergeant, candidly admitted that he did not know that a detainee was entitled to contact a third party to obtain information required to implement the detainee’s right to counsel. Moreover, he said that he did not receive any training before being placed in charge of the booking desk.

[39] Accordingly, there are two major s. 10(b) complaints. First, the police failed to implement Adu-Twum’s right to counsel in a timely way when the NRPS intentionally delayed his contact with counsel. Second, and in my view most significantly, the NRPS failed to permit Adu-Twum from accessing information that would allow him to contact his counsel of choice.

[40] This third party contact complaint is well-founded and amounts to a s. 10(b) breach.[^5] Mr. Anger initially denied that Adu-Twum’s right to contact his counsel of choice was breached by Bourgeois’ actions. He resiled from that position and ultimately accepted that breach. He continued to maintain that there was no breach by way of a delay of implementation. I will provide a timeline. Before doing so, I want to highlight two other matters that amount to s. 10(b) breaches disclosed by the evidence despite not being identified or complained of in Adu-Twum’s application or factum.

[41] First, before the strip search was performed, Bourgeois asked Adu-Twum if he had any contraband on his person. This was a request for incriminating admissions prior to Adu-Twum having been given a reasonable opportunity to consult with counsel. It was a breach of the obligation on the police to hold off questioning a detainee who has invoked their right to counsel until the detainee has been given a reasonable opportunity to consult with counsel.

[42] While Mr. Anger attempted to construe this request as coming within the exception to the rule as a matter of police safety, (because of the transdermal or aerosol dangers of fentanyl), there was no evidence to support that interpretation. Asking the question at that time was a breach of s. 10(b).

[43] The police were investigating Adu-Twum for cocaine trafficking not trafficking in fentanyl. The officer conducting the search was gloved up. That officer did not testify that he had any concerns about fentanyl. In addition, it is clear to me that regardless of what Adu-Twum answered he was going to be strip searched despite any answer that he made. In R. v. Pileggi, [2021] O.J. No. 32 at paragraph [73] the Court of Appeal noted that, “…it was the purpose of his question, and not the response, that violated the duty to hold off. The fact that the question did not yield any inculpatory evidence does not neutralize the Charter breach. The extent to which the violation was “fleeting” or “inconsequential” is more properly considered under s. 24(2) of the Charter.” Moreover, this issue was not raised by the Adu-Twum in his written materials so that the Federal Crown could not respond to it in its material or call evidence in response to this complaint.

[44] There was another s. 10(b) breach disclosed by the evidence, which was also not raised by Adu-Twum in his materials. Here too, the Crown was unable to respond to it in writing or to specifically call evidence directed to this complaint. This s. 10(b) breach was identified by Jamal J.A., (as he then was), in footnote 1 of R. v. Griffith, 2021 ONCA 302, at paragraph [72]:

Recent case law suggests that the failure of the police to inform an accused of the reasons for the delay in providing access to counsel, where such delay is justified, or to advise the accused when they might be allowed to speak to counsel, may constitute an independent breach of s. 10(b) of the Charter: see R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at paras. 45-46 (seeming to agree with the trial judge's finding at 2016 ONSC 4795, at para. 70, that the police should have advised the accused that they were suspending his s. 10(b) right); R. v. Shang En Wu, 2017 ONSC 1003, 35 C.R. (7th) 101, at para. 78. However, since this appeal was not argued on this basis, I refrain from further comment.

[45] This “independent breach” harkens back to R. v. Willier, 2010 SCC 37, at paragraph [41], which provides that s. 10(b) requires the police to afford detainees not only a reasonable opportunity to contact counsel of their choice but to facilitate that contact as well. Referencing that statement from Willier in their judgment, the Court of Appeal in R. v Traicheff, [2010] O.J. No. 5355 agreed with the following comment made by the trial judge in that case:

Appropriately the police should advise the detainee after waiting a reasonable period of time for his lawyer to return the call that no call has come in from his lawyer and ask him if he would like to consult another lawyer. Alternatively the police should ask the detainee whether he has another telephone number where his counsel of choice could be reached or give him a telephone directory to see if he could find his lawyer's name and another telephone number where he could be reached.[^6]

[46] To recapitulate then, the defence alleged two s. 10(b) breaches, while the evidence demonstrates two further s. 10(b) breaches. The four s. 10(b) breaches are:

(1) that the NRPS failed to implement Adu-Twum’s s. 10(b) right to counsel of choice;

(2) that the NRPS purposely delayed facilitating his right to counsel;

(3) that the NRPS failed to hold off questioning until Adu-Twum had been given a reasonable opportunity to consult with counsel; and,

(4) that the NRPS failed to inform Adu-Twum of the reasons for any justified delay in providing access to counsel or to advise him of when he might be allowed to speak to counsel.

The Failure to Implement Adu-Twum’s Right to Counsel of Choice

[47] In general, s. 10(b) requires the police to: (i) inform the detainee of their rights in Charter compliant terms; (ii) implement the detainee’s invocation of their right to counsel; and, (iii) refrain from eliciting evidence until a reasonable opportunity to exercise the invocation has been provided. (See R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173.)

[48] The NRPS complied with the informational component of s. 10(b). In response to being informed that he had the right to retain and instruct counsel without delay, Adu-Twum invoked that right. He did not know the name of the counsel that he wished to retain and instruct but he knew that he could get that name from his mother. So, he requested the opportunity to call her to obtain that name. Bourgeois refused to allow him to make that call and refused to arrange to have the call made by himself or by some other NRPS officer to get that information for Adu-Twum.

[49] By refusing to allow Adu-Twum to make that call and by refusing to arrange to have that call made on Adu-Twum’s behalf, Bourgeois breached Adu-Twum’s s. 10(b) right to retain and instruct his counsel of choice.

[50] In R. v. Leclair, 1989 134 (SCC), [1989] 1 S.C.R. 3, at paragraph [13], Lamer J., speaking for the majority held that under s. 10(b) a detainee has a right to consult with counsel of their choice.

13 At this juncture, I would underline the fact that the appellant Leclair was asked if he wanted to call another lawyer and his answer was "no". The Crown's submission was that by giving this answer Leclair waived his right to counsel. I do not agree. Leclair had clearly indicated that he wished to contact his lawyer. The mere fact that he did not want to call another lawyer cannot fairly be viewed as a waiver of his right to retain counsel. Quite the contrary, he merely asserted his right to counsel and to counsel of his choice. Although an accused or detained person has the right to choose counsel, it must be noted that, as this Court said in R. v. Tremblay, 1987 28 (SCC), [1987] 2 S.C.R. 435, a detainee must be reasonably diligent in the exercise of these rights and if he is not, the correlative duties imposed on the police and set out in Manninen are suspended. Reasonable diligence in the exercise of the right to choose one's counsel depends upon the context facing the accused or detained person. On being arrested, for example, the detained person is faced with an immediate need for legal advice and must exercise reasonable diligence accordingly. … [A]ccused or detained persons have a right to choose their counsel and it is only if the lawyer chosen cannot be available within a reasonable time that the detainee or the accused should be expected to exercise the right to counsel by calling another lawyer.

[51] Similar holdings were made, at paragraph [35] of R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429 and at paragraph [17] of R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402.

35 Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation: …

17 As explained in Willier, the right to choose counsel is one facet of the guarantee under s. 10(b) of the Charter. Where the detainee opts to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles him or her to a reasonable opportunity to contact chosen counsel. If the chosen lawyer is not immediately available, the detainee has the right to refuse to contact another counsel and wait a reasonable amount of time for counsel of choice to become available.

[52] At paragraph [82] of R. v. Bennett, 2015 ONCJ 187, Justice Schwarzl noted that “[t]he police must generally permit the detainee to contact a third party, such as a spouse, parent, neighbour, clergyman, paralegal, etc. to facilitate contact with counsel. It may be reasonable for the police to make those contacts on behalf of the detainee: R. v. Tremblay (1987) 1987 28 (SCC), 37 C.C.C. (3d) 565 (S.C.C.); R. v. Crossman, [1991] B.C.J. No. 729 (C.A.); R. v. Kumarasamy, [2002] O.J. No. 303 (S.C.J.) R. v. Barran, [2004] O.J. No. 1686 (O.C.J.).”

[53] In R. v. Kumarasamy, [2002] O.J. No. 303, at paragraphs [25] and [26] Durno J. wrote:

25 In the vast majority of cases, once the detainee has expressed a desire to contact counsel, police must facilitate the detainee's efforts to do so: R. v. Brydges (1990), 1990 123 (SCC), 53 C.C.C. (3d) 330 S.C.C. This obligation includes facilitating contact with counsel of choice where a request has been made to speak to a specific counsel. This is so whether the person has counsel's number available or not. It also includes permitting a phone call to a friend or relative to obtain the name of counsel of choice.

26 This is not to say that a detainee is always entitled to make one or a series of calls to friends or relatives. The determination must be made on a case by case basis. No doubt there will be rare cases where a call to a friend or relative in private could jeopardize an ongoing investigation. For example, if the detainee has accomplices who had not been arrested, or if persons or property could be placed in jeopardy by permitting a call to someone other than a lawyer, a delay might be justified. That is not the case here.

[54] As these various excerpts demonstrate, this implementational obligation is not new law. It is literally decades old. As the commanding officer in the booking area, Bourgeois ought to have been familiar with it.

[55] Recently and authoritatively, our Court of Appeal in R. v. Pileggi, 2021 ONCA 32 at paragraph [86] stated that “… this court recognized in R. v. Blake, 2015 ONCA 684 … at para. 14, the right to counsel includes the right to contact counsel of choice as well as the right to contact a third party to access counsel of choice.” What the Court said at paragraph [14] of Blake was that “[p]olice have a duty to facilitate access to a lawyer immediately and that includes the right to contact counsel of choice as well as the right to contact a third party to facilitate access to counsel: see R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 24; R. v. K.W.J., 2012 NWTCA 3, at paras. 32-33.”

[56] In Pileggi, the officer who gave Pileggi his rights to counsel agreed to speak to Pileggi’s father and facilitate contact with Pileggi’s counsel of choice after doing so. Bourgeois refused to make a similar call on behalf of Adu-Twum but, that significant point aside, the officer in Pileggi did not make the implementational call that he had undertaken to make. Rather, he assumed a transporting officer would follow through even though he failed to instruct that transporting officer to do so. (Similarly, Bourgeois assumed Tennant would implement a call to Singh for Adu-Twum, albeit Singh was not Adu-Twum’s counsel of choice.) Justice Trotter penned the judgment in Pileggi. He had no difficulty concluding that the failure of the police to fulfil their undertaking to contact Pileggi’s father in order to obtain the name of the counsel that he had chosen to speak to was an infringement of Pileggi’s rights under s. 10(b) of the Charter.[^7]

[57] Justice Trotter noted that a measure of diligence is expected of a detainee who invokes their rights to counsel but he held that contours of that issue did not require resolution in that case.[^8] Rather, he resolved the counsel of choice issue that arose in Pileggi as follows:

[92] This case does not require the court to confront the precise contours of the interaction between the right to consult counsel of choice and the availability of duty counsel. The issue in this case may be resolved in a much more straightforward manner. The police had undertaken the role of ascertaining the name of a lawyer from the appellant's father. They failed to do so. Granted, at some point at the police station, a call was made to a specific lawyer, either by the appellant or at his behest. And while the respondent attempts to credit the police with this event, there was no evidence about how the circumstances of this attempt to contact counsel unfolded.

[58] A fortiori, Bourgeois’ refusal to contact Adu-Twum’s mother for similar information was a serious s. 10(b) Charter infringement. Bourgeois ought to have been familiar with his obligations and allowed Adu-Twum to call his mother or arranged for his mother to be called so that she could provide the information that Adu-Twum needed to have a reasonable opportunity to contact his counsel of choice. In my view, this is the most serious s. 10(b) breach that occurred.

Was There a Delay in Implementing Adu-Twum’s s. 10(b) Rights?

[59] An event timeline is required before this question can be answered.

Time The Evidence

10:13 a.m. Bell calls Tennant and instructs him to stop and arrest Adu-Twum.

10:26 a.m. to 10:29 a.m., approximately Tennant stops and arrests Adu-Twum at approximately this timeframe and gives Adu-Twum his rights. Adu-Twum invokes his rights but tells Tennant that he does not have his lawyer’s name.

10:30 a.m. to 10:32 a.m. approximately While Adu-Twum remains detained in the rear of Tennant’s vehicle, Tennant assists Bell in doing a cursory search of the driver’s seat area of Adu-Twum’s vehicle but does not discover anything.

10:33 a.m. approximately to perhaps 10:48 a.m. to 10:58 a.m. Tennant leaves the scene of arrest and transports Adu-Twum to NRPS headquarters in Niagara Falls for booking. Tennant does not note the time of his leaving or the time of his arrival and estimates the trip took 15 to 25 minutes.

10:34 a.m. Bell calls Bourgeois and requests that Bourgeois order a strip search of Adu-Twum when he is paraded before Bourgeois.

10:58 a.m. Tennant arrives at headquarters but is required to wait in the sally-port until instructed by Bourgeois to bring Adu-Twum into the booking area.

10:58 a.m. Bell calls Bourgeois and directs him to delay implementation of Adu-Twum’s rights to counsel until the police can secure two residences, (at 55 Pelham Road and 527 Carlton Street), that the Bell believed might contain evidence of cocaine trafficking by Adu-Twum.

11:08 a.m. Adu-Twum is brought before Bourgeois who begins to book him into custody. Tennant is standing beside Adu-Twum and he tells Bourgeois that he has given Adu-Twum his rights to counsel. The booking process takes about four minutes, according to Bourgeois.

11:09 a.m. Adu-Twum requests that he be allowed to call his mother in Toronto to obtain the name of his lawyer in Toronto. Bourgeois refuses to permit him to do so. Adu-Twum says that if he can’t make that call then he wishes to contact Singh, a local defence counsel.

11:12 a.m. Bourgeois tells Adu-Twum that he will be subjected to a strip search.

11:14 a.m. Applicant is strip searched by Special Constable Dave Bolton. The search takes less than four minutes to be completed and is completed by 11:19 a.m.

11:19 a.m. (Bell has this call timed at 11:21 a.m.) Bourgeois calls Bell to report that the strip search did not yield any evidence. In that call Bell tells Bourgeois to continue to delay implementing Adu-Twum’s rights to counsel in order not to compromise the safety of officers while awaiting a search warrant for an apartment in 527 Carlton Street.

11:21 a.m. After receiving a call from Bourgeois that the strip search was negative Bell discovers a loose drivers’ side door panel in Adu-Twum’s vehicle behind which he discovered a cache of cocaine.

11:37 a.m. Bell is contacted by members of his team and told that there is no need to attempt to obtain search warrants for either address. Bell calls Bourgeois to say that Adu-Twum’s right to counsel can now be implemented.

11:48 a.m. Tennant places a call to Singh.

12:09 p.m. Tennant leaves headquarters.

12:56 p.m. Bell calls Bourgeois to say that he cannot get the windows in Adu-Twum’s vehicle up so that the car cannot be secured. Bourgeois speaks to Adu-Twum who tells Bourgeois to call his girlfriend to deal with the car’s window issue.

1:09 p.m. Adu-Twum is brought to phone room to speak with counsel.

[60] In addition to this chronology, the following facts need to be noted. Tennant testified that he called Singh’s office. Tennant did not make a note of why he made that call. He testified that he could not recall how he got that lawyer’s name. He said that he believes that someone told him to call that lawyer for Adu-Twum.

[61] Tennant also testified that he could not recall if he reached anyone at Singh’s office and he did not make any notation about leaving any message at Singh’s office to have Singh call the station to speak to Adu-Twum.

[62] Bourgeois said that the practice that he was familiar with was that the officer-in-charge is supposed to implement a detainee’s right to counsel by making a call to the detainee’s counsel of choice. He believes that he told Tennant to call Singh for Adu-Twum but that, in any event, Tennant used to be a special constable so that he knew to do it.

[63] Despite the failure of Tennant’s memory, effectively caused by his deficient note-taking practices, the video recording of the booking process that was played and exhibited shows Tennant standing close by Adu-Twum and within easy hearing distance from him when Adu-Twum said that if he could not make the call to his mother then he wanted to speak to Vijai Singh. I find that Tennant called Singh for Adu-Twum because that was the local defence counsel that Adu-Twum named when his request to contact his counsel of choice was thwarted by Bourgeois’ refusal to implement his invocation. Tennant knew to call Singh for Adu-Twum because he heard Adu-Twum request that Singh be called when Bourgeois refused to allow him to call his mother for the name of the lawyer in Toronto that he wanted to speak to.

[64] Adu-Twum was arrested and given his rights to counsel by 10:30 a.m. He was booked into custody commencing at 11:08 a.m. after being transported from Welland to the headquarters of the NRPS in Niagara Falls. In my view there was no reasonable opportunity to implement his rights to counsel during that period nor any delay in implementing his rights to counsel during that period of time that would constitute any breach of s. 10(b). In my view, the two or even few minutes that Tennant spent searching Adu-Twum’s car before taking him to be booked are inconsequential and of no legal moment.

[65] I have previously ruled that the strip search that he was subjected to was not a breach of his rights under s. 8 of the Charter. That strip search was completed by 11:19 a.m. As a search incident to his arrest, the police were entitled to carry it out before implementing his right to counsel. So, despite Bell calling Bourgeois at 10:58 a.m. and directing him to delay implementing Adu-Twum’s right to counsel, the period between his arrest at just before 10:30 a.m. through to the completion of his strip search at 11:19 a.m. does not amount to any non-constitutional delay in the implementation of those rights.

[66] As Madam Justice Charron observed in R. v. Latour, 1997 1615 (ON CA), [1997] O.J. No. 2445 (C.A.), (albeit with respect to an approved screening device demand issue), “The detained person has no cause for complaint as the events will have unfolded in accordance with the legislative scheme and within its constitutional boundaries. I see no sound policy reason for requiring that the statutory requirements be met by design rather than by chance. Compliance is compliance whether fortuitous or otherwise.”

[67] It is the one hour and 50 minute period from 11:19 a.m. through to 1:09 p.m. where any implementational delay breach may have occurred. To recapitulate that period, the following events occurred at the following timestamps

11:19 a.m. (Bell has this call timed at 11:21 a.m.) Bourgeois calls Bell to report that the strip search did not yield any evidence. In that call Bell tells Bourgeois to continue to delay implementing Adu-Twum’s rights to counsel in order not to compromise the safety of officers while awaiting a search warrant for an apartment in 527 Carlton Street.

11:21 a.m. After receiving a call from Bourgeois that the strip search was negative Bell discovers a loose driver’s side door panel in Adu-Twum’s vehicle behind which he discovered a cache of cocaine.

11:37 a.m. Bell is contacted by members of his team and told that there is no need to attempt to obtain search warrants for either address. Bell calls Bourgeois to say that Adu-Twum’s rights to counsel can now be implemented.

11:48 a.m. Tennant places a call to Singh.

12:09 p.m. Tennant leaves headquarters.

12:56 p.m. Bell calls Bourgeois to say that he cannot get the windows in Adu-Twum’s vehicle up so that the car cannot be secured. Bourgeois speaks to Adu-Twum who tells Bourgeois to call his girlfriend to deal with the car’s window issue.

1:09 p.m. Adu-Twum is brought to phone room to speak with counsel.

[68] At 11:19 p.m., by Bourgeois’ watch, or at 11:21 a.m. by Bell’s, Bell instructs Bourgeois to continue delaying any call to counsel for Adu-Twum. Bell rescinds that request at 11:37 a.m. This is a period of approximately 20 minutes. This delay was caused by Bell not seeking a search warrant for either address that he felt might produce evidence of drug trafficking by Adu-Twum before Bell instructed Tennant to arrest Adu-Twum. If Bell was entitled to make the decision not to seek warrants before electing to have Adu-Twum arrested, then this 20-minute period is excluded from constitutional complaint.

[69] In R. v. Griffith, 2021 ONCA 302, at paragraphs [39] to [41], Justice Jamal ruled that the correct approach to assessing delays in the implementation of a detainee’s invocation of their s. 10(b) rights to counsel was to exclude from that assessment any time required by case-specific circumstances adduced in evidence to which the police had turned their mind before permitting the delay to occur.

[70] In my view Bell did not seek these search warrants because he had no basis to do so on the evidence. The fact that his team members spoke to occupants at the addresses that morning and then reported back to Bell that there was no basis for pursuing warrants, demonstrates that the NRPS could not satisfy a Justice that there were “reasonable grounds to believe” a search of these addresses would yield evidence of drug possession by Adu-Twum for the purposes of trafficking. That is to say, the evidence adduced at trial did not demonstrate more than police suspicion.

“ …The State's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point where credibly-based probability replaces suspicion. History has confirmed the appropriateness of this requirement as the threshold for subordinating the expectation of privacy to the needs of law enforcement. …” [Hunter et al. v. Southam Inc. (1984), 1984 33 (SCC), 14 C.C.C. (3d) 97 (S.C.C.) at 114 –115]

[71] Equally, I am of the view that there were no exigent circumstances which afforded Bell any cause to instruct Bourgeois to delay implementation of Adu-Twum’s rights to counsel. To the extent that Bell had any real concern about either the potential destruction of evidence or any potential concern about the safety of any of his team members, those concerns were manufactured by the choices that he made; viz.: (i) by not attempting to obtain search warrants before he arranged to have Adu-Twum arrested; and (ii) by not sending a sufficient number of officers to each address before he arranged to have Adu-Twum arrested. In R. v. Hobeika, 2020 ONCA 750 at paragraph [49] Justice Doherty held that “[i]f the police strategy created the supposed urgency, the circumstances are not “exigent”, but are anticipated, if not planned for, by the police:”

[72] Accordingly I am of the view that this period of approximately 20 minutes was a breach of Adu-Twum’s s. 10(b) rights to have his invocation of counsel implemented.

[73] At 11:37 a.m. Bell promptly contacted Bourgeois and told him to implement Adu-Twum’s rights to counsel as soon as his team members told him there was no evidentiary point to pursuing warrants to search the two addresses that Bell suspected might provide evidence of drug-trafficking or possession of drugs for the purpose of trafficking by Adu-Twum.

[74] Whether Bourgeois was tardy in relaying that information to Tennant or whether Tennant was tardy in carrying it out is not clear on the evidence. Regardless, I accrue this further ten minutes of delay to the prior 20 minutes already identified. The result is a total of approximately 30 minutes of delay in implementing Adu-Twum’s invocation of his rights to counsel.

[75] October 1, 2019 was a Tuesday. I accept Tennant’s evidence that he called Singh. Adu-Twum did not give evidence and called no evidence on the application, other than through cross-examination of the Crown’s witnesses. I find that Singh or a lawyer from his office eventually responded to Tennant’s call and asked to speak to Adu-Twum shortly after 1:00 p.m. and Adu-Twum was brought to the private telephone room at the police station so that his rights to counsel could be implemented, albeit not with his counsel of choice at 1:09 p.m. on October 1, 2019.[^9]

[76] To reiterate, there were four s. 10(b) breaches:

(1) that the NRPS refused to implement Adu-Twum’s s. 10(b) rights to counsel of choice;

(2) that the NRPS purposely delayed facilitating his right to counsel for a period of approximately 30 minutes;

(3) that the NRPS failed to hold off questioning; and,

(4) that the NRPS failed to inform Adu-Twum of the reasons for any justified delay in providing access to counsel or to advise him of when he might be allowed to speak to counsel.

[77] Breaches [3] and [4] were not raised by Adu-Twum in his written materials so that the Crown had no opportunity to respond to those breaches in its materials or to expressly call evidence to respond to them, either.

The Failure To Hold Off

[78] Prior to the strip search being conducted Bourgeois asked Adu-Twum to voluntarily produce any contraband that he had secreted on his person. Mr. Anger contended that that request came within the police safety exception to holding off until a detainee’s rights to counsel had been implemented. I do not agree on the facts of this case.

[79] Pileggi, at paragraph [71] states:

71 Once a detainee has been informed of his rights under s. 10(b) of the Charter, and that person indicates that they wish to retain counsel, the police have a "duty to hold off questioning or otherwise attempting to elicit evidence from the detainee": R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402, at para. 17. See also R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 26; R. v. Manninen, 1987 67 (SCC), [1987] 1 S.C.R. 1233, at pp. 1242-1244; R. v. Prosper, 1994 65 (SCC), [1994] 3 S.C.R. 236, at pp 269-278. This duty also prevents the police from interacting with an accused person, short of questioning, in a manner that triggers a response from the accused - i.e., something that is a "functional equivalent" of an interrogation: R. v. McKenzie (2002), 2002 45009 (ON CA), 167 C.C.C. (3d) 530 (Ont. C.A.), at para. 36.

[80] Moreover, as I noted previously, while no questions were directed to Bourgeois on this point, I am certain that had Adu-Twum responded and indeed, no matter what he responded, the strip search would have occurred in any event.

[81] Again, following Pileggi at paragraphs [73] and [74], the Court of Appeal has held that a question which invites incriminatory information before a detainee’s invocation is implemented is a breach of s. 10(b).

73 The respondent submits that any failure in the duty to hold off was "fleeting and inconsequential". It is true that the appellant declined to answer Sgt. Buligan's question. It is also true that the question was unsuccessful in eliciting any evidence. However, the breach arose because the officer attempted to elicit incriminating information in the first place. In other words, it was the purpose of his question, and not the response, that violated the duty to hold off. The fact that the question did not yield any inculpatory evidence does not neutralize the Charter breach. The extent to which the violation was "fleeting" or "inconsequential" is more properly considered under s. 24(2) of the Charter.

74 I would find that the trial judge erred in failing to find this violation of the appellant's s. 10(b) rights.

Failure to Keep Adu-Twum Advised of Implementation Efforts

[82] Another s. 10(b) breach disclosed by the evidence at this trial was identified by Jamal J.A., (as he then was), in footnote 1 at paragraph [72] of R. v. Griffith, 2021 ONCA 302 that I have quoted at paragraph [44] above.

Implementational Delay

[83] The NRPS purposely delayed facilitating Adu-Twum’s right to counsel for a period of approximately 30 minutes, from 11:19 a.m., when the strip search concluded, until 11:48 a.m., when Tennant called Singh’s office for Adu-Twum.

[84] Adu-Twum urged that the period of delay was much longer. That it began when Tennant spent a couple of minutes searching his car at 10:30 a.m. and that it continued until 1:09 p.m. when he was brought to the phone to speak with Singh or someone from his office. I disagree for the reasons expressed above.

[85] Despite my finding that the implementational delay was only about 30 minutes, once Tennant called Singh no NRPS member did anything thereafter to keep Adu-Twum apprised of the efforts made or being made to implement his rights to counsel. Indeed, after Adu-Twum named Singh as his next choice of counsel no one apparently spoke to him again about his invocation until he was brought to the telephone about two hours later.

[86] Tennant left the police station at 12:09 p.m. without making any further efforts to see if Singh had called back, and without speaking to Adu-Twum about the call that he had placed for him. This lack of contact with Adu-Twum by Tennant or Bourgeois or any other officer at any point after his invocation is the substance of the fourth s. 10(b) breach, namely, failing to keep Adu-Twum informed of the reasons for the delay in providing access to counsel or in failing to advise him of when he might be allowed to speak to counsel.

[87] While the NRPS could have done much more to keep Adu-Twum informed, they cannot be faulted for the lack of a prompt return call by Singh. Adu-Twum was diligent in his invocation and exercise of his rights to counsel. When thwarted in contacting his counsel of choice, he promptly defaulted to Singh. It may be somewhat speculative, but it is not difficult to imagine what Adu-Twum might have done if the NRPS had told him there was no prompt response from Singh.

[88] Returning to the issue of implementational delay, (albeit only the modest 30 minute delay that I have found), the defence relies on R. v. Rover, 2018 ONCA 745, while the Crown relies upon several cases decided subsequently that appear to distinguish Rover’s application, namely:

• R. v. Hobeika, 2020 ONCA 750;

• R. v. Leonard, 2020 ONCA 802;

• R. v. Pileggi, 2021 ONCA 4; and,

• R. v Griffith, 2021 ONCA 302.

Rover

[89] In all of these cases despite the lack of any causal connection between the Charter breaches and the discovery of the impugned evidence, the Court of Appeal has consistently followed Justice Laskin’s analysis in R. v. Pino, 2016 ONCA 389, and held that on a generous view of the meaning of “obtained in a manner” a causal connection is not required for a finding that evidence was obtained in a manner that infringed the Charter, provided a not too remote temporal and contextual connection exists between the discovery of the evidence in question and the Charter breach or breaches alleged. This analysis applies in Adu-Twum’s case. (Reference can he made to Griffith at paragraph [101] where Justice Jamal discusses Justice Laskin’s analysis in Pino.)

[90] “That said, the absence of any such connection remains a relevant consideration. In R. v. Lenhardt, 2019 ONCA 416 … at para. 11, [the Court of Appeal] held: ‘There need not be a causal relationship to establish a case for exclusion under s. 24(2), but the absence of any such connection is a factor weighing against exclusion.’ See also R. v. Do, 2019 ONCA 482, at para. 12. …” (Griffith at [108])

[91] In Rover a detainee was precluded as a matter of police policy[^10] from having his invocation implemented for several hours while the police obtained a search warrant for the address from which he was trafficking. They did not turn their mind to whether that delay was required on the specific facts of that investigation.

[92] Doherty J.A., at paragraph [28] accepted the following as being an apt summary of the law:

“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. …

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.” (Emphasis added by Doherty J.A.)

[93] Doherty J.A., at paragraphs [33] and [34] held:

[33] In my view, to fall within the exception to the requirement that an arrested person be allowed to speak to counsel without delay, the police must actually turn their mind to the specific circumstances of the case, and they must have reasonable grounds to justify the delay. The justification may be premised on the risk of the destruction of evidence, public safety, police safety, or some other urgent or dangerous circumstance. Furthermore, if the police determine that some delay in allowing an arrested person to speak to counsel is justified to permit execution of the warrant, then they must consider whether it is necessary to arrest the individual before they execute the warrant. The police cannot create a justification for delaying access to counsel by choosing, for reasons of convenience or efficiency, to arrest an individual before seeking, obtaining and executing a search warrant. Police efficiency and convenience cannot justify delaying an arrested person's right to speak with counsel for several hours.

[34] The effective implementation of the right to counsel guaranteed by s. 10(b) depends entirely on the police. The police must understand that right and be willing to facilitate contact with counsel. The practice under which the officers involved in this case operated demonstrates a disregard of a fundamental constitutional right. The appellant's right to speak with counsel was denied at the time of his arrest, when the police refused his request to speak with counsel.

[94] In assessing whether the evidence discovered when the search warrant was executed as a result of this s. 10(b) implementational breach ought to be excluded, the court in Rover at paragraph [36] explained, (relying on paragraph [70] of R. v. Grant),[^11] that the exclusionary rule in s. 24(2) “operates on the assumption that the routine admission of constitutionally tainted evidence must have a long-term negative effect on the repute of the administration of criminal justice.”

[95] Rover states expressly, at paragraph [37] that, “[t]he systemic nature of the violation plays a central role in assessing its long-term impact on the proper administration of justice.”

[96] The evidence was excluded by the Court of Appeal on the Grant analysis because the state misconduct was very serious as it reflected police disinterest in Rover’s rights. Justice Doherty noted that the police did not turn their minds to any actual need for delay. Further, if there was a need they did not consider mitigating it by applying for a warrant before arresting Rover, which would have obviated their felt need to withhold his access to counsel for hours.

[97] In re-assessing the impact on Rover’s Charter-protected interests (while not expressly rejecting the trial judge’s assessment of that impact as moderate, because there was no causal connection between the breach and the discovery of any evidence),[^12] the Court found the delay to be almost six hours and not the hour and 20 minutes as found by the trial judge, and that it had a significant negative impact on Rover’s Charter-protected rights.

[98] In reaching this conclusion, Justice Doherty noted that Rover was held for several hours without being given any explanation for the delay in implementing his invocation and without being told when he might be allowed to speak to counsel. Those comments were noted by Justice Jamal in Griffith as comprising an independent s. 10(b) breach. (See paragraph [44] above.)

[99] Finally, despite acknowledging that the impact of excluding the evidence on society’s interest in an adjudication of the case on its merits was to allow a guilty person to go free, the court held, at paragraph [49] that, “this is one of those cases in which the long-term repute of the administration of justice required the sacrifice of the short-term benefit of an adjudication on the merits of this case.”

[100] Mr. Buchanan, on behalf of Adu-Twum urges that his client’s fact-pattern is an analogue and that the same result should obtain. The Crown demurs and offers subsequent Court of Appeal decisions to the contrary as being more apt, beginning with R. v. Hobeika, 2020 ONCA 750.

Hobeika

[101] In Hobeika the implementational delay was over four hours and there was no reasonable explanation for it. Doherty J.A. penned this decision, too. He upheld the trial judge’s decision not to exclude the evidence on a de novo s. 24(2) analysis stressing that there is no automatic rule of exclusion of evidence obtained in a manner that infringed a constitutional right.

[102] The onus is on the accused “to establish ‘having regard to all the circumstances the admission of it [the evidence] in the proceeding would bring the administration of justice into disrepute.” (Hobeika at paragraph [76])

[103] He noted that each s. 24(2) assay is case specific and there was a paucity of evidence about how the delay occurred. While Hobeika did not testify on the voir dire, Justice Doherty characterized this over four-hour implementational delay as a significant s. 10(b) breach.

[104] Still, the evidence was not excluded. Why? Justice Doherty highlighted these facts:

• there was no evidence of a police pattern of ignoring constitutional rights;

• the investigation was somewhat complex and involved the execution of search warrants; and,

• there was no evidence of any other constitutional breach.

[105] Despite the foregoing bulleted facts, Justice Doherty also noted:

• the lengthy implementational delay reflected a “troubling” police indifference to Hobeika’s s. 10(b) rights;

• this was not a good faith error;

• this was not an issue of constitutional uncertainty; and,

• there were no circumstances that ameliorated the breach.

[106] In the light of these facts and circumstances Justice Doherty observed that, “[a] serious breach of a long-established and well-understood constitutional right can lead to exclusion of evidence, even where the breach is not systemic in nature, or part of a pattern of police misconduct”. (Hobeika at paragraph [82])

[107] Turning to the tripartite test developed in Grant, Justice Doherty distinguished his prior decision in Rover on the basis that there “the police withheld access to counsel for several hours, pursuant to a police protocol which routinely denied access to counsel by arrested persons if search warrants were being obtained or executed in respect of the offence for which the person had been arrested.” (Hobeika at paragraph [85])

[108] In conclusion, at paragraphs [88] to [90], having characterized the implementational delay breach in Hobeika as “a situation-specific, isolated failure, albeit a serious one” and having referenced paragraph [36] of R. v. Harrison, 2009 SCC 34, where former Chief Justice McLachlin emphasized the qualitative nature of the balancing process required by s. 24(2) that can result in disparate results, Justice Doherty came down on the side of admissibility.

Leonard

[109] Next chronologically is R. v. Leonard 2020 ONCA 802. Leonard was arrested away from his residence for drug allegations. He was also believed to be in possession of a firearm. He invoked his rights to counsel, but the police delayed implementing those rights for about 3.5 hours while they obtained a search warrant for his residence for the reputed firearm. Despite that delay the drugs found on his person were admitted into evidence and that decision was upheld on his appeal.

[110] The trial judge found the delay to be reasonable and articulated the appropriate test. While that was not quoted in the Court of Appeal’s reasons for decision, I infer the trial judge said something like the test approved of by the Court in Rover.

[111] Once again, the Court of Appeal distinguished Rover on the basis that in Leonard the police had turned their minds to the specific circumstances of his investigation before delaying the implementation of his invocation.

Pileggi

[112] The penultimate case in this series is R. v. Pileggi, 2021 ONCA 4. There was a dynamic entry into Pileggi’s home. While a number of points were taken by Pileggi on his appeal, the only matters germane to Adu-Twum’s application are the s. 10(b) issues. In Pileggi the trial judge erred in finding no s. 10(b) breach in respect of a three-hour delay in implementing Pileggi’s invocation and in questioning him before he was given the opportunity to speak to counsel. In addition, there was a denial of counsel of choice. Despite these breaches which resulted in evidence having been obtained in a manner that infringed Pileggi’s s. 10(b) rights, the admission of that evidence was upheld on appeal.

[113] Given these several parallels to the issues at bar a closer review of Pileggi is required.

[114] The first breach in Pileggi was an almost immediate breach of the duty to hold off when, after invocation but before implementation, an officer asked Pileggi if he would like to tell the police where any drugs were. The second breach began within minutes after the first breach when another officer undertook to contact Pileggi’s father to obtain contact information for Pileggi’s counsel of choice and then failed to follow through on his undertaking, neither calling himself nor instructing some other officer to do so.

[115] In its Grant analysis on the seriousness of the breach Justice Trotter agreed that it was “entirely inappropriate” to have questioned Pileggi before implementation. That the questioner did not inquire about the status of Pileggi’s s. 10(b) rights before doing so was “concerning”. A fortiori, Bourgeois’ question was even more concerning since he was both woefully ignorant of the extent of his obligations to assist in the implementation of Adu-Twum’s s. 10(b) invocation and he actually knew that Adu-Twum’s rights had not been implemented when he asked him for incriminating information.

[116] However, as in Pileggi this exchange was “fleeting and inconsequential” and no further evidence was obtained as a result of the question. Moreover, since this breach was not identified as a source of complaint in this application, so that the Crown was not able to respond to it nor call evidence in response to it, both the seriousness of it and its impact on Adu-Twum’s Charter-protected rights are diminished. Still, it remains to be considered on a cumulative breach basis.

[117] Justice Trotter characterized the three-hour failure of the police to properly implement Pileggi’s right to counsel as “more serious” despite being unintentional and due to a lack of communication between officers, as well as lacking any institutional or systemic component. Justice Trotter characterized that breach as being “situation-specific”.

[118] It seems to me that the breach of Adu-Twum’s right to contact his counsel of choice was substantially more egregious since it was an intentional decision, albeit one grounded in ignorance. Additionally, Bourgeois was prepared to obtain contact information for that counsel via the internet. Still, he failed to appreciate that Adu-Twum wanted to contact his mother for the name of the counsel so that his offer to search the internet was of no value to Adu-Twum.

[119] Trotter J.A. also distinguished R. v. Noel, 2019 ONCA 860 where no call was made to counsel for three hours. Because of the seriousness of that breach, the Court of Appeal excluded the evidence since, “[f]rom the beginning the police appear to have had a somewhat cavalier attituded about a fundamental, important, and long-settled Charter right to consult counsel without delay.” (Noel at paragraph [32])

[120] Each case must be assessed individually, and there are elements of a similar cavalier attitude here. While I acknowledge that Bourgeois offered to assist Adu-Twum with an internet search his offer was valueless to Adu-Twum on these facts. That offer demonstrates an element of bona fides but, does not repair the very serious lack of appreciation for the ambit of his obligations. Moreover, no one kept Adu-Twum apprised of any efforts made to contact Singh. Adu-Twum was kept in the dark about when any call was made on his behalf, and despite having made a call to Singh for Adu-Twum, Tennant never told Adu-Twum of having done so.

[121] This lack of communication with Adu-Twum about the implementational steps being taken on his behalf can be contrasted with the speed with which the police contacted him when Bell could not raise the windows of Adu-Twum’s vehicle. The NRPS had no difficulty speaking to him when it prompted their convenience.[^13]

[122] The NRPS were cavalier in how they implemented Adu-Twum’s rights to counsel, to the extent that they did. After Bourgeois seriously breached Adu-Twum’s right to contact a counsel of his choice, Bell instructed Bourgeois to improperly delay implementing Adu-Twum’s rights. Then Tennant failed to properly document the call he made to Singh’s office. Tennant could not say who he reached and what information he provided or even if he left a message. In addition, the NRPS demonstrated their cavalier attitude towards honouring s. 10(b) by failing to keep Adu-Twum apprised of what efforts they had made to contact counsel and when he might be able to speak with counsel. Their failure to keep Adu-Twum in the loop can be contrasted with their willingness to speak to him, (about his car windows), when that contact inured to their convenience.

[123] I should note that Bourgeois provided some evidence about NRPS policies: only one detainee was allowed to be in the booking area at a time; male and female detainees should not cross paths in the booking area; and, adults and youths should not cross paths in the booking area. In addition, because the remote bail hearing facility was near the booking area, an ongoing bail hearing could delay access to counsel as the private phone room was in the same area of the booking desk, too. However, Bourgeois had no actual knowledge that any of these policies or room configurations played any part in the timing of Adu-Twum’s access to Singh at 1:09 p.m.

[124] Returning to Pileggi, Justice Trotter distinguished Noel where the evidence was excluded on several bases: first, because the evidence in Pileggi did not rise to the level of carelessness demonstrated in Noel; second, a number of efforts to contact counsel were made on Pileggi’s behalf when he was at the station; third, he was kept informed of those efforts; and, fourth, no one attempted to elicit information from him.

[125] Justice Trotter found that the facts in Pileggi were more similar to the facts in Hobeika where the serious breach of a five-hour implementation delay was outweighed by other Grant factors. Despite the distinguishing factors noted in the preceding paragraph, the implementation breach in Pileggi was still serious and not a good faith error due to the negligence involved.

[126] While the length of implementational delay in Adu-Twum’s case is slight in comparison – perhaps 30 minutes versus several hours in cases like Pileggi and Hobeika – this slight delay is augmented by: (i) the lack of any justification for it; (ii) the lack of any information being provided to Adu-Twum by the NRPS; and, (iii) the lack of documentation of contact efforts made by Tennant. Added to those facts is the profoundly serious breach of his right to counsel of choice, making the case at bar a substantially more serious breach than the breaches in Pileggi, in my view. The first Grant factor, the seriousness of the breach, very strongly favours exclusion of the drugs found in Adu-Twum’s car.

[127] Justice Trotter then turned to the second Grant factor – the impact of the breach on Pileggi’s Charter-protected interests. Referencing Rover at paragraph [43], which referenced Grant at paragraph [122], Justice Trotter characterized the impact as less than “serious” due to the absence of any causal connection between the discovery of the evidence and the s. 10(b) breaches.[^14] Similarly, Bourgeois’ failure to hold off when he requested that Adu-Twum voluntarily give up any drugs secreted on his person, (like the question asked in Pileggi), had a minimal impact on Adu-Twum’s Charter-protected interests. That said, the question was completely unnecessary because I am certain that no matter what Adu-Twum said or did at that point, the strip search would have been carried out in any event.

[128] Justice Trotter then considered the three-hour delay during which Pileggi was denied contact with counsel and found that this delay had a significant impact on Pileggi’s rights however, unlike what happened in Rover, Pileggi “was not left to languish alone interminably, unaware of what was going on. He was kept apprised of attempts to engage duty counsel on his behalf.” (Pileggi at paragraph [124])

[129] In my view the same cannot be said in this case. Adu-Twum asked to be allowed to obtain the information he needed to contact his counsel of choice. He was denied that opportunity. He diligently then said that if he could not make the call that he needed to make to his mother then he would like to speak to Singh. That is a far cry from what occurred in Pileggi. No one approached Adu-Twum to keep him apprised that any call was made on his behalf, until he was brought to the phone more than two and a half hours after invoking his s. 10(b) rights. No officer kept him apprised that Singh had not called back. No officer approached him to ask if he might want to speak to another lawyer or duty counsel since Singh had not responded.

[130] As in Pileggi the intention of the police was to put Adu-Twum in touch with counsel, though very improperly not his counsel of choice. Unlike Pileggi, no information was given to him about the police efforts that had been made or were being made to implement his invocation. Justice Trotter found that this factor did not favour exclusion in Pileggi. In my view, the contrary obtains in Adu-Twum’s case based upon the facts that distinguish his case from Pileggi. The lack of causal connection of course substantially mitigates these breaches of Adu-Twum’s Charter-protected interests but the onus is merely the civil burden, which is met on these facts and on this factor.

[131] In Pileggi, Justice Trotter dealt with the third tine in his Grant analysis, society’s interest in adjudication on the merits, quite concisely at paragraphs [126] and [127] and his observations are apposite here, too:

• the evidence was reliable;

• the evidence was not compromised by the s. 10(b) infringements; and,

• the discovery of the drugs lies at the heart of the Crown’s case.

[132] The admission of the evidence would enhance the truth-seeking function of this trial. “It’s exclusion, based on constitutional violations that were only vaguely connected to its discovery, would damage the repute of the justice system.” In the result that factor strongly favoured inclusion. (Pileggi at paragraph [126])

Griffith

[133] R. v. Griffith, 2021 ONCA 302 is the last of this series of cases that considered Rover. The s. 10(b) aspects of it bear parsing. While Justice Jamal agreed that Griffith’s s. 10(b) rights were breached by a delay in implementing his invocation, that delay was limited to a one hour and twenty minute period of delay, which occurred after Charter-compliant events that also caused some delay in the implementation of Griffith’s s. (b) rights.

[134] Before reviewing how Justice Jamal assessed that one hour and twenty minute period of Charter-infringing delay, note should be made of the similarities and the differences in the fact patterns of Griffith and the case at bar.

[135] Both Griffith and Adu-Twum had been surveilled extensively and both had been observed to be selling drugs. Each was arrested. Griffith struggled to escape while Adu-Twum pulled over and stopped compliantly. Griffith was armed with a semi-automatic handgun in his waistband and his gun had a chambered round. Adu-Twum was unarmed. Griffith had more than an ounce of cocaine in two forms, while Adu-Twum had well over four ounces in crack and powder. Griffith had $440.00 in cash while Adu-Twum had $985.00.

[136] In considering the seriousness of the Charter­-infringing state conduct, the court considers whether the police engaged in misconduct that the court should dissociate itself from. This is particularly relevant where “the departure from Charter standard was significant or where the police know 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 at paragraph [57], with emphasis added)

[137] While Bourgeois’ error was not systemic per se, he should have known of his obligation to assist Adu-Twum in obtaining the information that he required to contact his counsel of choice. Equally, the NRPS was negligent in not keeping Adu-Twum apprised of the efforts being made to connect him with counsel. As I noted previously, the NRPS had no difficulty or reticence in speaking to Adu-Twum when it promoted their convenience.

[138] Like the trial judge in Griffith, Justice Jamal agreed that the s. 10(b) breach in that case was serious, since the delay was for an hour and twenty minutes on top of a Charter-compliant two hour and twenty-five minute delay to execute warrants, and since that breach was aggravated by Griffith not being informed of the reason for the delay.

[139] All of that being said, Justice Jamal, at paragraphs [62] and [63], noted that the police in Griffith mitigated the total delay by obtaining search warrants before arresting him. Additionally, since the evidence was silent on the point, there was no evidence of a pattern of ignoring constitutional rights during detention or of a deliberate decision to do so. Finally, as noted in Hobeika, too, no other evidence of constitutional breaches while Griffith was detained was adduced, which bore on whether that appellant met his s. 24(2) onus to establish that the admission of the impugned evidence would bring the administration of justice into disrepute.

[140] Once again, here, as in Hobeika, the constitutional error was “a fact-specific oversight, albeit a serious one”, rather than a systemic or intentional breach. (Hobeika at paragraphs [64] and [65])

[141] Despite these mitigating or ameliorating factors, evidence may still be excluded because of the negligent or cavalier attitude exhibited by the police with respect to their obligations. This is clearly stated by Justice Jamal in the following paragraphs:

66 Even if unintentional, what happened here reflected an unacceptably negligent approach to safeguarding the appellant's s. 10(b) rights. The police conduct violated an established constitutional obligation. As this court has noted, "[t]he law around s. 10(b) is clear and long-settled. It is not difficult for the police to understand their obligations and carry them out": R. v. Noel, 2019 ONCA 860, at para. 34. The officers' collective negligence in failing to uphold the appellant's s. 10(b) rights precludes a finding of good faith: see Le, at paras. 143, 147; Pileggi, at para. 119; and Hobeika, at para. 81.

67 A serious breach of an established constitutional right supports exclusion of evidence under s. 24(2), even if the breach is not deliberate or systemic or part of a pattern of police misconduct: Harrison, at paras. 24-25; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 44; and Hobeika, at para. 82. That principle applies here.

[142] Moving to the impact of the breach on Griffith’s Charter-protected interests Justice Jamal considered whether and to what extent the Charter breach actually undermined the interests protected by the right infringed. He did so by identifying the interest protected[^15] and by then evaluating how seriously the Charter infringement impacted those interests. At paragraph [68] he stressed that “… the risk that admission of 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.”

[143] Justice Jamal characterized the s. 10(b) impact as minimal, even though it impacted his Charter-protected interests, because there was no causal connection between the breach and the discovery of any evidence and because the police did not attempt to elicit any further evidence from Griffith during this period of implementational delay. He referenced Hobeika and Pileggi, as being appropriate comparables and characterized the impact on Griffith as being moderate.

[144] In the result he confirmed the admission of the evidence of the gun and drugs, finding the offences to be extremely serious with the final Grant factor favouring admission.

[145] It seems useful to me to detail his balancing of the factors. First, he noted that the final evaluation was a qualitative exercise and quoted Doherty J.A.’s observation from Hobeika that “[t]he nature of the s. 24(2) inquiry means, in some cases, different judges will reasonably arrive at different conclusions with respect to admissibility.” He then explained his conclusion supporting the inclusion of the evidence on the following bases:

• this serious s. 10(b) breach was situation-specific, isolated and not institutional or systemic;

• the breach was not deliberate or intentional;

• the breach only moderately impacted Griffith’s Charter-protected interests;

• the gun and drugs were obtained through a lawful search incident to arrest and the discover of that evidence was not causally related to or compromised by the s. 10(b) breach;

• excluding the evidence, in these circumstances, would only punish the police and would damage rather than vindicate the long-term repute of the criminal justice system.

[146] In short, “[i]t would allow an apparently unintentional situation-specific police-slip that had only a moderate impact on Charter-protected interests to lead to the acquittal of an armed and dangerous drug trafficker in a city already plagued by gun violence.” (Griffith at paragraph [79])

S. 24(2) – The Grant Analysis

[147] Despite the lack of any causal connection between the discovery of the drugs in Adu-Twum’s car and the s. 10(b) breaches committed, there is a sufficient temporal and contextual connection between these breaches and that discovery to meet the “obtained in a manner” requirement to proceed to assess whether the drugs ought to be excluded.

[148] In undertaking the analysis mandated by Grant I have charged myself on all of the following principles:

• Each case must be assessed individually.

• There is no automatic rule of exclusion of evidence obtained in a manner that infringed a constitutional right.

• The onus is on the accused to establish having regard to all the circumstances that the admission of the evidence in the proceeding would bring the administration of justice into disrepute.

• The exclusionary rule in s. 24(2) operates on the assumption that the routine admission of constitutionally tainted evidence must have a long-term negative effect on the repute of the administration of criminal justice.

• The systemic nature of a violation plays a central role in assessing its long-term impact on the proper administration of justice.

• The law around s. 10(b) is clear and long-settled. It is not difficult for the police to understand their obligations and carry them out.

• Negligence in failing to uphold a detainee’s s. 10(b) rights precludes a finding of good faith.

• A serious breach of a long-established and well-understood constitutional right can lead to exclusion of evidence, even where the breach is not deliberate or systemic in nature or part of a pattern of police misconduct.

• In considering the seriousness of the Charter­-infringing state conduct, the court considers whether the police engaged in misconduct that the court should dissociate itself from.

• This concern about disassociation is particularly relevant where the departure from Charter standards was significant or where the police know or should have known that their conduct breached the Charter.

• Where the breach was merely of a technical nature or reflected an understandable mistake dissociation is much less of a concern.

The Seriousness of the Charter-infringing State Conduct

[149] Adu-Twum invoked his rights to counsel immediately upon being advised of them. He told both Tennant and Bourgeois that he did not know the name of the lawyer that he wanted to speak with. He told Bourgeois that he wanted to call his mother to get the name of that lawyer. Bourgeois refused to allow him to make that call and refused to have the call made for him.

[150] The propriety of seeking information from a third party to implement a detainee’s rights to counsel is clear and long-settled. It is not difficult for the police to understand their obligations under s. 10 of the Charter and, equally, it is not difficult for the police to carry out those obligations. Bourgeois admitted that he was ignorant of his obligations in this regard. He was the sergeant in charge of the booking desk and prior to that assignment he had been a police officer for roughly two decades. He ought to have known that he was obliged to assist Adu-Twum and conceded as much during his evidence. Despite being assigned to running the booking desk, he testified that he did not receive any training or education about his obligations in carrying out that assignment. The evidence does not support a finding of a systemic training issue per se, but it is troubling nonetheless that he did not receive any formal training in how to carry out these responsibilities.

[151] It has long been settled that s. 10(b) requires the police to afford detainees not only a reasonable opportunity to contact counsel of their choice but as well to facilitate that contact. (See R. v. Willier, 2010 SCC 37, at paragraph [41].)

[152] In my view this implementational breach is the most significant s. 10(b) Charter violation that occurred. This violation is such a gross breach of so basic a state obligation that it militates very strongly towards exclusion of the drugs despite the lack of any causal connection between the discovery of the evidence and this breach.

[153] In addition to the foregoing breach there was a second implementational breach in delaying any call to counsel for the 30-minute period that I have identified earlier in these reasons. Considered in isolation, especially when compared to the very lengthy implementational delays in the many cases discussed above, that 30-minute delay is of very modest significance and tilts barely, if at all, in favour of exclusion. However, it gains significance when seen as an aggravation of the failure of the NRPS to permit and facilitate contact with Adu-Twum’s counsel of choice. In addition, this intentional period of delay is situated within a much longer period during which Adu-Twum’s s. 10(b) rights were breached because he was ignored and kept uninformed of any efforts being made to implement his invocation.

[154] The third s. 10(b) breach is the failure of Bourgeois to hold off questioning Adu-Twum until his rights to counsel had been implemented. While this breach, like the one in Pileggi was fleeting or inconsequential when considered in isolation, there are a number of reasons why this ostensibly modest breach gains in significance.

[155] First, this breach occurred within minutes of Bourgeois having just breached Adu-Twum’s right to attempt to contact his counsel of choice. As noted previously, Bourgeois was woefully ignorant of the extent of his obligations to assist in the implementation of Adu-Twum’s s. 10(b) invocation.

[156] Second, it was entirely inappropriate for Bourgeois to have asked the question at that time. Unlike in Pileggi, Bourgeois asked the question at a time when he knew that Adu-Twum’s rights to counsel had not been implemented.

[157] Third, it seems inconceivable to me that no matter what Adu-Twum responded to Bourgeois’ question the strip search was going to occur in any event. That is to say that the question was a completely unnecessary breach of the obligation to hold off. [^16]

[158] Fourth, this seemingly innocuous inquiry was one in a series of s. 10(b) breaches committed by three separate officers of the NRPS in the same investigation. While not systemic in the sense of being a formal policy of the NRPS to ignore a detainee’s Charter rights, the two sergeants, Bell and Bourgeois, who were involved in the investigation, apprehension and processing of Adu-Twum seem to have been blithely ignorant of or cavalier about honouring his s. 10(b) Charter rights. Likewise, P.C. Tennant’s conduct was equally blasé respecting Adu-Twum’s s. 10(b) rights.

[159] In the result, this ostensibly minor breach takes on added significance and seriousness and hence weighs in favour of exclusion. However, that weight is tempered or counter-balanced by the fact that no formal complaint about this breach was raised in Adu-Twum’s application or factum so that the Crown was unable to respond to it in writing or be alerted to lead evidence on the issue.

[160] The fourth s. 10(b) breach was the failure of the NRPS to keep Adu-Twum informed about what efforts were being made to implement his invocation. On arrest, at about 10:30 a.m. Adu-Twum immediately invoked his rights to retain and instruct counsel. He was denied the opportunity to attempt to contact his counsel of choice shortly after 11:09 a.m. when he was booked into custody. Tennant made a call to Singh at about 11:48 a.m. and then left the building at about 12:09 p.m. Adu-Twum was brought to the private telephone room to speak to Singh or someone from his office at 1:09 p.m.

[161] On the evidence before me, at no time did any NRPS officer speak to Adu-Twum to let him know if a call had been made to Singh, and if so what the upshot of that call had been. No officer kept Adu-Twum informed about the lack of any response from Singh. No officer asked Adu-Twum if, given Singh’s lack of response, whether Adu-Twum wished to speak to a different lawyer or whether he might wish to speak to duty counsel.

[162] As noted by Justice Doherty in Rover:

45 The right to counsel is a lifeline for detained persons. Through that lifeline, 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.

46 In this case, instead of providing the appellant with the lifeline to counsel when he requested it, the police put him in the cells. The appellant was held for several hours without any explanation for the police refusal of access to counsel, and without any indication of when he might be allowed to speak to someone. His right to security of the person was clearly compromised. The significant psychological pressure brought to bear on the appellant by holding him without explanation and access to counsel for hours must be considered in evaluating the harm done to his Charter-protected interests.

[163] As I have noted, this breach was not raised by Adu-Twum in his Charter application or factum. In the result the Crown was precluded from responding to this complaint in its written material and not being alerted to it was unable to call evidence in response to it. As a result of that the seriousness of this breach is diminished. Moreover, the time Adu-Twum spent in this limbo state was approximately two and a half hours, (from 10:30 a.m. to 1:09 p.m.), which is clearly less than the other cases referenced in these reasons. Nonetheless, it was a s. 10 breach that militates towards exclusion, particularly in light of the other s. 10(b) Charter breaches.

[164] This is especially so because of the major breach of Adu-Twum’s right to counsel of choice. Consider this. He named Singh when his right to attempt to contact his counsel of choice was thwarted. October 1, 2019 was a business day so that the criminal courts were open. If Adu-Twum had been told a call was made to Singh and there was no answer or if he had been told a call was made but Singh was unavailable until the court luncheon recess at 1:00 p.m. and if he had been asked if he wanted to call a different counsel, (as the Court of Appeal had agreed should have been asked[^17]), then that would have ameliorated this failure to facilitate and inform breach considerably. Still, in conjunction with the other s. 10(b) breaches, this failure to facilitate and inform breach supports exclusion.

[165] It appears that the NRPS found it convenient to hold Adu-Twum incommunicado, so to speak, without any thought or effort made to keep him informed of what steps, efforts or results were achieved on his behalf respecting his s. 10(b) invocation.

[166] This lack of communication with Adu-Twum about the implementational steps being taken on his behalf can be contrasted with the speed with which the police contacted him when Bell could not raise the windows of Adu-Twum’s vehicle. The NRPS had no difficulty speaking to Adu-Twum when it promoted their convenience.[^18] Moreover, while the length of “implementational delay” in Adu-Twum’s case is slight in comparison to other cases referenced, this slight delay is augmented by: (i) the lack of any justification for it; (ii) the lack of any information being provided to him by the NRPS; and, (iii) the lack of documentation of contact efforts made by Tennant. Added to those facts is the profoundly serious breach of his right to counsel of choice, making the case at bar a substantially more serious breach than the breaches in Pileggi, in my view. The first Grant factor, the seriousness of the breach, very strongly favours exclusion of the drugs found in Adu-Twum’s car despite the lack of causal connection between the discovery of those drugs and these s. 10(b) breaches.

The Impact on the Accused’s Charter-protected Interests

[167] The purpose of s. 10 is to protect a detainee’s interest in being able to make an informed choice about whether and to what extent to cooperate with the state; but it is more than that. Justice Doherty described it as a “lifeline”. As he wrote, “through that lifeline, 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.”

[168] Adu-Twum had the right to speak to his counsel of choice to obtain the information and reassurance described by Justice Doherty. Given the intentional decision made by Bourgeois to deny him that right this breach had a substantial impact on his Charter-protected s. 10 interests and that Charter breach weighs strongly in support of exclusion.

[169] Bourgeois’ decision was not a good-faith error. Further, his offer to Google information for Adu-Twum did not mitigate his error. While I accept that Bourgeois’ offer to use the internet to help locate Adu-Twum’s counsel of choice was real, it is obvious that he did not listen to what Adu-Twum had to say.

[170] On its face, this denial of the right to contact counsel of choice supports exclusion strongly. But the onus is on the applicant and he did not testify. Neither did he call his mother to say that she had the name of the lawyer that he wanted to retain. Moreover, that lawyer did not testify that he or she was available to be spoken with. That absence of evidence substantially diminishes the impact of this breach on Adu-Twum’s Charter-protected interests.

[171] That said, I do not accept Mr. Anger’s submission that the fact that Adu-Twum retained a counsel from Singh’s office to defend him at his trial has any bearing on this second Grant factor. The law is clear that what information and support a detainee needs immediately upon arrest or detention may have no relationship to what that same detainee might need for the purposes of trial. There are many reasons why retaining a local counsel that practices in the jurisdiction where the trial will be held may be preferable to a detainee.

[172] Despite the lack of evidence called by Adu-Twum to demonstrate the impact that this breach of his right to contact counsel of his choice had on his Charter-protected interests, this factor still tilts towards exclusion but not as strongly as it might have done had the evidence demonstrated that this counsel was identified and available to be consulted.

[173] There is more to this second Grant factor. As I noted earlier, no one kept Adu-Twum apprised of any efforts made to contact Singh. Adu-Twum was kept in the dark about when any call was made on his behalf, and despite having made a call to Singh for Adu-Twum, Tennant never told Adu-Twum of having done so. If the NRPS had kept Adu-Twum informed of what call or calls were made on his behalf and what information those calls developed, Adu-Twum may well have named a third or even fourth choice or duty counsel and been able to consult counsel long before 1:09 p.m.

[174] In addition, it ought to be recalled that Adu-Twum was subjected to a lawful strip search, an inherently demeaning investigative step. He had been questioned and asked to divulge incriminating information before speaking with counsel. He had been kept isolated for approximately two and a half hours, (other than when the NRPS found it convenient to speak to him). All of these matters add up to a substantial psychological toll that should not be discounted.

[175] In my view, but for the significant fact that these s. 10(b) breaches were not causally related to finding the drugs Adu-Twum had hidden in his car, this factor would strongly weigh in favour of exclusion.

[176] This factor exerts substantially less weight because it was not causally related to the finding of the drugs. Additionally, it exerts less weight because of the lack of evidence about whether Adu-Twum’s counsel of choice was available to be consulted. Finally, because the failure to hold off breach and the failure to keep informed breach were disclosed by the evidence and not the subject of formal complaint, those breaches also exert less support for exclusion than might otherwise have been the case.

[177] Despite all of those ameliorating points, this factor still supports exclusion of the drugs, if only marginally.

Society’s Interest in an Adjudication of the Case on its Merits

[178] The drugs seized are reliable evidence of guilt. The evidence was not compromised by the multiple s. 10(b) breaches. The drugs seized are crucial to the case for the Crown. The drugs were obtained through a lawful search incident to arrest and the discovery of that evidence was not causally related to or compromised by the s. 10(b) breaches. The exclusion of that evidence effectively eviscerates the prosecution and possession for the purposes of trafficking in cocaine is a very serious offence. Clearly, this third Grant factor strongly supports inclusion of the evidence.

Balancing the Factors

[179] I have attempted to expressly weigh and balance each of these three Grant factors in light of the circumstances as a whole. Despite the language of balancing and weighing this is a qualitative and not merely a quantitative exercise.

[180] Each case is unique so that each determination is similarly unique. Unlike the accused in Griffith, Adu-Twum was completely unarmed and cooperative. While he had more money on his person and more drugs in his possession than Griffith, he appeared to be living out of his car as a street-level dealer. None of the people he met with were identified as being dangerous or violent individuals.

[181] There were multiple s. 10(b) breaches and Adu-Twum was not an armed and dangerous drug trafficker.

[182] Our Court of Appeal has noted troublesome or cavalier attitudes exhibited by the police toward observing a detainee’s Charter rights, particularly their right to counsel in a number of cases. In my view, that troublesome attitude was exhibited by the NRPS in this case. An untrained booking sergeant ignorantly and flagrantly breached Adu-Twum’s right to counsel of choice. An arresting officer was equally negligent in documenting his implementation of an already breached right to counsel. In addition, there was a failure to hold off and a failure to keep informed. In addition, an investigator made a request to the booking sergeant to delay Adu-Twum’s contact with counsel without any lawful basis for doing so.

[183] To those who might discount this matter as non-systemic, situation specific and non-institutional, I, respectfully, view this matter in a more serious light.

[184] Moreover, there is a modest aspect of systemic error in this case if only to this extent. I infer that rather than test or train an experienced sergeant to carry out the duties of a booking sergeant, the NRPS simply assumed a level of knowledge based upon decades of policing experience. In any event, three different officers acted erroneously and compromised Adu-Twum’s s. 10(b) rights during their dealings with him on the day of his arrest.

[185] Regardless of whether “systemic” is a fit characterization, it is undoubtedly the case that the main s. 10(b) breach was an intentional one based upon a shocking lack of knowledge by Bourgeois. In addition, Adu-Twum was held from 10:30 a.m. until 1:09 p.m. without being given any explanation for the delay in implementing his invocation and without being told when he might be allowed to speak to counsel. Equally, Bell was quite cavalier about delaying Adu-Twum’s invocation on baseless grounds. Fortunately, that error caused limited harm; but it is concerning that Bell, too, would be so blasé about intentionally delaying his detainee’s contact with counsel.

[186] Trial judges have been cautioned by the Court of Appeal that they ought not to use the power of exclusion to punish the police.

[187] In my view, characterizing the exclusion of these drugs as a punishment of the police is viewing that result on a short-term or nearsighted basis. I assess the state misconduct evinced as being very serious.

[188] Section 24(2) provides that if evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter, then the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[189] The long-term repute of the administration of justice will be enhanced by requiring police services and in this case the NRPs to understand and honour the Charter rights of those with whom they come into contact. Despite the impact of excluding the evidence on society’s interest in an adjudication of the case on its merits so that a guilty Adu-Twum goes free, I am of the view that this is a case in which the long-term repute of the administration of justice requires the sacrifice of the short-term benefit of an adjudication on the merits of this case.

[190] For the reasons that I have tried to explain, the drugs shall be excluded.

Dated this 15th day of November 2021 at St. Catharines, Ontario

J.S. Nadel, (OCJ)

[^1]: On one occasion the surveillance team followed Adu-Twum to Toronto thinking that he might be seeking to restock but it turned out that he went there to apply for a labouring job.

[^2]: A later and more careful “double count” revealed the amount to be $985.00.

[^3]: R. v. Debot, 1989 13 (SCC), [1989] S.C.J. No. 118

[^4]: Five $50’s; 32 $20’s; six $10’s and seven $5’s.

[^5]: The trial was conducted by Ms. Polgar who argued the s. 8 issue. The matter was adjourned for submissions on the s. 10(b) issues. By that time Ms. Polgar was no longer available to continue appearing on this trial so that Mr. Anger appeared for the Federal Crown. While initially resisting any finding of a breach of Adu-Twum’s s. 10(b) rights to counsel of choice, after several hearings of the booking video, he accepted that Adu-Twum only named Mr. Singh as his choice of counsel when he was not allowed to contact his mother to obtain the name of the counsel that he wanted.

[^6]: In R. v. Wilson, 2016 ONCJ 25 Justice Duncan considered this passage and held that it was a suggestion from and not a direction by the Court of Appeal since it does not contain mandatory language. He went on, at paragraph [34], to explain that “mandating any particular step would be inconsistent with the Court’s flexible approach that turns on the circumstances of the particular case. If it is merely a suggestion, failure to adhere to it does not constitute a Charter violation, provided that the other steps taken by the police to facilitate contact with counsel were reasonable …” (emphasis added)

[^7]: See paragraphs [91] to [94] of Pileggi.

[^8]: 91 In R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 24, the Supreme Court held that the right to consult counsel of choice is not absolute at the initial investigative stage. If counsel of choice "cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer": Willier, at para. 35. A measure of diligence is expected of the person in detention in exercising their right to consult with counsel: R. v. Ross, 1989 134 (SCC), [1989] 1 S.C.R. 3, at pp. 10-11; Willier, at para. 35.

[^9]: While it may not properly be a matter of judicial notice, having been assigned to St. Catharines from June of 2006 to January of 2016, I am aware that the usual luncheon recess for the OCJ in that city is from 1:00 p.m. to 2:00 p.m. Equally, I know that Singh is one of the busiest criminal defence counsel practicing in that court.

[^10]: Rover at paragraph [29]: “The rationale behind this practice appears to be that there is always a possibility that allowing an arrested person to speak to their lawyer could put the officers executing the warrant at risk or jeopardize the preservation of evidence.”

[^11]: 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.

[^12]: See Grant at paragraph [122].

[^13]: It appears that, having found the drugs, Bell did not want to bother impounding Adu-Twum’s vehicle. Rather, he simply wanted to park it and lock it and leave it for Adu-Twum to fetch in due course.

[^14]: 122 Discoverability retains a useful role, however, in assessing the actual impact of the breach on the protected interests of the accused. It allows the court to assess the strength of the causal connection between the Charter-infringing self-incrimination and the resultant evidence. The more likely it is that the evidence would have been obtained even without the statement, the lesser the impact of the breach on the accused's underlying interest against self-incrimination. The converse, of course, is also true. On the other hand, in cases where it cannot be determined with any confidence whether evidence would have been discovered in absence of the statement, discoverability will have no impact on the s. 24(2) inquiry.

[^15]: 69 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.

[^16]: For example, if Adu-Twum had put his hand down the front of his pants and pulled out a rock of crack from the front of his groin and said something like, “this is all I have on me” the strip search would undoubtedly have been carried out in any event.

[^17]: The Court of Appeal in R. v Traicheff, [2010] O.J. No. 5355 agreed with the following comment made by the trial judge in that case:

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

[^18]: It appears that, having found the drugs, Bell did not want to bother impounding Adu-Twum’s vehicle. Rather, he simply wanted to park it and lock it and leave it for Adu-Twum to fetch in due course.