ONTARIO COURT OF JUSTICE

DATE: April 11, 2022

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SHAMAR BROWN & MARISA LINSCOTT-WILTSHIRE

Ruling on s. 10(b) Application

Before Justice K.A. Fillier

Heard on Sept 20,21,22,23,24, 2021 & Feb 11,14,15, 2022

Reasons for Judgment released on April 11, 2022

Counsel:

Mr. John Pollard ................................................................................ counsel for the Crown Mr. Moshe-Steinberg..................... counsel for the accused/applicant Shamar Brown Mr. Erec Rolfe............... counsel for the accused/applicant Marisa Linscott-Wiltshire

Fillier J.:

Introduction

[1] Shamar Brown and Marisa Linscott-Wiltshire face charges stemming from the execution of a search warrant on June 12, 2020, at 401-84 Aspen Springs Drive. It is alleged that when police encountered Mr. Brown in the lobby of the building where the warrant was to be executed, he had a loaded firearm on his person. It is further alleged that there was a significant amount of cocaine and other illegal substances located in the trunk of Ms. Linscott-Wiltshire’s vehicle when it was searched pursuant to a warrant.

[2] The Applicants seek an Order pursuant to section 24(2) of the Charter excluding the firearm and drugs from evidence for breaches of their rights under section 10(b).

[3] The Crown concedes that there was a breach of s.10(b) but does not agree on the nature and seriousness of the breaches alleged by the Applicants and argues for admission of the evidence under s. 24(2).

Position of the Applicants

[4] On behalf of the Applicants, counsel argue that there was a failure on the part of police to fulfill their duties under the implementational component of 10(b) for more than 3 hours. They argue that the Toronto Police Service (“TPS”) officers from the Guns and Gangs Task Force took a cavalier approach towards the Applicants’ right to counsel from the outset, and that despite handing the Applicants over the Durham Regional Police (“DRP”) at 11:00am, always planned to make the calls to counsel themselves whenever they got to the local DRP station. Counsel submit that both the TPS and the DRPS displayed a complete lack of regard for the Applicants’ Charter rights and that a systemic issue has been established that should inexorably lead to the exclusion of the evidence under 24(2).

Respondent

[5] On behalf of the Crown, Mr. Pollard argues that the breach of the Applicants’ rights commenced at about noon once they were paraded before a DRPS Booking Sgt. at 17 Division, and each indicated a wish to speak to counsel. From there, it is not disputed that both Applicants were placed in holding cells with no effort made to contact counsel on their behalf. It was only when TPS officers arrived at 17 Division and followed up that they learned no calls were made and rectified the situation (shortly after 1:00pm). In respect of Mr. Brown, Mr. Pollard also concedes a further 10(b) breach occurred since Mr. Brown provided the name of counsel of choice but was initially put in touch with Duty Counsel.

[6] Overall, however, Crown counsel submits that the TPS officers were mindful of the Applicants’ 10(b) rights and that the breach occurred due to a misunderstanding between the two operating police forces. Mr. Pollard argues that no systemic issue has been identified, and that a balancing of the 24(2) factors calls for the admission of the items into evidence.

Issues to be Determined

[7] The following issues need to be determined in resolving this Application:

(1) What is the nature and scope of the section 10(b) violation? (2) Should a remedy be granted under section 24(2)?

Issue #1: The Nature and Scope of the 10(b) Violation

[8] To determine the precise nature and extent of the Charter breaches that occurred in this case it is necessary to review the evidence and make a number of factual findings. The events relating to this case can be broken down into five separate time frames. What follows is my review of the relevant evidence and factual findings in respect of (1) The Takedown, (2) Execution of the Warrant, (3) The Call for Transport, (4) Transport (5) Arrival at 17 Division. I also provide my analysis on the nature and scope of the breach.

1) The Takedown

[9] On June 12, 2020, a team of TPS Officers from the Guns and Gangs Task Force were in possession of a search warrant for Unit 401 - 84 Aspen Springs Drive in Bowmanville (as well as Ms. Linscott-Wiltshire’s vehicle). Shamar Brown was the named target of the search warrant and he was suspected to be in possession of a firearm.

[10] At approximately 6am part of the TPS team gathered at an address where they observed Mr. Brown leaving his halfway house and getting picked up by Ms. Linscott-Wiltshire. The other half of the team awaited the arrival of the Applicants at the Aspen Springs address. The goal was to take Shamar Brown into custody when they saw him before he got into the unit to minimize risk to all parties.

[11] While the plan was to arrest Shamar Brown for possession of a firearm, Ms. Linscott-Wiltshire was only to be detained pending execution of the search warrant on both the residence and her vehicle (subject to finding evidence against her).

[12] Sometime prior to 9am officers Racette, DaSilva, Danson and Black took positions inside the lobby of 84 Aspen Springs Drive. At 9:23am, Ms. Linscott-Wilshire and Mr. Brown entered. As the Officers announced themselves Mr. Brown attempted to flee while reaching for his waistband. Officers Danson, Black and DaSilva engaged with Mr. Brown, ultimately disarming him, and taking him to the ground. At the same time, Officer Racette took control of Ms. Linscott-Wiltshire. A few seconds later, Officer Ebrahimi entered the lobby of the building and took over custody of Ms. Linscott-Wilshire. It is agreed that Officer Ebrahimi escorted Ms. Linscott-Wiltshire outside almost immediately. According to Officer Ebrahimi, once outside he advised Ms. Linscott-Wiltshire (at 9:24am) of her rights to counsel and caution, albeit in an abbreviated manner which he referred to as “laymen’s terms”. Officer Ebrahimi testified that he it would have been impractical to read her Rights to Counsel and Caution from his memo book given that the situation was still unfolding with Mr. Brown inside, that is was impossible to provide her with privacy to make a call at that moment, and that there was an urgency in executing the search warrants given the potential for the destruction of evidence by anyone potentially in the unit who learned of the takedown. Officer Ebrahimi was clear, however, that Ms. Linscott-Wilshire indicated that she did wish to speak to a lawyer but that she did not have one. According to Ebrahimi, he told her “no problem, I’ll give you one when the opportunity arises.”

[13] Ms. Linscott-Wiltshire testified on the 10(b) Application. According to her, Officer Ebrahimi did not provide her with even an abbreviated version of her 10(b) rights outside. Ms. Linscott-Wiltshire maintained that the first time she was ever given her rights to counsel was by Constable Beck of the DRPS who took over custody of her shortly after 11:00am to transport her to the station. She also testified that the only time she ever communicated to any police officer that she did not have a lawyer was when she was in Constable Beck’s cruiser with the windows up.

[14] I do not accept the evidence of Ms. Linscott-Wiltshire on the issue when she received her rights to counsel. In almost every respect her evidence was consistent with the police as to how matters unfolded except on the single issue of when she was given her rights. Under cross-examination she admitted that it would be a serious issue if the Court were to find that the police completely failed to provide rights to counsel at all. She also conceded that on the 10(b) Application the exclusion of evidence is contingent on adverse findings against the police. Furthermore, Ms. Linscott-Wiltshire readily admitted that she loves Mr. Brown and intends on having a future with him. She clearly realizes that in the absence of a Charter remedy, Mr. Brown faces an overwhelming case given the gun was on his person. To be clear, I found overall that Ms. Linscott-Wiltshire was a fairly measured and reliable witness. In preferring the police evidence over hers on the rights to counsel issue, I am not concluding that she intentionally set out to mislead the court. It may very well be that she was indeed in shock given the circumstances that unfolded, or she simply does not remember.

[15] I do accept that as of 9:24am Officer Ebrahimi gave Ms. Linscott-Wiltshire her rights to counsel and caution. As of that time the TPS were aware that Ms. Linscott-Wiltshire wished to speak to a lawyer but did not have one. The only way Officer Ebrahimi could have known this information is if he had in fact provided Ms. Linscott-Wiltshire with her rights.

[16] As for Mr. Brown, there was no dispute at trial that at 9:24am, once the gun was secured and he was in handcuffs, Officer Danson placed him under arrest and provided rights to counsel and caution. At that time Mr. Brown indicated he wished to speak to counsel at that time, but he did not indicate a particular lawyer.

2) Execution of the Warrant

[17] Almost immediately after taking the Applicants into custody in the lobby, Officers Stolf, Racette, Black and DaSilva attended at Unit 401 to execute the warrant. Upon entry, and to their surprise, Mr. Zachary Wright, who was at that time wanted for an attempted murder in Toronto, was on the couch. He was quickly placed under arrest and secured.

[18] Once the unit was cleared, Officers Dansun and Ebrahimi escorted the Applicants upstairs to the unit. All three detainees (Wright, Brown and Linscott-Wiltshire) were sat together on the couch. Around the same time, Officers Stolf and DaSilva went to the parking lot to execute the warrant on Ms. Linscott-Wiltshire’s Honda. By 9:47 am a significant amount of various controlled substances had been located in the trunk of Ms. Linscott-Wiltshire’s car.

[19] At 10:08am Detective Stolf called Officer Racette to advise of the findings in the vehicle. Ms. Linscott-Wilshire was then arrested by Officer Racette and read the entire fulsome version of her rights to counsel and caution to which, again, Ms. Linscott-Wiltshire indicated that she wanted to speak to a lawyer. She was then given a glass of water while the police continued their search of the unit. Similarly, Officer Danson re-arrested Mr. Brown for the controlled substances and once again re-iterated the rights to counsel he had already been given. Mr. Brown made clear again that he wished to speak to counsel.

3) The Call For Transport

[20] Prior to the takedown, in the early morning hours of June 12, 2020, Officer DaSilva reached out to of the DRPS Guns and Gangs unit to advise of the pending warrant execution and seek assistance with processing a case if in fact suspects ended up being arrested during the operation in Bowmanville. During his evidence, Officer DaSilva indicated that if DRPS had been unwilling to process the case in their jurisdiction, the defendants would have been brought to Toronto for processing. He said this raised obvious delay concerns given the distance from Bowmanville to Toronto. He also noted jurisdictional concerns.

[21] In the end, DRPS agreed to assist with the case at 17 Division in Oshawa and two officers DRPS officer were assigned to assist with the processing of any evidence and preparation of the matter for court. There was also an expectation that if arrests were made, uniform DRPS officers would be required for prisoner transport given that all the TPS officers were in undercover vehicles.

[22] At 10:47am at the instruction of Detective Stolf, Officer DaSilva contacted the DRPS dispatch for officers to attend and transport the Applicants to 17 Division in Oshawa. By 11:00am two uniform DRPS Officers arrived in Bowmanville to transport the Applicants to 17 Division in Oshawa.

[23] Counsel for the Applicants argue that the approximate 1-hour period between drugs being found in the Honda (9:47 am) and the call being to DRPS for transport (10:47am) marks the start of the breach of the Applicants’ right to counsel and serves to illustrate the careless attitude of the TPS vis-à-vis the implementational component of 10(b).

[24] Throughout the trial each of the TPS officers were vigorously cross-examined on why the call for transport wasn’t made sooner. Applicants’ counsel embarked on almost a minute-by-minute analysis to demonstrate that the call for transport could have and should have been made sooner and that there was no excuse for TPS not facilitating calls to counsel while the Applicants were in the condo prior to being transported.

[25] While I do not intend to re-hash the evidence of every single officer, several consistent themes emerged from their testimony. Each TPS officer testified that they were mindful of the Applicants’ wanting to speak to counsel, that they believed there was no safe and private way for access to counsel to be facilitated on scene, and that they did not believe there was going to be any real delay in the Applicants speaking to a lawyer. Most, if not all of the TPS witnesses, contrasted the Applicants’ situation with that of Zachary Wright who was clearly to going to be arrived at a police station in Toronto for many hours – as a result he was put in touch with counsel on scene (albeit on speaker phone) to at least touch base with his lawyer and inform her of his arrest and that he would be calling later to speak in private. Furthermore, the TPS officers were all experienced in executing search warrants and noted the importance of facilitating access to counsel, particularly since in recent years they had been “losing cases” for failing to do so.

[26] In my view, the TPS officers acted professionally and showed due regard for the Applicants’ s. 10(b) rights throughout the entirety of the investigation. Detective Stolf, who was the commanding officer on the date in question, was questioned at length about his understanding when access to counsel needs to be furnished. In saying that it needed to be done “as soon as possible” he explained as follows:

Again, every situation is different. I understand that it’s to be provided as soon as, as soon as we can, we put them in contact with the lawyer. Again, but that, that contact with the lawyer is a call that should be made in private. It should be made in a, in an environment that’s safe for the person, that’s safe for the officers, that’s controlled so that that person can comfortably speak to counsel. And that again depends on the situation. (Transcript of Proceedings, September 21, pg 9, lines 23 – 30)

[27] Detective Stolf was able to clearly articulate the reasons for his decision making on June 12, 2020. I accept that at no point did he, or any member of the TPS team decide to suspend the implementation of the rights to counsel. Ultimately, Detective Stolf agreed that in hindsight the call for transport to DRPS could have been made sooner. This candid admission does not, however, transform what I find to have been professional and appropriate conduct on the part of the police into the breach of the Applicants’ s. 10(b) rights. There were no breaches of s. 10(b) before the Applicants arrived at 17 Division in Oshawa.

4) Transport

[28] DRPS Constables Paquette and Beck arrived at the Aspen Springs address shortly after 11:00am on the 12th of June. They were detailed to transport the Applicants to 17 Division in Oshawa from the Bowmanville location. Constable Paquette took over custody of Mr. Brown and received information that rights to counsel had already been read. Constable Paquette informed Mr. Brown that he was continuing the arrest for possession of a firearm and possession of cocaine for the purpose of trafficking and provided Mr. Brown with rights to counsel and caution yet again. Constable Paquette noted that in response Mr. Brown advised that he wished to speak to counsel Dirk Derstine. Constable Paquette testified that he assumed that the Toronto officers would make counsel calls. He had no recollection of whether a TPS officer had asked him to make the calls or not. TPS Officer Danson handed over custody of Mr. Brown and he similarly could not recall whether he had any discussion with Constable Paquette regarding Mr. Brown speaking with counsel.

[29] Constable Beck took custody of Ms. Linscott-Wiltshire from Officer Ebrahimi and continued the arrest for possession for the purpose of trafficking and provided her with rights to counsel. Constable Beck noted that Ms. Linscott-Wiltshire indicated a desire to speak with Duty counsel. Constable Beck testified that no one had asked her to contact counsel for Ms. Linscott-Wiltshire that she could recall.

[30] At trial Officer Ebrahimi testified that he advised Constable Beck at the time of transfer of custody that she was to get a call to duty counsel back at the station. This testimony was characterized by defence counsel as shocking revelation since it was not something contained in Ebrahimi’s notebook. Defence counsel argue that Officer Ebrahimi is incredible and fabricated his testimony in respect of his conversation with Constable Beck. Again, counsel urge me to find that it was always “the plan” for the TPS team to make lawyer calls when they got around to it, regardless of how long it took. They submit that this position is supported by the notation in Officer Racette’s notebook from earlier in the day at the pre-warrant briefing which reads: “53 [Ebrahimi] to make lawyer calls.”

[31] As will be made clear in full later in this judgment, it is really of no relevance whether in fact TPS Officers explicitly told DRPS to make the lawyer calls or not. Once PC Beck and PC Paquette provided the Applicants with rights to counsel and received affirmative responses, it was incumbent on DRPS to facilitate access to counsel in the absence of being expressly told not to do so. However, to the extent it is an issue that requires resolution, I accept the evidence of Officer Ebrahimi over that of Officer Beck. During her testimony Constable Beck appeared visibly annoyed at having to attend court and answer any questions associated with this matter. She clearly felt her role was limited exclusively to transportation of the Applicants to assist the TPS. I accept that Officer Ebrahimi told Constable Beck that a call to Duty Counsel needed to be made for Ms. Linscott-Wiltshire.

5) Arrival at 17 Division

[32] The Applicants arrived at 17 Division in Oshawa at approximately 11:37 am. From the point they enter the booking area, the entirety of their interaction with police is captured on video. Exhibits 2a and 2b are the respective booking videos of Ms. Linscott-Wiltshire and Mr. Shamar Brown.

[33] At 11:45am Shamar Brown is paraded before Sergeant Julia Davidson in the presence of Constable Paquette. The Sergeant confirms with Mr. Brown that he has been advised of the reason for his arrest and that he has the right to call a lawyer. She then goes on the inquire of him whether he wishes to call a lawyer to which Mr. Brown indicates he does, and that he would like to speak with Dirk Derstine or Jennifer Penman. Sgt. Davidson asks if he know the phone numbers and if they are Toronto lawyers and advises Mr. Brown that she is uncertain whether he is being held for bail or not. Sgt. Davidson asks Mr. Brown about well being and medical history. The video reveals that he is subject to pat-down search before he is escorted off screen to a holding cell at 11:51 am.

[34] At 11:55am Ms. Linscott-Wilshire is paraded before the Sgt. in the same fashion. Constable Beck is present when Sgt. Davidson confirms that Ms. Linscott-Wilshire has been advised of her reason for her arrest and her right to speak to a lawyer. The Sgt. follows up and asks Ms. Linscott-Wilshire if she wants to speak to a lawyer to which she responds “yes” and confirms she would like to speak to Duty Counsel. The Sgt. also explains that if Ms. Linscott-Wilshire is having a bail hearing she will have another discussion with her about calling sureties. At 12:05 Ms. Linscott-Wilshire is escorted off the screen with Sgt. Davidson saying “let’s get you in a cell then and I believe officers will want to talk to you shortly.”

[35] Counsel for the Applicants urge me to conclude that Sgt. Davidson’s comment about officers coming to speak to Ms. Linscott-Wilshire is positive evidence that indeed TPS always intended to delay the calls to counsel until they arrived back at the station. Much like the testimony of Constables Beck and Paquette, where Sgt. Davidson’s evidence differs from that of the TPS Officers, I prefer the latter. But for the playing of the video, Sgt. Davidson had no independent recollection of June 12, 2020, nor did she have any notes regarding the case. She was asked whether in the year she was a Booking Sgt. whether she had ever made the call to counsel, she responded as follows:

Not typically. It, it can happen but I typically – I would leave that to the, the arresting officer or the officer in charge. Sometimes if there’s, like, a warrant going on or something then they may ask that – the investigating officer may ask that that phone call be delayed so that, you know, the information stays sealed that there’s a warrant being executed at the time. And then they would make the call as soon as they can. Just for the safety of the officers executing the search warrant. But typically, I would not make that phone call, no. I would put that back on either the arresting, arresting or investigating officers. (Transcript of Proceedings, Sept. 23, 2021. Pg. 46, lines 10-20)

[36] Neither Constable Beck, Constable Paquette, nor Sgt. Davidson took any steps to put the Applicants in touch with counsel notwithstanding their express desire to speak to a lawyer during the booking process. This was a violation of the Applicants’ rights under s. 10(b) of the Charter and a failure on the part of DRPS to provide the implementational component of the right.

Issue #2: Should a Remedy be Granted under 24(2)?

[37] Having found that the Applicants’ rights under s.10(b) were violated by DRPS who failed to contact counsel upon completion of the booking process, I now turn to my analysis of the Grant factors.

a) Seriousness of the Charter Infringing State Conduct

[38] The failure on the part of DRPS to facilitate the Applicants’ access to counsel must be characterized as serious. Neither Constable Paquette, Constable Beck, nor Sgt. Davidson were aware of any information that justified not implementing the right to counsel. It is difficult to comprehend why both Constables read each Applicant rights to counsel and recorded their responses in their memo books, if they never had any intention of giving effect to those rights. It is even more problematic, in my view, for a Sgt. to have individuals in custody, paraded on video, confirm they want to speak to counsel, and then put them in a cell without taking any steps to follow up on who would be facilitating access to counsel, if it was not going to be her.

[39] During her testimony Sgt. Davidson was asked in chief whether she had any recollection concerning implementing the right to counsel for the Applicants in this case. She stated:

No. I, I likely would not have done anything. I don’t typically do anything for rights to counsel other than going through the questions and then, as I said, it would be up to the investigating officer or arresting officer to make that phone call. (Transcript of Proceedings, September 23, 2021. Pg. 49, lines 4 – 8)

[40] The only thing that attenuates the seriousness of the breach in my view is the fact that cross-examination revealed that Sgt. Davidson may have had no idea that the Applicants had been arrested by the TPS originally. The Arrest Charge Reports prepared by Sgt. Davidson and tendered at trial noted Constables Beck and Paquette as the arresting officers for the Defendants. In that case, given the presence of those two Constables, Sgt. Davidson may have been justified in assuming they were going to make the calls to counsel. It is for this reason that I am not prepared to conclude that this case reveals a systemic problem in Durham Region in providing timely access to counsel. Here, although misguided, I accept that Constables Beck and Paquette genuinely believed that their roll was limited exclusively to transportation of the Applicants to assist the TPS. This factor, combined with Sgt. Davidson’s indication that Beck and Paquette were the arresting officers could very well have led to an isolated problem here.

[41] Overall, however, I remain very concerned about the approach taken at 17 Division by the Booking Sgt. Reading someone their rights must be accompanied by action where it is warranted. In the absence of specific information from TPS not to contact counsel, it was incumbent on DRPS to provide the Applicants with access to counsel once at the station. Their neglect in doing so here favours exclusion of the evidence on the first branch of the analysis under Grant.

b) Impact on the Charter-Protected Impacts of the Applicants

[42] In R. v. Rover, 2018 ONCA 745, Justice Doherty stated that, “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.” (para 45)

[43] In Rover, the police arrested the accused for drug possession and then sought a warrant to search his residence. Although the accused had immediately indicated he wished to speak to counsel, police delayed his access to counsel for more than 6 hours based on a standard practice - there were no case specific concerns that justified delaying access to counsel. In conducting the 24(2) analysis anew, Justice Doherty noted that the trial judge in Rover was correct in considering the absence of any causal connection between the s.10(b) breach and the obtaining of the evidence as a factor mitigating the impact of the breach on the appellant’s Charter-protected interests. However, in assessing the period of delay at close to six hours, the Court stated that “a delay of that length, even when the police do not attempt to question the arrested person, has a significant impact on the arrested person’s rights.” (para 44)

[44] In the case at bar Officer Ebrahimi took steps to contact counsel for the Applicants as soon as he became aware it had not yet been done. At approximately 1:15pm Officer Ebrahmi placed calls to Duty Counsel for both Ms. Linscott-Wiltshire and Mr. Brown. Subsequently, Officer Ebrahimi spoke to Sgt. Davidson who advised that Ms. Brown wanted to speak to counsel of choice. At 1:47 pm Officer Ebrahimi placed a call to Ms. Penman who called back and spoke to Mr. Brown at 1:55pm. The total delay in speaking to counsel for Ms. Linscott-Wiltshire was about an hour and fifteen minutes. As a result of what I will characterize as a breakdown in communication, Mr. Brown wasn’t given effect to his right to counsel of choice for a total of one hour and forty-five minutes.

[45] There is no dispute that the police never sought to elicit evidence from either of the Applicants at any period. According to her evidence, Ms. Linscott-Wilshire was in the cell confused as to what was happening prior to the time she spoke to counsel. I accept that being in custody for the first time was difficult for Ms. Linscott-Wilshire, although her testimony did not suggest for a moment that the hour and fifteen minutes she waited to speak to counsel were particularly traumatic. On the contrary, Ms. Linscott-Wilshire presented as calm and thoughtful although I accept that she very much wanted to and needed to speak to counsel. Mr. Brown did not testify on the application, but I also infer that he wanted to speak to counsel of choice as soon as possible.

[46] In my view, the impact of the s.10(b) breach on the Charter-protected interests of both Ms. Linscott-Wiltshire and Mr. Brown was moderate. In reaching this conclusion I have carefully considered the comments of the Ontario Court of Appeal in R. v. Noel, 2019 ONCA 860. In that case the Court held that the trial judge erred in evaluating the impact of the breach by noting the accused there had not testified. The Court of Appeal reiterated that the right to counsel requires immediate access to legal advice and that the loss of that right is not neutralized because the right to consult counsel is delayed, as opposed to denied. Nevertheless, Courts are still required to assess the impact of the breach based on the totality of the circumstances in each case. In Noel, more than two hours passed before police even contemplated contacting counsel and there was ultimately a complete absence of evidence as to whether the accused spoke to a lawyer at all. In contrast, I find that TPS rectified the breach as soon as they became aware that the Applicants had not spoken to counsel. I find that the second branch of the Grant inquiry favours admission of the evidence.

c) Society’s Interest in Adjudication on the Merits

[47] The third branch of the Grant analysis requires the court to consider the societal interest in a trial on the merits. Admission of reliable physical evidence may be more likely to support the societal interest in the truth-seeking function of a trial than will for example a statement of an accused.

[48] In this case all the evidence is real reliable evidence of serious criminal activity. As of June 12, 2020, Mr. Brown was a federal inmate on parole and subject to multiple firearm prohibitions. It is without dispute that at the time of his arrest he had a loaded gun in a holster on his person. The uncontested evidence was that he was reaching for that gun when confronted by police. In the trunk of Ms. Linscott-Wiltshire’s vehicle police found a large quantity of several different illegal drugs. Courts have repeatedly held that the combination of guns and drugs represent a serious threat to a peaceful and safe society.

[49] I have no difficulty in concluding that society has a high interest in adjudication of this case on the merits.

Conclusion

[50] While the first Grant factor favours exclusion of the evidence, the second and third factors favour admission. Despite the characterization of the breach as serious, I have not found it reflects a systemic problem. Given my conclusion on the moderate nature of the impact on the Applicants and the overall conduct of the police, I find that exclusion of the evidence would harm the long-term repute of the administration of justice.

[51] The Application for relief under section 24(2) of the Charter is dismissed.

Released: April 11, 2022 Signed: Justice K.A. Fillier