SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 14-4679

DATE: 2015-07-23

RE: Her Majesty the Queen, Respondent

and

James Donnelly, Applicant

BEFORE: The Honourable Mr. Justice Robert B. Reid

COUNSEL:
J. Stephenson and S. Weinstein, Counsel, for the Applicant

C. Bundy and N. Gilks, Counsel, for the Respondent

HEARD: May 20, 2015

DECISION ON CHARTER APPLICATION

[1] The applicant, James Donnelly, seeks an order excluding evidence seized in a warrantless search. He alleges a breach of his guaranteed rights under sections 8, 10(a) and 10(b) of the Charter of Rights and Freedoms. Mr. Donnelly says that if the evidence is admitted at trial, it would bring the administration of justice into disrepute.

[2] The issues are:

a. Was there an illegal search which violated Mr. Donnelly’s right to be secure against unreasonable search or seizure on October 6, 2011?

b. Was Mr. Donnelly denied his right on detention and search to be informed promptly of the reasons therefor?

c. Was Mr. Donnelly denied his right to retain and instruct counsel without delay?

d. If there were one or more Charter breaches, should the seized evidence be excluded from the trial?

Background facts:

[3] The police undertook an extensive investigation with the object of gathering evidence to prosecute key members of a drug importation and trafficking operation. During that investigation, several Part VI wiretap authorizations were granted. The authorization dated September 21, 2011 permitted the interception of private communications of 33 people including Mr. Donnelly. That authorization also included a general warrant for the searching of vehicles “used by or resorted to” by Mr. Donnelly under certain conditions.

[4] As result of information received through the wiretaps, the police believed that Mr. Donnelly was in possession of cocaine on October 6, 2011. A traffic stop was performed. Mr. Donnelly was a passenger in the vehicle. He was detained, searched and found to be in possession of 9 ounces of cocaine and $1360 in cash. As result of the search, he was arrested for possession for the purpose of trafficking in cocaine and advised of his right to counsel.

[5] At the traffic stop, the police told Mr. Donnelly the detention and search was being undertaken because his driver’s licence had been suspended. He was not advised that the police had reasonable and probable grounds to believe that he was in possession of drugs.

[6] Mr. Donnelly’s right to counsel was given promptly after his arrest. Following his transportation to the police station and after a further period of detention, he requested the opportunity to contact counsel. Rather than facilitate that request, the police released Mr. Donnelly on a Promise to Appear.

(a) Was there an illegal search?

[7] The arresting officer had no direct knowledge nor had he made any observations to provide him with reasonable and probable grounds to believe that Mr. Donnelly was in possession of drugs. However, the arresting officer was instructed by a supervising officer who was receiving real-time information from the wiretaps about Mr. Donnelly’s activities.

[8] When affecting an arrest, a police officer is entitled to rely on another officer’s reasonable and probable grounds.

[9] The general warrant contained in the September 21, 2011 authorization permitted the police to stop any vehicle used by, or resorted to by Mr. Donnelly. According to the warrant, a vehicle stop was only allowed for “legitimate violations of Provincial or Federal statutes”. It went on to state: “The driver of the vehicle will be informed of the violation and the reason for the stop.” Counsel for the applicant notes that although the general warrant authorized the search of the vehicle, it did not authorize a search of Mr. Donnelly’s person.

[10] Just prior to pulling the vehicle over, the police observed it make an improper lane change and therefore they were entitled to perform the traffic stop.

[11] Although Mr. Donnelly takes the position that the traffic stop was a ruse, it appears to have been based on legitimate observations of the vehicle maneuver which constituted a Highway Traffic Act[^1] offence.

[12] Mr. Donnelly also alleges that the detention and subsequent search of his person was based on a ruse: he was informed that the detention and search occurred because of his status as a suspended driver. Since he was not driving the vehicle, his driver’s licence should not have been an issue.

[13] The Crown responds that the police did not want to disclose the existence of the wiretaps and therefore chose not to tell Mr. Donnelly the true reasonable and probable grounds for detention and search that they possessed, namely his suspected possession of drugs.

[14] I will say more about the false reason given for the detention and search in the discussion of the alleged breach of Mr. Donnelly’s section 10(a) rights.

[15] The Crown did not deny that Mr. Donnelly had a reasonable expectation of privacy as to items seized from his clothing nor was it submitted that the search was justified under the common law power of the police to search incident to investigative detention. The defence did not allege that the search was carried out in an unreasonable manner.

[16] If the Crown establishes on a balance of probabilities that there were reasonable and probable grounds to believe that Mr. Donnelly was in possession of illegal drugs based on the information possessed by the police, then he was subject to detention and search on that basis. There would be no section 8 breach. The power to detain and search was independent of the authority to search the vehicle set out in the general warrant. Obviously once the drugs were found, it was reasonable to make an arrest.

[17] Counsel for Mr. Donnelly submits that reasonable and probable grounds did not exist. At most, the police may have had a suspicion that Mr. Donnelly was in possession of drugs. Counsel notes that a surveillance team observed Mr. Donnelly getting into a vehicle at 5:52 PM on October 6. By 6:00 PM, the police had lost contact with the vehicle and it was not seen again until 7:38 PM. Mr. Donnelly was not identified entering the premises where an alleged drug swap was to take place. Rather, the surveillance report identified “one male” from the car going inside the building at 7:47 PM and coming back out at 7:50 PM. The vehicle proceeded to a Tim Horton’s restaurant and the notes from the surveillance team indicate that Mr. Donnelly was observed coming out of the restaurant talking on his cell phone at about 7:54 PM. Counsel submits that the police had no idea what had happened to the vehicle and its occupants for about one hour and 38 minutes between 6:00 PM and 7:38 PM. They did not know, from 6:00 PM until about 7:54 PM, whether Mr. Donnelly was even in the vehicle. Therefore, counsel submits that the supervising officer made an unfounded assumption that Mr. Donnelly had been connected with a drug transaction but without any evidence of his involvement. As such the police did not have reasonable and probable grounds to detain and search Mr. Donnelly.

[18] The Crown responds that the supervising officer had access to wiretap information before, during and after the time the visual surveillance was interrupted. That information included the expected time of the drug swap transaction (7:30 PM to 8:00 PM) and the location (144 Diiorio Circle, the residence of co-accused Danyal Ikram), Mr. Donnelly’s agreement to go there, an update from Mr. Donnelly that he would arrive at the residence at about 7:35 PM, and then a further update at 7:43 PM that Mr. Donnelly was pulling up at the place in “two seconds”. According to the Crown, it was a logical assumption that the unidentified individual who left the car and entered the building at 7:47 PM was in fact Mr. Donnelly. Based on the intercepted communications, there was no indication of a drug swap during the time that visual surveillance was lost. There was every reason to believe that the transaction was to occur when and where the police expected. According to the evidence at the preliminary hearing, the reason that surveillance team was not able to identify Mr. Donnelly at the target residence was because the surroundings were dark.

[19] There is no dispute that the vehicle was under surveillance from 7:38 PM until the traffic stop and search at about 8:00 PM.

[20] I am satisfied that the supervising officer had reasonable and probable grounds to direct that Mr. Donnelly be detained and searched because of his likely possession of drugs. The grounds were based on the combination of the wiretap information and the observations of the surveillance team. The loss of contact by the surveillance team and the lack of direct identification of Mr. Donnelly at the target residence did not reduce the grounds to a mere suspicion. Therefore the search was not illegal.

(b) Was there a failure to inform as to the grounds for detention and search?

[21] Mr. Donnelly had a right under section 10(a) of the Charter to be informed promptly as to the grounds for his detention. In this case, he was advised following the search and discovery of drugs that he was being arrested for possession for the purpose of trafficking. However, he was not advised promptly upon his initial detention of the true reason for it, or of the true reason for the subsequent search. This was where the ruse of a suspended driver’s licence was used as an explanation.

[22] The Crown admits the breach of Mr. Donnelly’s 10(a) rights.

[23] The defence submits that the deception was lengthy and that it did not end until Crown disclosure was provided over a year later, after the original charges were dropped and the current charges laid.

[24] The Crown responds that the deception of Mr. Donnelly was for less than seven minutes in that it was from the time of the traffic stop until the search was completed and the arrest made. From that point, the arrest and continuing detention were clearly identified as based on possession of drugs for the purpose of trafficking.

[25] The police made their decision not to advise Mr. Donnelly of the true reason for his initial detention and search based on their desire to prevent disclosure of the wiretap. It was only after the investigation was concluded that Crown disclosure revealed the deception.

[26] I have no difficulty in agreeing with defence counsel and the Crown’s concession that Mr. Donnelly’s section 10(a) right to be informed promptly of the actual reason for his detention was violated. This was as a result of the deliberate and considered decision of the police to conceal the details of their drug importation and trafficking investigation.

[27] The police do not have the right to decide when the true reason for the detention is to be disclosed, given the mandate under the Charter to do so promptly. A subsequent arrest for which a reason is given does not obviate the need to disclose the basis for the initial detention and search.

(c) Was there a denial of the right to counsel?

(i) The informational component

[28] About five minutes after the traffic stop, Mr. Donnelly was asked to step out of the car and submit to a search. He was detained. About two minutes later, the search was complete and Mr. Donnelly was arrested. Only then was he apprised of his right to counsel.

[29] In R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140 at paragraph 43, the Supreme Court of Canada endorsed its earlier decision in R. v. Therens 1985 29 (SCC), [1985] 1 S.C.R. 613 as to the purpose of s. 10, which is:

to ensure that in certain situations a person is made aware of the right to counsel and is permitted to retain and instruct counsel without delay. The situations specified by s. 10 – arrest and detention – are obviously not the only ones in which a person may reasonably require the assistance of counsel, but they are situations in which the restraint of liberty might otherwise effectively prevent access to counsel or induce a person to assume that he or she is unable to retain and instruct counsel.

[30] Although it is clear that the police are not required to interrupt or forestall a search to allow a person to establish contact with counsel, the failure of the police to advise Mr. Donnelly of his right to counsel upon detention constituted a breach of his s. 10(b) rights.

(ii) The substantive component

[31] The time from his arrest to his being processed into custody at the police station was about 38 minutes. Mr. Donnelly was secured in a cell. About 22 minutes later, the arresting officer returned to the cell, had Mr. Donnelly sign a Promise to Appear and released him. Mr. Donnelly requested an opportunity to speak to counsel just before his release. The arresting officer’s evidence at the preliminary inquiry was that Mr. Donnelly wanted to speak to his lawyer so she could arrange bail. The officer concluded that contacting counsel was unnecessary since Mr. Donnelly was being released in any event and therefore did not provide him with an opportunity to call.

[32] The right to retain and instruct consult counsel under section 10(b) is fundamentally important. That right needs to be zealously protected by courts and whenever it is infringed, it is by definition a serious matter.

[33] Logically, once a person requests the opportunity to contact counsel, it is a denial of that person’s right under section 10(b) not to allow the person to do so absent any compelling reason why such contact could not be facilitated. As a general rule, it is inappropriate to allow police the discretion to decide whether and in what circumstances to allow a person to contact counsel.

[34] In this case, Mr. Donnelly’s Charter right to retain and instruct counsel without delay was breached when the police failed to accede to his request.

[35] As I have noted, it is not appropriate for the police to decide when and if to allow a detained person to contact counsel, as long as it is practically possible to do so. Typically, that opportunity is made available at the police station once a detained person has been processed and before any interrogation takes place.

[36] In this case, there was a clear request to consult counsel which was denied in favour of Mr. Donnelly’s release by Promise to Appear. The added context according to the evidence at the preliminary hearing is that Mr. Donnelly expressed his wish to speak to counsel for the purpose of arranging bail. From the police point of view, that consultation was unnecessary since a decision to release had already been made. The refusal to provide an opportunity to contact counsel was not calculated to provide a benefit to the police in their investigation.

[37] Despite the conclusion of the police that in the circumstances, the consultation with counsel was not necessary, there was a Charter breach, in that Mr. Donnelly was denied the opportunity to exercise a fundamental guaranteed right.

(d) Should the seized evidence be excluded from the trial?

[38] Based on my conclusions noted above, there was a breach of Mr. Donnelly’s section 10(a) and 10(b) rights guaranteed by the Charter of Rights and Freedoms. He has asked for a specific remedy flowing from section 24(1): the exclusion of evidence under section 24(2). The question is whether Mr. Donnelly has established that evidence obtained through a breach of his rights should be excluded from trial.

[39] Section 24(2) of the Charter provides that:

when evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [Emphasis added]

[40] The Supreme Court of Canada in R. v. Grant, 2009 SCC 32 at paragraph 71 mandated a method of analysis to be used in an exclusion application under section 24(2):

A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[41] Since the s. 10(a) breach is related to the s. 10(b) breach, I consider it appropriate to consider the two together, using a Grant analysis to determine the application of s. 24(2).

(i) The section 10(a) breach:

[42] One of the main purposes for inquiring about the seriousness of state conduct that led to the breach is to preserve public confidence in the rule of law. The offending state conduct will fall along a continuum from trivial violations to willful or reckless disregard for Charter values. The public would be less concerned by violations at one end of the continuum but very concerned where the state conduct resulted in serious violations.

[43] The right to be advised promptly of the reasons for detention relates to the notion that one need not submit to detention by the police without explanation. Additionally, it is relevant to the related right to consult counsel.

[44] Although it was argued for Mr. Donnelly that the breach was of over one year in duration, the practical effect was that he was unaware of the reason for his detention for less than seven minutes. Charter rights do not exist in the abstract. When Mr. Donnelly was found in possession of drugs and arrested on that basis, the reason for his ongoing detention was clear.

[45] Despite the brief period of time during which Mr. Donnelly was not apprised of the true reason for his detention, the breach itself was deliberate: the police chose not to disclose the real reason in order to preserve the secrecy of their investigation. No evidence was led to show why that decision was justified. It was simply asserted as a rationale.

[46] The deliberate breach of Mr. Donnelly’s Charter right was not trivial. To condone deliberate Charter breaches may encourage more in the future. This concern engages the long-term, forward-looking and societal perspective mandated by the Supreme Court.

[47] The serious nature of the breach militates against the admission of the evidence seized in the personal search of Mr. Donnelly.

[48] As to the impact of the s. 10(a) breach on Mr. Donnelly, the nature of the breach in the context that I have described is such that it had little practical effect. Had he been initially advised of the true reason for his detention, the search would have continued and the evidence acquired.

[49] As a result, I find that as to that aspect of the Grant analysis, the impact of the breach was minimal on Mr. Donnelly. That conclusion supports the admission of the seized evidence.

[50] The first two parts of the Grant analysis focus on the societal interest in preserving Charter protections and the effect of the breach on the individual. The third looks at the issue from a different direction, namely the need to ensure public confidence in the fair prosecution of offenders in accordance with the evidence. In the Charter context, one must consider the overall reputation of the justice system, viewed in the long-term. To quote from Grant at paragraph 81, “the exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.”

[51] Here, the physical evidence was in existence rather than derived from the breach, as would be the case for example with a statement given in the absence of the advice of counsel.

[52] Clearly there is a societal interest in bringing a proper case to trial on the merits based on reliable evidence which must be balanced against the protected Charter interests.

(ii) The section 10(b) breach:

[53] Analyzing the seriousness of the state conduct in failing to promptly advise Mr. Donnelly of his right to counsel upon detention engages the same considerations set out above in the 10(a) discussion:

• Public confidence in the rule of law is at risk;

• The breach can be placed on a continuum of trivial to serious;

• The delay in advising of the right to counsel was quite brief;

• No evidence was led as to why the right to counsel was not given immediately.

[54] The duty to advise a detained person of the right to retain and instruct counsel is fundamental. To breach that right is serious, absent extenuating circumstances that do not exist here. That militates against the admission of the evidence seized in the personal search of Mr. Donnelly.

[55] As to the second part of the Grant analysis, there is little practical effect on Mr. Donnelly as a result of the breach of his rights. Even if he had been advised immediately of his right to counsel, the search would have continued and the evidence acquired. As I have noted, there is no requirement to forestall a search pending contact with counsel, even if he had chosen to exercise that right. That conclusion favours the admission of the evidence.

[56] Finally, the physical evidence was in existence rather than brought about by virtue of the breach. I have already noted that there is a societal interest in bringing a proper case to trial on the merits based on reliable evidence which must be balanced against the protected Charter interests.

[57] It is unnecessary to perform a Grant analysis as regards the section 10(b) breach arising from the failure to allow the exercise of the right to counsel, because there was no evidence obtained as a result of that breach. No statement was taken, and no physical evidence was collected subsequent to the initial search when the drugs and currency were found. As a result, no order for exclusion of evidence under section 24(2) is appropriate flowing from that breach.

Conclusion:

[58] The task is for the court to assess and balance the effect of admitting or excluding the evidence on society’s confidence in the justice system.

[59] In this case, I am required to consider objectively all the circumstances surrounding the breaches and view them, as the Supreme Court described it, from a “long-term, forward-looking and societal perspective.” Would a reasonable person, informed of all the relevant circumstances and the values underlying the Charter conclude that the admission of the evidence would bring the administration of justice into disrepute?

[60] In this case, and for the reasons that I have noted above, I find that there have been serious breaches of Mr. Donnelly’s Charter rights. In the circumstances, however, including the brief duration of the breaches, this is not a situation where the first branch of the Grant analysis outweighs the others so as to require the exclusion of the evidence.

[61] I have found that the impact of the breaches on Mr. Donnelly’s Charter-protected interests has been modest in the particular circumstances of this case. I am satisfied that the public interest would not be offended by admission of the evidence under the second branch of the Grant test.

[62] Finally, I consider that the use of reliable evidence secured notwithstanding the section 10 breaches would serve society’s interest in having the case adjudicated on its merits.

[63] On balance, I conclude that it has not been established that admission of the evidence would bring the administration of justice into disrepute and therefore this application to have the evidence excluded is dismissed.

Reid J.

Date: July 23, 2015

[^1]: R.S.O. 1990, c. H.8