ONTARIO COURT OF JUSTICE
CITATION: R. v. Tomaszewicz, 2024 ONCJ 661
DATE: 2024 12 12
COURT FILE No.: Brampton 23-31106762-01
23-31106763-01
24-31103146-01
24-31102628
BETWEEN:
HIS MAJESTY THE KING
— AND —
KEVIN TOMASZEWICZ
Before Justice P.T. O’Marra
Heard on November 5, 6, and 7, 2024
Ruling on the Charter Application released on December 12, 2024
A. Bernstein and J. Ng...................................................................... counsel for the Crown
R. Wahl................................................... counsel for the Applicant, Kevin Tomaszewicz
P.T. O’Marra, J.:
Introduction:
[1] This is a ruling on an Application by the Defence to exclude evidence (a handgun, ammunition, gun parts and a large quantity of drugs) obtained pursuant to a search warrant executed on the Applicant’s residence on the basis that the search warrant lacked sufficient grounds, and that the search was a violation of the Applicant’s rights under section 8 of the Charter. Further, the police failed to facilitate and implement the Applicant’s right to counsel by accommodating his hearing disability, thereby inhibiting his proper communication with counsel.
[2] The Applicant is charged with a series of offences with an offence date of June 21, 2023, including nine counts of possession for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act; three counts of unauthorized possession of a prohibited device, contrary to s. 91(2) of the Criminal Code; one count of careless storage of a firearm, contrary to s. 86(1) of the Criminal Code; one count of possession of a loaded firearm, contrary to s. 95(1) of the Criminal Code, and two counts of unauthorized possession of a firearm, contrary to s. 91(1) of the Criminal Code.
[3] The Crown proceeded by Indictment. The Applicant elected trial in this court. The Applicant entered a not guilty plea to all charges on November 5, 2024.
[4] The matter proceeded as a blended voir dire. The evidence was called on November 5 and 6, 2024. Counsel made submissions on November 7, 2024. The Court reserved its decision for December 12, 2024.
[5] The Defence called the Applicant’s mother, Monika Pawlowska, and the Applicant to testify. The Defence also submitted an affidavit from the Applicant. The Crown called Officer Westlake, Officer Khan, Officer Lancia and Officer Parkin. The Crown filed a video of the Applicant while he was in the interview room at the police division and the body-worn camera video of Officer Khan.
[6] The Applicant was born completely deaf. He does have a cochlear implant on the right side of his head. He estimated that he can hear approximately 20-30% of what a non-hearing-impaired person does through the implant.
[7] Out of necessity, the Applicant developed the skill of reading lips. He does not know nor communicate using American Sign Language (ASL).
[8] During the voir dire, the Applicant had the assistance of four ASL and deaf lip-reader interpreters. I observed throughout the proceeding that the Applicant often did not wait for the lip-reader to interpret but would read the lips of his counsel, the Crown, and the witnesses.
The Search Warrant:
[9] On May 31, 2023, the affiant, Tobias Mullinder of the PRP, was contacted by Officer Joy Fetherstonhaugh of the Canada Border Service Agency (CBSA), regarding an intercepted package that the CBSA seized following inspection. The package contained firearm parts, including a prohibited pistol barrel.
[10] The package was addressed to the Applicant at 403-1477 Mississauga Valley Boulevard.
[11] Following the seizure, the Provincial Weapons Enforcement Unit carried out the investigation. Police learned that the Applicant’s sister, Zenata Tomaszewicz, was part of an investigation similar to a CBSA postal seizure in February of 2023.
[12] The affiant reviewed the postal history of both the Applicant and Zenata Tomaszewicz. Of the six shipments identified as of interest, only two were addressed in the Applicant’s name. The most recent shipment was the subject package that the CBSA seized on April 12, 2023, and reported to PRP on May 31, 2023.
[13] The second package that was addressed in the Applicant’s name was not sent to what the police believed was the Applicant’s known address of 403-1477 Mississauga Valley Boulevard. It was instead addressed to 1580 Mississauga Valley Boulevard and contained a Streamlight TLR-8 rail-mounted tactical light. On February 24, 2023, the package was processed by the CBSA. Since a tactical light is not a prohibited weapon, it was not seized by the CBSA.
[14] The remaining four packages police identified as of interest were sent to Zenata Tomaszewicz. They had been sent in January and February 2023 to both 403-1477 Mississauga Valley Boulevard and 7235 Madiera Road, Mississauga.
[15] The affiant stated in the Information to Obtain (ITO) that “there are only a few obvious purposes for acquiring these parts, fixing a damaged Glock pistol, accessorizing a Glock pistol or manufacturing a firearm using Glock parts and a 3D printed lower receiver, 80% lower receiver or modified airsoft receiver.”
[16] On June 20, 2023, the Peel Regional Police (PRP) obtained a warrant to search 403-1477 Mississauga Valley Boulevard in Mississauga. Justice of the Peace Steven D’Souza authorized the warrant.
[17] On June 21, 2023, the warrant was executed by the members of the Tactical and Special Enforcement Bureau. The police were aware that the Applicant was deaf and required hearing aids.
[18] Shortly after 5 a.m., the Applicant and his girlfriend were arrested and charged within the residence.
[19] The Applicant does not take issue with the manner in which the search warrant was executed in this case.
[20] The Applicant submits that the information underlying the warrant was stale, so there was an insufficient basis for the Justice of the Peace to issue the warrant.
[21] The Applicant submits in support of his argument that since the ITO only provides evidence that the Applicant received the tactical light on February 24, 2023, and the CBSA seized the prohibited pistol barrel on April 12, 2023, there were no grounds to believe a firearm would be recovered approximately two months later.
[22] The Applicant claims that the ITO does not provide any further relevant information after April 12, 2023. The police did not make any further attempts in the ensuing two months to obtain any evidence further implicating the Applicant in possession of a firearm, or that evidence would be located in the residence that was to be searched.
[23] The Crown argues that the Justice of the Peace had ample information available that connected the Applicant, his sister, and his purported residence. Furthermore, the information provided in the ITO was not “stale” by the time the warrant was issued on June 20, 2023.
The Law:
[24] The Applicant bears the burden of demonstrating that the warrant was not validly issued. It is whether the minimum standard required for authorizing a search and seizure was established in the ITO. That standard is reasonable and probable grounds to believe that an offence has been committed and that there is evidence to be found at the place of the search: see Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 168 and R. v. Crevier, 2015 ONCA 619, [2015] O.J. No. 5109 at para. 66.
[25] On the issue of the staleness of the information, there is no minimum standard as to how recent the information must be to remain relevant: see R. v. James, 2019 ONCA 288 at para. 55 and R. v. James, 2019 SCC 52 (dissent aff’d).
[26] The passage of time is a relevant consideration on whether there were reasonable grounds; it is but one factor.
[27] The analysis of when the information relied upon by a justice becomes stale “must be undertaken on a common sense and practical basis, taking all of the prevailing circumstances into account.” See R. v. James, 2019 ONCA 288, at para. 64.
[28] It is open to the authorizing justice to “infer criminality from past criminality…Ongoing criminal enterprises do not come into existence, nor do they disappear overnight. Information that seems dated at first blush can retain its relevance.” See R. v. Beauchamp, 2015 ONCA 260 at para. 113.
[29] The information will not be stale if the ITO discloses reasonable grounds to believe the accused has been and continues to be involved in the commission of a crime.
[30] The type of criminal investigation is relevant as “the nature of the item sought and believed to be retained is a factor which may inform that the reasonableness of a belief that possession continues.” See R. v. Burke, 2013 ONCA 424, at para. 32.
[31] The currency of information underlying firearm investigations is informed by the reasonable inference that “criminals who are illegally in possession of guns tend to have them for a long time.” See R. v. Delchev, 2011 ONSC 1994, at paras. 73-75, aff’d in R. v. Herta, 2018 ONCA 927, at para. 48.
Section 8 of the Charter – Sufficiency of the Search Warrant:
Analysis: is the Information stale, and does it connect the Applicant to the residence?
[32] On May 31, 2023, the CBSA disclosed to the affiant, Officer Mullinder, that the CBSA had seized firearm parts.
[33] Officer Mullinder was also advised that the Provincial Weapons Enforcement Unit had commenced an investigation into the Applicant and his sister, Zenata Tomaszewicz, in relation to seized firearm parts for a Glock handgun.
[34] Officer Mullinder reviewed the postal history for both individuals as they had been “recipients of suspected firearm parts and accessories, some legal and some prohibited.” See Warrant to Search, Appendix C, at para. 8.
[35] Officer Mullinder believed that he had reasonable and probable grounds to believe that the Applicant, who is not a holder of a firearms licence, was illegally in possession of a firearm.
[36] Officer Mullinder’s opinion was that “there were only a few obvious purposes for acquiring these parts; fixing a damaged Glock pistol, accessorizing a Glock pistol or manufacturing a firearm using Glock parts and a 3D printed lower receiver, 80% lower receiver, or modified airsoft receiver.” See Warrant to Search, Appendix C, at para. 32.
[37] There were three separate addresses listed in Mississauga.
[38] Officer Mullinder believed that the Applicant resided at the targeted residence for two reasons. Firstly, in 2022, there was a police occurrence at the residence that confirmed that the Applicant and his girlfriend, Larah Ricketts, both resided there at the time. Secondly, two weeks before the warrant was issued, the police spoke to the property manager of the residence building. They had further reason to believe the Applicant still resided at the address. See Warrant to Search, Appendix C, at paras. 33-34.
[39] Officer Mullinder believed that the Applicant did not reside at the 1580 Mississauga Valley Blvd. and 7325 Madeira Road addresses as they were both associated with other family members. However, he believed that the Applicant was associated with the 1477 Mississauga Valley Blvd. address as he was connected to a non-suspicious shipment to that address in 2021. With respect to the Madeira Road address, it was believed that the address was only related to his sister, Zenata Tomaszewicz, since the previous legal and illegal shipments were only associated with her and not with the Applicant. See Warrant to Search, Appendix C, at para. 31.
[40] In my view, it is reasonable to conclude that there were grounds to justify the search of 403-1477 Mississauga Valley Blvd. based on the pattern of the shipments addressed to the Applicant and or his sister over approximately three months.
[41] Based on the postal history, it was reasonable to infer that the seized packages, including the prohibited gun barrel, despite being addressed to Ms. Tomaszewicz only, were destined for the Applicant since the packages were sent to his address.
[42] I reached this conclusion on two occasions; namely on January 7, 2023, and February 14, 2023, when gun parts for a Glock were sent to Ms. Tomaszewicz at the 1477 Mississauga Valley Blvd. address.
[43] Furthermore, on February 14, 2023, the Applicant was sent a mounted tactical light to the 1580 Mississauga Valley Blvd. address. On April 12, 2023, the Applicant was named as the recipient of a package that contained multiple gun parts for a Glock that was sent to the 1477 Mississauga Valley Blvd. address.
[44] It was reasonable in all the circumstances to infer that there was a connection between the Applicant and the firearm accessories that he obtained through packages sent to two addresses, a connection between the Applicant and Zenata Tomaszewicz, and a connection between both individuals and the Applicant’s address.
[45] In my view, it was open to the issuing Justice of the Peace to infer the following:
The Applicant was purchasing accessories or parts to modify his Glock firearm.
Since January 7, 2023, the Applicant has been involved in attempting to modify a firearm that he possesses.
That persons who illegally possess firearms tend to have them for long periods.
The Applicant had no incentive or immediate need to dispose of the firearm, and as such, possession of the firearm was ongoing. The Applicant was not suspected of committing any offence(s) where a firearm was used.
To believe that from January to April, the Applicant had successfully acquired firearm accessories. This was some evidence of ongoing criminal activity, which furnished sufficient grounds to believe that a firearm would be recovered in June.
Conclusion:
[46] In conclusion, the information contained in the ITO relied on by the issuing Justice of the Peace was not stale when the search warrant was issued on June 20, 2023. It was reasonable for the issuing Justice of the Peace to infer that there was a connection between the Applicant and the subject residence. As such, the warrant did not lack sufficient grounds to be issued and is valid. The Applicant’s section 8 rights were not infringed.
The Right to Counsel, section 10(b): Did the police fail to accommodate the Applicant’s hearing disability to ensure he could communicate with counsel?
[47] The Applicant argues that the police officers failed to accommodate the Applicant’s hearing disability as he was unable to communicate with counsel effectively.
The Evidence:
[48] On June 21, 2023, at approximately 5 a.m., police executed a search warrant at the Applicant's residence. He was subsequently arrested. The officers involved in the investigation were aware that the Applicant had a hearing impairment. They requested Officer Westlake to attend the execution of the warrant to serve as an American Sign Language (ASL) translator. However, the officers were not aware at the time that the Applicant did not know ASL.
[49] Once the Tactical Team had secured the residence, Officer Westlake was requested to attend. He found the Applicant in handcuffs in the kitchen. Officer Westlake asked the Applicant if he knew ASL. The Applicant verbally responded that he did not. However, he informed Officer Westlake that he was able to hear if he was given his hearing aids, which were in his bedroom. Since the Tactical Team was still clearing the residence, Officer Westlake did not go to the bedroom immediately to retrieve the hearing aids. While they waited, Officer Westlake confirmed that the Applicant could read and write. At 5:17 a.m., Officer Westlake opened the Notes application on his iPhone and began a typed conversation with the Applicant.
PC Westlake: “Warrant you under arrest for a firearm.”
Applicant: “it’s a BB gun.”
PC Westlake: “You have the right to a lawyer.”
Applicant: “Yes I am good person look at my photo.”
PC Westlake: “Okay, it will get sorted out then. Police have information that you have a gun.”
Applicant: “My girlfriend we have been together for 6 years.”
PC Westlake: “She is fine, she is getting dressed.”
[50] Shortly after, the Applicant received his hearing aids after Officer Westlake found new batteries in the Applicant's pocket and inserted them into the devices.
[51] The Applicant confirmed that he could hear.
[52] The Applicant was then removed from his residence and escorted into the hallway. At this point, a body-worn video camera recorded Officer Lancia, who explained the Applicant's rights to counsel, and issued a caution. The Applicant verbally confirmed his understanding.
[53] In the hallway, the Applicant indicated that he could hear when a phone was placed on speaker mode and held up to his ear.
[54] The Applicant stated that he wanted to access his phone to call a friend who could then contact a lawyer on his behalf. However, he could not remember his friend's phone number and refused to allow the officers to search his phone to find it.
[55] At 5:27 a.m., the Applicant was handed over to Officer Khan, who transported him to 12 Division.
[56] At 5:35 a.m., Officer Khan read the police caution to the Applicant, who verbally indicated that he understood it. The Applicant also confirmed that he understood the charges against him. Officer Khan had to speak loudly for the Applicant to hear him, which is common due to the glass partition, which makes it more difficult for a prisoner to hear.
[57] After arriving at 12 Division, the Applicant was booked and placed in a holding cell.
[58] At 6:12 a.m., Officer Khan called Duty Counsel. He recalled that the Applicant had requested to speak with Duty Counsel while in his cruiser. Officer Khan noted in his notebook that this request was made at 6:08 a.m.
[59] Officer Khan was uncertain whether he had left a message for Duty Counsel that included any information about the Applicant’s hearing difficulties.
[60] At 7:47 a.m., Officer Lancia attended the cells and spoke with the Applicant. He informed the Applicant that sixteen charges would be laid against him. Officer Lancia then recited the rights to counsel, ensuring clarity by asking the Applicant if he understood after each statement. The Applicant responded "yes" each time. When asked if he wanted to call a lawyer, the Applicant replied, "Duty Counsel, please."
[61] At 7:51 a.m., Officer Lancia read the primary and secondary cautions to the Applicant. The Applicant indicated that he understood both cautions.
[62] At 8:00 a.m., Officer Lancia called Duty Counsel.
[63] At 8:01 a.m., the Applicant was placed in an interview room.
[64] At 8:05 a.m., Officer Lancia entered the room with a telephone and plugged it into the wall.
[65] During the voir dire, a video recording from the interview room was played. After Officer Lancia plugged in the telephone, the Applicant requested his phone. He confirmed that he would be able to hear through the phone that was connected to the wall. The Applicant also told Officer Lancia, “This is my first time... I need a lawyer. I have never had a lawyer before.”
[66] When Officer Lancia left the room for a few minutes, the Applicant attempted to dial out but was unsuccessful. He was informed that the phone could only receive calls.
[67] The Applicant asked Officer Lancia how long he would have to wait. The officer replied, “until the lawyer calls,” and asked the Applicant to be patient.
[68] The Applicant stated that if he was released, he could pay a lawyer “4000 or 5000, no problem.”
[69] Officer Lancia told the Applicant to wait for the phone to ring and then pick it up.
[70] At 8:18 a.m., the Duty Counsel called back. The Applicant held the phone to his ear for approximately five minutes, his hands moving. He hung up the phone and looked upset.
[71] At 8:23 a.m., Officer Lancia returned to the interview room. The following conversation took place:
OFFICER: Kevin.
TOMASZEWICZ: So hard to understand on the phone.
OFFICER: What’s that?
TOMASZEWICZ: It's hard to listen to calls.
OFFICER: Understand the call?
TOMASZEWICZ: No, I don’t understand. It's so hard to...
OFFICER: Okay.
TOMASZEWICZ: ...not understand the phone.
OFFICER: Yeah. So, you didn’t understand the phone call?
TOMASZEWICZ: No.
OFFICER: Why not?
TOMASZEWICZ: ‘Cause I have a hearing...
OFFICER: Yeah.
TOMASZEWICZ: ...problem. When a person it's easier you know.
OFFICER: Yeah. Yeah. What about on speakerphone? You understand it better when it's on speakerphone? Well you’re going to be brought up to, you’re going to be brought up to...
TOMASZEWICZ: To be honest...
OFFICER: ...to bail.
TOMASZEWICZ: ...(inaudible) this old school phone no.
OFFICER: Yeah. I mean this is all we have right. This is the only way for us to have make sure that you have a private phone call like this right. Why don’t.
TOMASZEWICZ: But I could take the bail...
OFFICER: Yeah.
TOMASZEWICZ: ...so I take it get lawyer so I could try okay figure out to fight this.
OFFICER: Yeah.
TOMASZEWICZ: Go to court soon.
OFFICER: Okay well you’re going to be going to the court shortly right.
TOMASZEWICZ: What you mean?
OFFICER: You’re going to be brought up to court this afternoon to court this afternoon. You’re going to be held for bail this morning okay.
TOMASZEWICZ: I don’t understand.
OFFICER: You’re going to be brought up to bail this morning okay.
TOMASZEWICZ: So, then I could go home?
OFFICER: To court yeah. No, you can't go home. You can't go home. There was a firearm found in your house right.
TOMASZEWICZ: Yeah but can I but that’s why I need my good phone so I can call my friend specific lawyer.
OFFICER: Do you know a name?
TOMASZEWICZ: I'm scared I don’t want to go to jail. (Inaudible). I don’t understand the phone call. That’s why I need like technology you know.
[72] When asked if he could provide a contact number to Officer Lancia so someone could assist him, he was unable to do so. The Applicant requested to speak with his mother and a friend who could help.
[73] When asked if it would be easier for him to type the number from memory on his phone, he requested access to his phone. When asked for the name of a lawyer he could call, the Applicant did not provide a name but instead insisted that he wanted his phone.
[74] When asked what the police officer could do instead, the Applicant responded that he wanted to hire an "expensive lawyer, any lawyer."
[75] At 8:35 a.m., Officer Lancia left the room to contact the Applicant's mother. He found her phone number and called her, noting, "The mother is working on providing further lawyer details for Kevin."
[76] At 8:57 a.m., Officer Lancia returned to the room and informed the Applicant that he had spoken with the Applicant's mother, who was working on securing a lawyer for him.
[77] The Applicant was escorted out of the interview room for bail court at 9:05 a.m.
[78] During this interaction, Officer Lancia did not attempt to gather any incriminating evidence from the Applicant. He did not inquire about the firearm ammunition or drugs found in the home, did not discuss the allegations, nor did he ask the Applicant to provide comments on the events that occurred hours earlier.
[79] Additionally, all police officers testified that the Applicant never requested a remote control that was compatible with his cochlear implant.
[80] Officer Lancia testified that he believed the Applicant was dissatisfied with his conversation with Duty Counsel. He was uncertain whether this dissatisfaction stemmed from the Applicant's inability to hear the conversation, a perception that Duty Counsel was not “fit” to represent him, or a combination of both factors. However, in cross-examination, Officer Lancia admitted that the Applicant never explicitly stated he was unhappy with the quality of the advice from Duty Counsel; rather, the Applicant indicated he could not hear the call.
[81] During cross-examination, Officer Lancia acknowledged that a plan was in place to inform the Applicant about his rights to counsel, but he admitted he did not know how to implement these rights effectively. He also recognized that no one explained how the Applicant could use a phone or communicate with counsel.
[82] The phone that the Applicant used lacked speakerphone capability. Officer Lancia mentioned that it occurred to him that he could arrange a speakerphone conversation with Duty counsel in another room or provide a work cellphone for the Applicant's use. However, these alternatives were not pursued.
[83] In the video recording of the interaction between Officer Lancia and the Applicant, Officer Lancia suggested using a speakerphone; however, he did not wait for the Applicant's response and instead shifted the conversation to the topic of being taken to bail court. Notably, the Applicant referred to the phone as an “old school” phone.
[84] Officer Lancia candidly testified that he was unaware of any directives or procedures established by the Peel Police Service to ensure the right to counsel for a deaf accused individual. He mentioned that he spent about 25 to 30 minutes working with the Applicant to determine how to facilitate a call to counsel.
[85] In cross-examination, Officer Lancia conceded the following:
THE COURT: Can you repeat that, sir?
A. Yeah, no, it’s all good. Yeah. So, I was just saying that, yeah, I mean, that, ultimately, I was the one who was reading his rights and facilitating it and if it, you know, it wasn’t done thoroughly or properly, I mean, ultimately, that’s, that’s on me. I don’t think that that was my intent at any point during the interview not to facilitate the — those rights to counsel. There was a barrier, right? I thought I was doing the best I could with it, right? Yeah. That’s my response.
Q. If there were other options available, either that might have been discovered through the Peel Regional Police directives or that, that you knew of, who was responsible for providing Kevin with those options to speak to a lawyer?
A. It would be me or the officer in charge of the Division, right? The lodging staff sergeant, right? They have those conversations with anybody who comes through our facilities, and, ultimately, the arresting officer or anybody who’s impacting Kevin’s jeopardy along the chain of custody, right? Charges are changing or there’s a new discovery of evidence that he needs to be aware — made aware of or whatever the case is. So, any time that, that jeopardy changes, ultimately, somebody, whether it’s myself or whoever is dealing with Kevin, or an accused person needs to, to make sure they understand those rights to counsel. That’s my understanding.
[86] Reflecting on the process of facilitating a telephone call to the Applicant's counsel and acknowledging his own limitations, Officer Lancia testified that he did his best. However, he mentioned that if given the chance, there are many aspects he would change.
[87] The Applicant was in custody at 12 Division for 11 hours and was eventually brought to bail court. He did not have any further conversations with counsel.
[88] The Applicant’s mother, Monika Pawlowska, testified that she received a phone call that morning, June 21, 2023, at approximately 9 a.m. from Officer Lancia, who advised her that the Applicant was under arrest and would be going to a bail hearing.
[89] She testified that since her son has been in custody, he can only communicate with her over the phone by relying on another inmate at Maplehurst to act as a communicator. He is unable to speak directly with his mother on the phone because of his hearing impairment.
[90] During cross-examination, Ms. Pawlowska denied that Officer Lancia ever mentioned getting a private lawyer for her son or explained the charges to her. She acknowledged, however, that she was very emotional and upset during their conversation after learning that her son was in police custody. Ms. Pawlowska stated that it wasn't until she visited her son at Maplehurst that he talked about obtaining an "expert" lawyer, not a private lawyer.
[91] I found Ms. Pawlowska to be an understandably emotional witness. However, her testimony primarily illustrated the Applicant's inability to communicate effectively using a standard landline telephone. I do not believe it is necessary to determine whether Officer Lancia advised her to contact a private lawyer for her son, as this issue is not decisive in assessing whether there was a breach of section 10(b).
[92] The Applicant testified with the assistance of a lip-reader. He faced challenges in delivering his answers. Often, he struggled to understand the questions, and even when he did comprehend them, he did not answer directly.
[93] He had difficulty recalling his call to Duty Counsel, other than stating that it was “hard to hear in the room.”
[94] He acknowledged that, in the video, he asked Officer Lancia for his phone so he could call either his friend or his mother. However, he disagreed with the statement that he did not inform the police that he needed his iPhone to hear better.
[95] The Applicant admitted to having a very poor memory. He conceded that he could not recall any details from his affidavit or even the fact that Officer Westlake had testified the previous day.
[96] The Applicant demonstrated a lack of reliability as a witness, primarily due to his poor memory, and challenges in responding directly to questions. Throughout the questioning process, it became evident that he struggled to recall specific details, which undermined his credibility. Furthermore, it is important to note that his inexperience and lack of sophistication as a witness contributed to his difficulties. He often appeared confused by the questions posed to him, which not only affected his ability to comprehend what was being asked but also hindered his capacity to articulate clear and coherent responses. These factors collectively impacted the overall effectiveness of his testimony.
[97] I found all four officers to be credible and reliable witnesses. Furthermore, I determined that none of the police officers attempted to obtain any incriminating evidence from the Applicant after he was arrested, cautioned, and informed of his rights to counsel.
The Law: General Principles and Considerations: Understanding Section 10(b) of the Charter:
[98] Section 10(b) of the Charter states, “Everyone has the right on arrest or detention … to retain and instruct counsel without delay and to be informed of that right.”
[99] The case of R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, discussed the duty of the police as being informational and implementational. The Supreme Court stated, in part, as follows:
21 In my view, s. 10(b) imposes at least two duties on the police in addition to the duty to inform the detainee of his rights. First, the police must provide the detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay. The detainee is in the control of the police and he cannot exercise his right to counsel unless the police provide him with a reasonable opportunity to do so. This aspect of the right to counsel was recognized in Canadian law well before the advent of the Charter. In Brownridge v. The Queen, 1972 CanLII 17 (SCC), [1972] S.C.R. 926, a case decided under the Canadian Bill of Rights, Laskin J., as he then was, wrote at pp. 952-53:
The right to retain and instruct counsel without delay can only have meaning to an arrested or detained person if it is taken as raising a correlative obligation upon the police authorities to facilitate contact with counsel. This means allowing him, upon his request, to use the telephone for that purpose if one is available.
The duty to facilitate contact with counsel has been consistently acknowledged under s. 10(b) of the Charter by the lower courts: R. v. Nelson (1982), 1982 CanLII 3760 (MB QB), 3 C.C.C. (3d) 147 (Man. Q.B.); R. v. Anderson (1984), 1984 CanLII 2197 (ON CA), 10 C.C.C. (3d) 417 (Ont. C.A.); R. v. Dombrowski (1985), 1985 CanLII 182 (SK CA), 18 C.C.C. (3d) 164 (Sask. C.A.), and the Ontario Court of Appeal in this case. In Dombrowski, the Court held that, where a telephone is available at an earlier occasion, there is no justification for delaying the opportunity to contact counsel until arrival at the police station.
23 Further, s. 10(b) imposes on the police the duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel. The purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights. In this case, the police officers correctly informed the respondent of his right to remain silent and the main function of counsel would be to confirm the existence of that right and then to advise him as to how to exercise it. For the right to counsel to be effective, the detainee must have access to this advice before he is questioned or otherwise required to provide evidence. I discussed the duty imposed on the police in the context of a breathalyzer demand in R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, at p. 624:
I do not want to be taken here as giving an exhaustive definition of the s. 10(b) rights and will limit my comments in that respect to what is strictly required for the disposition of this case. In my view, s. 10(b) requires at least that the authorities inform the detainee of his rights, not prevent him in any way from exercising them and, where a detainee is required to provide evidence which may be incriminating and refusal to comply is punishable as a criminal offence, as is the case under s. 235 of the Code, s. 10(b) also imposes a duty not to call upon the detainee to provide that evidence without first informing him of his s. 10(b) rights and providing him with a reasonable opportunity and time to retain and instruct counsel.
[100] When a detainee indicates a desire to exercise his or her right to counsel, the state is required to provide a reasonable opportunity to do so, and state agents must refrain from eliciting incriminatory evidence from the detainee until there has been a reasonable opportunity to reach counsel. What constitutes a reasonable opportunity will depend on all the surrounding circumstances: See R. v. Prosper (1994), 1994 CanLII 65 (SCC), 92 C.C.C. (3d) 353 (S.C.C.), p. 375.
[101] In R. v. Brydges (1990), 1990 CanLII 123 (SCC), 53 C.C.C. (3d) 330 (S.C.C.), the Court stated, in part, as follows:
13 ...Fair treatment of an accused person who has been arrested or detained necessarily implies that he be given a reasonable opportunity to exercise the right to counsel because the detainee is in the control of the police, and as such is not at liberty to exercise the privileges that he otherwise would be free to pursue. There is a duty then, on the police to facilitate contact with counsel...
[102] The determination of whether the police provided a detainee with his or her right to counsel, including the information required to assist in exercising the rights to counsel and facilitated contact, is fact-specific in the circumstances of each case. The court must also consider whether the detainee has been diligent in exercising the right to counsel.
[103] It is well established that breaches of the section 10(b) right will occur when “special circumstances” arise in the context of ensuring an accused understands the right to counsel (e.g. language, severe intoxication, mental disability injury). See R. v. Willier, 2010 SCC 37 at para. 42; R. v. Nichols, 2018 ABPC 29, at para. 64, R. v. Sivasubramaniam, 2024 ONCJ 606, at paras. 49-53, R. v. Yousufi, 2017 ONCJ 897, at paras. 59-69.
[104] In R. v. Vanstaceghem (1987), 1987 CanLII 6795 (ON CA), 36 C.C.C. (3d) 142 at para. 20, the Ontario Court of Appeal found:
It is not sufficient for a police officer upon the arrest or detention of a person to merely recite the rights guaranteed by s. 10 of the Charter. As section 10(b) stipulates, the accused or detainee must be informed. This means that the accused or detainee must understand what is being said to him or her by the police officer. Otherwise, he or she is not able to make an informed choice with respect to the exercise or waiver of the guaranteed rights.
If the rights are read in English only, and the accused's or detainee's knowledge of the English language does not allow sufficient comprehension of the matter, those are "special circumstances" which alert the officer and oblige him to act reasonably in the circumstances.
[105] There is no doubt that the Applicant and his hearing disability qualify as a situation where "special circumstances" are present. The police were well aware of this and, to some extent, took steps to accommodate it when they arrested him. Officer Westlake was used as an ASL interpreter to inform the Applicant of his right to counsel.
Section 10(b) and Hearing Impairment:
[106] This court has dealt with several cases in which the accused had hearing difficulties and the implementation of the rights to counsel.
[107] The decision R. v. Malette, [2014] O.J. No. 967 (C.J.) directly addresses hearing impairment and the implementation of the rights counsel. The police attempted to assist the accused in speaking with Duty Counsel four separate times. The accused continued to bring his hearing impairment difficulties to the attention of the police, telling them that he could not hear Duty Counsel. The police took the position that Mr. Malette was pretending not to be able to hear. Concerned about losing evidence if they did not carry on with their investigation, they proceeded with the breath tests. The Court found that the accused had hearing loss in both ears, so he could not hear Duty Counsel on the various phones provided to him when he was attempting to seek legal advice. This constituted a breach of the accused’s s. 10(b) rights as he had not been afforded an opportunity to speak with counsel effectively or meaningfully. Specifically, the Court concluded the following at paras. 29-31:
I find on the balance of probabilities that the accused has established that he has a moderate to profound hearing loss in both of his ears such that he could not hear the Duty counsel on the various phones provided to him for the purposes of seeking legal advice. I further find that the accused as a result, did not have a proper conversation with legal counsel prior to being required to provide suitable breath samples to a qualified technician in an approved instrument.
I acknowledge that Sergeant McDonald, in particular, attempted to accommodate the accused in getting legal advice but that he was unaware as to the capabilities of the various phones in the Petawawa Detachment and was unaware as to whether or not there was any other hearing impaired equipment that could assist a hearing impaired individual in circumstances such as the accused before the court. I also find that this problem was systemic in the Petawawa Detachment of the Ontario Provincial Police because none of the officers were aware if the Petawawa Detachment had any equipment to assist hearing impaired individuals. I also find that there was not a defined protocol in these circumstances in view of the fact that the officers were not aware of other technologies such as TTY phones or stand alone computers that could be used to communicate with Duty counsel .
I further find that the accused did not at any point in time waive his right to speak with legal counsel prior to providing his breath samples.
As a result, the Court found a breach of s. 10(b) of the Charter and the breath readings were excluded pursuant to s. 24(2).
[108] In R. v. Gocek, 2005 ONCJ 537, Justice Dawson considered the context of rights to counsel in a scenario where the accused was arrested and given his rights to counsel in English. At the station, the accused, who spoke Polish, was connected to a Polish-speaking lawyer. There were also hearing difficulties. The Court stated at para. 70:
I am satisfied on the balance of probabilities that Mr. Gocek had problems hearing the lawyer on the phone. The call was short, under two minutes duration. He expressed a concern prior to going into the room and he was told "to try". In the circumstance of this particular case where he had obviously indicated a hearing problem, when he had indicated a difficulty using the phone, which I find he did indicate and where he was told to "try", I am not prepared to find that there was a lack of due diligence in bringing to the officer's attention any difficulties he had on the phone. The police in these circumstances did not take sufficient steps as referred to in Regina v. Bartle to ensure that his rights to counsel had been complied with. No one asked him if he had been able to communicate with the lawyer.
[109] The Court found a breach of s. 10(b) of the Charter and excluded the breath readings pursuant to s. 24(2).
[110] In R. v. Dennie, [1997] O.J. No. 1299 (Ont. C.J.C. (Gen. Div., S.C.A.)), the Court held that an officer should call for an interpreter when it is clear there is some difficulty in the detainee’s ability to understand the various police warnings and their rights to counsel. In this case, the officer knew that there was a difficulty but felt he was communicating with the detainee. The accused was a deaf-mute who was given the right to counsel to read. No effort was made to call the sign language interpreter as the officer felt that he was communicating with the accused. There was evidence that, in fact, the accused could not read or write in English with any degree of competency and had comprehension difficulties. His rights were found to have been breached, and the trial judge’s conclusion under section 24(2) was that the evidence should not be excluded. On appeal, the decision to exclude the evidence was overturned, and a new trial was ordered on the basis that the trial judge erred in speculating about what the accused would have done had he exercised his right to counsel.
[111] In R. v. MacDonald, [1992] N.S.J. No. 700 (N.S.S.C.), a severely hearing-impaired person was charged with driving while having excessive blood alcohol content and with impaired driving. The police had given him the standard Charter caution and advised him of his right to counsel but had not provided him with an interpreter. The police felt that they had fulfilled their obligations by speaking loudly and gesturing. In finding the accused not guilty, the Nova Scotia Provincial Court found that, on balance, the accused's Charter rights were violated and excluded the evidence under subsection 24(2). The Court could not be certain that the accused had understood his rights in the absence of an interpreter, even though the police introduced evidence that he had understood.
[112] In Regina v. Murray, [1992] N.S.J. No. 1 (N.S. Co. Ct.), the accused had moderate to severe impairment. Expert evidence was called as to the level of his impairment and that he could not fully hear or comprehend the Charter caution. Additionally, the Court found that the police did not ensure they received a verbal response to the caution and had no record of the response. The full information of the caution on the police card was not read. Finding a breach of s. 10(b), the Court held that fully hearing and understanding the reasons for arrest and, therefore, the extent of jeopardy is a prerequisite to a meaningful decision to retain counsel. The evidence was excluded on a s. 24(2) analysis.
[113] 'Special circumstances' requiring further steps by police were also found in R. v. Cormier, [1988] N.B.J. No. 603 (Q.B.), where the detainee was deaf and could not hear the 'informational component' of the right to counsel. This exception does not apply where the detainee is hard of hearing, but police otherwise effectively communicate the informational content of the right to counsel. For instance, in R. v. Senchuk (1991), 27 M.V.R. (2d) 289 (Sask.Q.B.), the accused drove through a garage door. The police arrived on the scene and observed signs of alcohol impairment. The police made a breathalyzer to the accused. Prior to the demand, the accused was informed of his right to counsel. Unknown to the officer, the accused was hearing impaired. Usually, it was the accused's habit to request repetition when he did not hear what was being said. On this occasion, he did not make such a demand. He was acquitted of the charges of impaired driving based on the ground that evidence of the breathalyzer test was inadmissible. The trial judge acquitted the accused. On appeal, the Court found that the accused willfully avoided hearing the warning. Thus, the certificate of analysis should have been admitted and the accused convicted.
[114] The accused must also be duly diligent in exercising their right to counsel. For instance, in R. v. Yaw, 2019 ONCJ 90, the Court held at para. 96:
Rights to counsel are intended to place the detainee in a position in which they are able to make a meaningful choice as to whether to cooperate with the police investigation. The detainee, however, has an obligation to advise police if there has been some problem or difficulty with the implementational component of the right to counsel. The police cannot be put in the position of having to interrogate the person about the adequacy of the discussion with Duty counsel . This would undermine the required privacy that the detainee is entitled to when exercising their rights to counsel. In the absence of an objective indication that something more is needed to fulfill the implementational component, the police should not be required to provide further consultation with counsel.
Analysis: Was the Implementation component of the Applicant’s rights to counsel breached?
[115] I have concluded that the Applicant's Charter rights under section 10(b) were indeed violated. This case involved "special circumstances" regarding the Applicant's inability to hear and understand his rights. Therefore, the police, particularly Officer Lancia, were required to take additional reasonable steps to ensure that the Applicant could exercise those rights in a meaningful way.
[116] The police were aware of the Applicant’s hearing disability. All officers who interacted with him testified that his ability to communicate was limited, and he struggled to understand or hear what was being said to him.
[117] I have observed the Applicant both in court and on video. His hearing is poor, and at times, his speech is difficult to understand. Section 10(b) aims to protect the interests that may be compromised if the accused does not fully understand their rights upon detention and, as a result, cannot effectively exercise those rights.
[118] I am satisfied that the Applicant did attempt to exercise his right to counsel when he answered a call from Duty Counsel in the interview room between 8:18 and 8:23 a.m. However, after ending that call, it became apparent from his remarks that he could not hear the conversation with Duty Counsel. He immediately told Officer Lancia, “It’s so hard to understand the phone,” “It’s hard to listen to the call,” and “No, I don’t understand. It’s so hard to... not understand the phone.” When Officer Lancia asked him why, the Applicant replied, “Because I have a hearing problem. When a person speaks, it’s easier, you know?” According to his testimony and affidavit, despite using his hearing aids, his ability to hear is only enhanced to “about 20-30% of what a non-hearing-impaired person can hear through the implant when the attachment is connected.”
[119] I cannot agree with the Crown's assertion that the Applicant had a trouble-free telephone call with Duty Counsel. I am not convinced that the Applicant did not exhibit any signs of discomfort or frustration during the call. The video recording clearly shows that while he was on the phone, his hands were moving, and he appeared upset after the conversation. When Officer Lancia returned to the interview room, the Applicant mentioned that he was having difficulty hearing the discussion.
[120] After Officer Lancia noticed that the Applicant had trouble hearing on the provided phone, he suggested using a speakerphone. However, before they could finalize this arrangement, the officer began discussing the bail issue. During this conversation, the Applicant voiced concerns about continuing to use the old phone. The officer responded, "It's all we have, right?"
[121] Officer Lancia did not attempt to connect the Applicant with Duty Counsel before he was taken to court approximately 11 hours later.
[122] The Crown argues that the Applicant was more interested in speaking with a private lawyer but either could not or did not provide a phone number for his preferred counsel. He requested the police to contact his mother in order to help him find a lawyer. I acknowledge that Officer Lancia later called the Applicant's mother and asked her to locate a lawyer. However, this did not relieve the police of their duty to facilitate contact with Duty Counsel before that call was made to his mother.
[123] The Applicant told Officer Lancia, “I’m scared. I don’t want to go to jail. I don’t understand the phone call. That’s why I need technology.” He expressed a need for his iPhone so he could reach out to his mother or a friend and hire an expensive lawyer. Officer Lancia explained that the iPhone had been seized.
[124] I have two main concerns regarding this situation. First, because the initial call to Duty Counsel was unsuccessful, the Applicant did not receive any advice about his rights concerning liberty and protection against self-incrimination. Second, there was evidence suggesting that the Peel Police did not have any hearing-impaired equipment to accommodate the Applicant for a conversation with counsel, even if his counsel of choice had contacted 12 Division.
[125] I found that Officer Lancia was unaware of any policies or directives concerning assistance for hearing-impaired individuals in police custody. He also did not know of any equipment that could help hearing-impaired detainees communicate with their counsel. This appears to be a systemic issue within 12 Division of the Peel Regional Police Service, as no equipment, such as Teletypewriter Phones (TTY) or other specialized telecommunication devices, was provided to the Applicant to facilitate effective communication with Duty Counsel.
[126] I am satisfied, and the counsel for the Applicant agrees, that in this case, the police collectively fulfilled their informational duties under section 10(b). I further acknowledge that Officer Lancia and Officer Khan made efforts to comply with the implementation duties required under section 10(b) by contacting Duty Counsel. However, Officer Lancia did not fully meet his implementation responsibilities because he lacked training in assisting hearing-impaired individuals and was unfamiliar with any policies or directives regarding how to help hearing-impaired detainees access counsel. Additionally, there was no specialized equipment available to facilitate communication between the hearing-impaired accused and their counsel.
[127] In this case, it is evident that the Applicant acted diligently in exercising his right to counsel. He conveyed his intent to communicate with Duty Counsel to Officers Khan and Lancia. Unfortunately, his ability to do so was hindered by using an outdated telephone, which lacked the technological capability to accommodate his hearing impairment. I remain unconvinced that he waived his right to consult with Duty Counsel after being deprived of effective communication. When he requested Officer Lancia to contact his mother or a friend to arrange for legal representation, his frustration was apparent. Subsequently, he was informed that he would be appearing in bail court, which exacerbated his distress. Had he been afforded the opportunity to consult with Duty Counsel, critical matters regarding his bail and liberty interests could have been adequately clarified to him.
[128] I want to address the issue of the delay in informing the Applicant of his right to counsel, which counsel raised in her submissions. After reviewing the circumstances, I find that the officers did not delay in informing the Applicant of his rights. The Applicant was arrested at 5:00 a.m., and Officer Lancia read the rights to counsel at 5:15 a.m. Officer Khan re-read the rights at 6:08 a.m., and Officer Lancia provided a further reading of the rights at 7:47 a.m. as additional charges were about to be laid. Despite the Applicant's limited understanding of American Sign Language (ASL), the officers were diligent in ensuring that his rights to counsel were communicated to him. Therefore, I conclude that there was no delay in providing the rights to counsel under these circumstances.
[129] I do not consider the approximately two-hour delay in speaking with Duty Counsel to be a violation of the Applicant's rights under section 10(b). I concur with the Crown's argument that the unexplained delay reflects the response time of Duty Counsel rather than any negligence on the part of the police. Officer Khan, the transporting officer, called Duty Counsel upon arriving at 12 Division at 6:12 a.m., and Officer Lancia made a call at 7:47 a.m.
Conclusion:
[130] However, for the reasons already stated, I find that on a balance of probabilities, the implementation component of the Applicant’s section 10(b) rights was infringed by not facilitating contact with counsel.
Section 24(2) of the Charter:
[131] Given that the Applicant's section 10(b) rights were violated, I must determine whether the evidence obtained during his arrest should be excluded under section 24(2).
[132] While there was no causal connection between the discovery of the firearm ammunition and drugs and the s. 10(b) breach, there was a close temporal connection. In my view, there is a connection sufficient to engage s. 24(2): see R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561.
[133] The exclusionary rule in s. 24(2) operates on the assumption that the routine admission of constitutionally tainted evidence must have a long-term adverse effect on the repute of the administration of criminal justice. As explained in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 70:
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.
[134] In R. v. Rover, 2018 ONCA 745, at para. 37, Justice Doherty explained the rationale for the exclusionary rule identified in Grant:
...as applied in these circumstances, requires a consideration of the long-term impact on the reputation of the administration of justice caused by the admission of evidence obtained in an investigation conducted under a police practice that inevitably and routinely denies detained persons their constitutional right to access counsel. The systemic nature of the violation plays a central role in assessing its long-term impact on the proper administration of justice.
[135] Under s. 24(2), the court must balance and assess the effect the admission of evidence would have on society’s confidence in the justice system considering:
a) The seriousness of the Charter-infringing conduct.
b) The impact of the breach on the Charter-protected interests of the accused; and
c) Society’s interest in the adjudication of the case on its merits. See R. v. Grant, 2009 SCC 32 at para. 71.
The Seriousness of the Breach:
[136] The seriousness of a breach takes into consideration the conduct of the police. This conduct can range from unintentional or minor violations to willful or reckless disregard of Charter rights. The more severe or intentional the conduct, the greater the need for the courts to disassociate themselves from it.
[137] The police were aware that the Applicant was deaf. The investigating officers, who organized the execution of the warrant, arranged for Officer Westlake to assist in communicating the Applicant's rights to counsel using American Sign Language (ASL). When it became clear that the Applicant was unable to communicate effectively, Officer Westlake began to type information for the Applicant using his iPhone. He eventually located and provided the Applicant with his hearing aids and batteries. Counsel has acknowledged that the police effectively communicated the Applicant's rights to counsel. I concur.
[138] Once the Applicant arrived at 12 Division, Officer Khan and Officer Lancia contacted Duty Counsel on his behalf. However, when Duty Counsel eventually called back, the Applicant was given a landline phone that did not have talk-to-text technology. After the Applicant indicated that he could not hear the conversation, Officer Lancia suggested that he communicate with Duty Counsel using the speakerphone. While Officer Lancia had good intentions and was trying to help, this suggestion was illogical and impractical. This proposal is akin to presenting a blind individual with a phone book and asking them to find a lawyer's phone number amid the dense pages. If they struggle with this daunting task, simply offering a magnifying glass would prove inadequate, as it does not address the fundamental challenge of their inability to see the text to begin with. Additionally, the phone did not have the necessary capabilities, and using the speakerphone would not ensure the accused's right to speak privately with a lawyer.
[139] The failure of the Peel Police Service to provide suitable hearing equipment and technology for a deaf accused individual to effectively communicate with counsel underscores a significant systemic issue and constitutes a serious infringement of rights. This situation is particularly troubling in light of the Accessibility for Ontarians with Disabilities Act, S.O. 2005, c. 11. It is imperative for the Peel Regional Police Service (PRPS) to develop comprehensive policies that adequately address the needs of individuals with disabilities. This should include specific guidelines regarding police interactions with deaf individuals and those who are hearing impaired, in alignment with the objectives of the Act.
[140] The Rover decision expanded section 10(b), which encompasses a person's security interests and highlights that a person's psychological integrity may be affected by significant delays in accessing Duty Counsel. In this case, the accused was arrested before a search warrant was obtained and executed at his home. When arrested and informed of his right to counsel, he requested to speak with a lawyer. However, the police placed him in a cell and delayed contacting his lawyer for six hours while they applied for, obtained, and executed a search warrant.
[141] The Court found that it was a routine practice for the police to postpone the implementation of the right to counsel for an indefinite period when executing warrants to search premises for drugs believed to be connected to the accused. The decision to delay access to counsel occurred without the officers considering the specific circumstances of the case. During the delay, the accused was not informed of the reasons for the restriction on accessing counsel or when he would be allowed to speak with his counsel. See R. v. Rover, 2018 ONCA 745and R. v. Hamidu, [2023] O.J. No. 5536 at para. 134.
[142] The Court in Rover clarified that constitutional breaches resulting from systemic or institutional police practices make police conduct more serious for the purposes of section 24(2). See Rover, para. 40. While I am unaware of other instances in the Region of Peel where deaf and hearing-impaired detainees have been consistently denied access to counsel, the police's lack of access to technology that assists individuals with disabilities negatively affects the administration of justice. This holds true even if many of these breaches never come to light in a criminal court. See Grant, at para. 75; Rover, at para. 40; R. v. Harrison, 2009 SCC 34; R. v. Jones, 2013 BCCA 345, 298 C.C.C. (3d) 343, at para. 46; and R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 67.
[143] The breach identified in this case cannot be attributed to any bad faith on the part of Officer Lancia, who conducted himself in a professional manner towards the Applicant. It is essential not to single out or assign blame to Officer Lancia; instead, the Peel Police Service, as an institution, must assume responsibility. The conduct of the state that infringes upon the Charter in this instance must be regarded as highly serious. The denial of a detainee's access to legal counsel due to the state's failure to accommodate their hearing disability over time reflects a systemic issue and significantly undermines the integrity of the administration of justice.
[144] Overall, I find the first branch favours exclusion.
The Impact of the Charter Breach:
[145] The issue of the impact of the breach on the Charter-protected interests of the Applicant raises issues that attenuate the seriousness of the breach.
[146] At no point did any police officer seek to elicit incriminating statements from the Applicant, thereby upholding his right against self-incrimination. Officer Lancia explicitly stated in his testimony that, due to the Applicant's challenges in comprehending his rights to counsel and the circumstances presented, he made a deliberate decision to postpone the interview. Furthermore, he provided cautions to the Applicant on two occasions: once in the hallway of the apartment building and subsequently in the holding cell. It is important to recognize that section 10(b) safeguards interests that extend beyond the principle of protection against self-incrimination. See R. v. Whittaker, [2024] O.J. No. 1534 at para. 50.
[147] The delay in obtaining legal counsel was reasonable given the circumstances and largely stemmed from the response of Duty Counsel to the police's request for assistance. However, after the Applicant was unable to communicate effectively with Duty Counsel, he was removed from the interview room and placed in a holding cell without any indication of when he might be able to consult with counsel, aside from his mother contacting counsel. In my assessment, the significant psychological pressure placed on the Applicant—due to his disability and lack of understanding—was exacerbated by his approximately 11-hour detention without a clear explanation or access to legal counsel. This situation is an important factor to consider when evaluating the harm to the Applicant's rights protected by the Charter.
[148] The Applicant was eventually taken to bail court without having the opportunity to exercise his right to counsel. As a result, he was deprived of the potential benefits of receiving guidance from counsel regarding the court proceedings and the options available for securing his release. See Whittaker, at para. 51. This situation likely increased his worry and anxiety, which were clearly evident in the video and audio recording of his interaction with Officer Lancia in the interrogation room.
[149] However, in Rover, Justice Doherty outlined at para. 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.
[150] As noted in Rover, supra, the right to counsel is a lifeline for detained persons. It is essential in providing support and advice on several issues, such as the right against self-incrimination, how long detention may last, and what can be done to regain one's liberty (see R. v. Noel, 2019 ONCA 860, [2019] O.J. No. 5612, at paras. 25-26).
[151] The doctrine of discoverability is an important factor under the second branch and can, in some cases, mitigate the impact of any breach of section 10(b). Where the evidence was independently discoverable, the impact of the Charter breach is lessened.
[152] Recently, in R. v. Hamouth, 2023 ONCA 518, the defence sought to exclude a gun seized during the execution of a search warrant. The gun was seized prior to serious s. 10(b) violations occurring. Despite the serious nature of the s. 10(b) breaches, Fairburn A.C.J., writing for the Ontario Court of Appeal, upheld the trial judge's decision to admit the gun. In doing so, Justice Fairburn confirmed that the lack of a causal connection is a well-established and proper factor for consideration in assessing the impact of a breach and one that may mitigate the impact of the breach on an individual's Charter-protected interests, weighing against exclusion (at paras. 50-58).
[153] In this case, a firearm, ammunition, and drugs were discovered before any breach occurred. The finding of the firearm, ammunition and drugs was completely unrelated to the section 10(b) breach. The evidence was obtained through a legally valid search warrant and was in police custody prior to the breach. The gun and drugs would have been found regardless of any violation of the Charter.
[154] However, section 10(b) is designed to assist detainees regain their liberty and protect against the risk of involuntary self-incrimination. There is no evidence that the police purposely delayed access to counsel or attempted to elicit self-incriminating statements from the Applicant during this delay. Nonetheless, when the Applicant faced difficulties accessing counsel due to a disability, instead of providing assistance, the police placed him in a cell. While this impact was certainly less significant than it would have been if there had been a direct connection between the breach and the evidence obtained, it was nevertheless significant. See Rover, para. 47. For this reason, I find that the section 10(b) violation had a significant impact on the Applicant’s Charter-protected interests, and this second line of inquiry favours the exclusion of the evidence.
Society's Interest in the Adjudication of the Case on its Merits
[155] The third inquiry under the Grant analysis asks: "whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion."
[156] The reliability of the evidence, its importance to the Crown's case, and the seriousness of the offence are all relevant considerations. When the evidence is both reliable and crucial to the Crown's case, the pull towards inclusion is especially strong. (See Grant, supra, at paras. 79-83, R. v. Harrison, at paras. 33-34.)
[157] The firearm, ammunition and drugs are reliable evidence which is essential to the Crown's case - without them, this prosecution fails. Furthermore, there is a high interest in the prosecution of gun and drug-related offences on their merits.
[158] Nonetheless, in R. v. McGuffie, 2016 ONCA 365 at para. 63, the Court of Appeal held that "if the first and second inquires make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility."
Conclusion: Admission or Exclusion of the Evidence
[159] The first inquiry strongly favours the exclusion of the evidence. The long-term repute of the administration of justice requires the exclusion of evidence, given the clear neglect by Peel Police of a disabled person’s right to access counsel in this case.
[160] The second inquiry also points to the exclusion of evidence, though not as significantly as the first inquiry. Despite a lack of causal connection between the breach and the lawful seizure of a firearm, ammunition, and drugs, I cannot ignore the seriousness of the Charter-infringing police conduct and its impact on the Applicant’s Charter-protected rights.
[161] The third inquiry does not tip the balance in favour of admissibility in the circumstances of this case; it is overborne by the other considerations already emphasized.
[162] In my view, regarding all the circumstances, the admission of the evidence would bring the administration of justice into disrepute. Therefore, the evidence will be excluded.
Released: December 12, 2024
Signed: Justice P.T. O’Marra