R. v. Manoharan, 2016 ONSC 2655

CITATION: R. v. Manoharan, 2016 ONSC 2655 COURT FILE NO.: 1-642634 DATE: 2016/06/24

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen Respondent

– and –

Lindsy Manoharan Applicant

COUNSEL: H. Amarshi, for the Respondent C. Tarach, for the Applicant/Accused

HEARD: January 12, 14, 15, 16-22, 2016

RULING ON SECTIONS 8, 10(b) & 24(2) CHARTER APPLICATION

GARTON J.:

[1] The applicant, Ms. Manoharan, and the co-accused, Deepu Sawh, are charged with trafficking in crack cocaine to an undercover police officer on June 3, 2013 (Count 4 in the indictment). Ms. Manoharan is also charged with possession of cocaine for the purpose of trafficking on that same date (Count 5). Mr. Sawh is charged with trafficking to the undercover officer on three prior occasions: January 6, February 14, and March 11, 2013. The Crown alleges that Ms. Manoharan was Mr. Sawh’s cocaine supplier.

[2] Ms. Manoharan has brought this application pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms to exclude as evidence approximately three grams of crack cocaine, $240 in police buy-money, a digital scale, cell phone, and several documents that the police located in her car following her arrest on June 3. Ms. Manoharan alleges that the search of her vehicle violated her s. 8 Charter rights. She also alleges that her s. 10(b) Charter rights were breached.

[3] Following the submissions of counsel, I held that there was no violation of Ms. Manoharan’s s. 8 Charter rights. Although I found that Ms. Manoharan’s s. 10(b) rights were breached, I concluded that the evidence ought not to be excluded pursuant to the analysis under s. 24(2). I indicated to counsel that I would provide reasons for my ruling at a later date. These are those reasons.

OVERVIEW OF THE INVESTIGATION

[4] The investigation with respect to these charges came about after a confidential informant (CI) met with his/her handler, Detective Constable Ross (“Ross”) of the Toronto Police Service (“TPS”), on January 2, 2013. The CI provided information, including a cell phone number, for a crack cocaine dealer named “Dickie.” Later that day, Ross passed on this information to Detective Constable Clark (“Clark”) of the Toronto Drug Squad (“TDS”).

[5] On January 6, 2013, Clark instructed Police Constable Lapensee (“Lapensee”) to call the phone number. Lapensee made the call and succeeded in setting up a drug deal with the male who answered the phone. This male turned out to be Mr. Sawh. Acting in an undercover capacity, Lapensee bought a “ball hard” or crack cocaine from Mr. Sawh on that day and three further occasions over a five-month period. On each occasion, the officer used $250 in police buy-money to make the purchase.

[6] During police surveillance of the first three drug deals, Mr. Sawh was seen either getting in or out of a grey Honda Accord, licence plate number BEMC 543 (“the Honda”), or interacting with the driver. Ministry of Transportation records revealed that Ms. Manoharan and her mother were the registered owners of the vehicle, with an address of 301 Prudential Drive, Unit 408, Toronto.

[7] Lapensee arranged the fourth drug deal with Mr. Sawh on the afternoon of June 3, 2013. The police intended to arrest Mr. Sawh and Ms. Manoharan on that date immediately after the transaction.

[8] In anticipation of the take-down, Clark instructed Police Constable Tony Aiello (“Aiello”) to obtain search warrants for the Honda, Mr. Sawh’s residence at 51 Midholm Drive, Ms. Manoharan’s apartment on Prudential Drive, and her boyfriend’s address at 3770 St. Clair Avenue East.

[9] A Justice of the Peace granted the search warrants for the Honda and Mr. Sawh’s residence on June 3, 2013, at 7:51 p.m. He refused, however, to issue the warrants for Ms. Manoharan’s apartment and that of her boyfriend on the basis that there were insufficient grounds.

[10] Clark briefed the members of the team from 8:45 to 8:50 p.m. regarding the anticipated drug deal and take-down. The team consisted of the following officers:

• Detective Doug McCutheon (“McCutheon”), who was in charge of the investigation on June 3, 2013

• Police Constable Jeffrey Correia (“Correia”)

• Police Constable Aiello

• Police Constable Victoria Morse (“Morse”)

• Police Constable Daniel Zamparo (“Zamparo”)

[11] Zamparo testified that during the briefing, Clark indicated that search warrants had been granted for both the Honda and Mr. Sawh’s residence.

[12] Clark did not assign a specific officer to search the Honda, as that task would depend on which members of the team were available at the time of the take-down. As Aiello explained, given the dynamic nature of this kind of investigation, any of the crew members could have ended up conducting the search. As it happened, Morse searched the vehicle after it was stopped and Ms. Manoharan was arrested. According to Morse, a purse that she seized from the front seat of the car contained $240 of the police buy-money used in the June 3 drug deal, three grams of crack cocaine, a digital scale, and a cell phone.

[13] Ms. Manoharan’s evidence on the voir dire conflicted with Morse’s testimony in a number of respects, including the location of the purse in the car, and the location of the cell phone and police buy-money. She testified that the purse belonged to her mother. She had never seen the scales and knew nothing about the cocaine.

OVERVIEW OF THE ISSUES

The Section 8 Charter Application

[14] Although Morse attended the briefing prior to the take-down, she was, for some reason, unaware of the search warrant for the Honda. She knew, however, that Clark had ordered the vehicle to be seized as offence-related property. She testified that she conducted an inventory search of the car in accordance with TPS policy so that it could be towed from the scene to a police facility.

[15] Morse also testified that she believed she was entitled to search those areas of the car that were easily accessed by the driver pursuant to the common law doctrine of search incident to arrest. It was under that power that she seized and later searched the woman’s purse. She presumed that the purse belonged to Ms. Manoharan, as she was the only occupant of the vehicle when the police pulled it over.

[16] Counsel for Ms. Manoharan takes the position that because Morse was unaware of the search warrant, her search of the Honda and its contents, including the purse, was tantamount to a warrantless search.

[17] Defence counsel acknowledges that Morse could have lawfully searched the Honda as incident to Ms. Manoharan’s arrest and without a warrant. However, he submits that her evidence that she searched the vehicle – or at least the purse – as incident to arrest was not credible and that it should be rejected. It was submitted that Morse searched the purse on the same basis that she seized the other items in the car; namely, pursuant to TPS policy that the contents of any vehicle seized as offence-related property must be inventoried.

[18] Defence counsel relies on R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51, which held that not only the objective but also the subjective part of the test regarding search incident to arrest must be met, that is, the officer conducting the search must be satisfied that there is a valid purpose for the search incident to arrest before carrying out the search. Otherwise, the search cannot be said to have been authorized by the common law rule permitting search incident to arrest and therefore constitutes a violation of s. 8 of the Charter.

[19] The position of the Crown is that Morse’s lack of knowledge of the warrant did not affect the validity of the warrant or convert her search of the Honda into a warrantless search.

[20] Crown counsel further submits that even if the search of the Honda is considered to be warrantless, Morse’s search of the purse was lawful as it was conducted as a search incident to arrest. The Crown submits that Morse’s testimony that she searched the purse pursuant to that power was credible and reliable.

The Section 10(b) Charter Application

[21] In terms of the s. 10 (b) Charter application, Ms. Manoharan alleges that neither Correia, who arrested her, nor any other officer at the scene advised her of her rights to counsel upon her arrest. Correia testified that he gave Ms. Manoharan an abbreviated form of her s. 10(b) rights.

[22] Ms. Manoharan testified that during the two-and-a-quarter hours that she remained at the scene of the arrest – there was a lengthy delay in the arrival of a scout car to take her to 41 Division – she asked Aiello if she could speak to a lawyer. Aiello told her that she could contact counsel back at the police station. Aiello testified that Ms. Manoharan never asked to speak to a lawyer at the scene. He also testified that the police suspended Ms. Manoharan’s rights to counsel in any event until search warrants had been executed at her and her mother’s residence and that of her boyfriend, the rationale being the preservation of evidence and officer safety concerns.

[23] Ms. Manoharan testified that Aiello told her at the scene that drugs had been found in her car. This was before Morse had even entered the Honda. Aiello testified that he had no idea whether drugs had been found in the accused’s car.

[24] Ms. Manoharan alleges that a police officer at the scene, whom she could not identify, was rude and verbally abusive towards her. This officer demanded the password to her cell phone, which was in the Honda, and the key to her apartment. She did not comply with either of these requests.

[25] Ms. Manoharan testified that she asked Police Constable Brayman (“Brayman”), the officer who arrived to transport her to the station, if she could speak to a lawyer after he advised of her s. 10(b) rights. Brayman testified that Ms. Manoharan made no such request.

[26] Ms. Manoharan testified that while she was in an interview room at 41 Division, Morse, on one occasion, and the unidentified officer on another, entered the room and attempted to elicit incriminating statements from her. Morse denied ever going into the interview room where Ms. Manoharan was being held.

[27] Ms. Manoharan testified that she made a number of requests to various officers while she was at 41Division to speak to counsel. As far as she was aware, none of the officers responded to these requests. Zamparo testified that he called duty counsel on Ms. Manoharan’s behalf at 6:11 a.m. on June 4, 2013. However, Ms. Manoharan never spoke to duty counsel while she was at 41 Division and before she was taken to court that morning for a bail hearing.

[28] The credibility and reliability of Ms. Manoharan’s evidence and that of the police witnesses are obviously in issue. Also in issue are whether Correia’s abbreviated version of the accused’s rights to counsel satisfied the informational component of s. 10(b), and whether delaying Ms. Manoharan’s access to counsel constituted a violation of the implementational component of s. 10(b).

EVIDENCE

June 3, 2013: The fourth drug deal and the arrest of Mr. Sawh and Ms. Manoharan

[29] On June 3, 2013, Lapensee parked his vehicle across from 51 Midholm Drive at the direction of Mr. Sawh. Mr. Sawh approached the vehicle and spoke to the officer through the driver’s window. He told him, “We’re still good for the deal”, but that he had to wait for his supplier to arrive. Lapensee concluded from this statement that Mr. Sawh was not in possession of the crack cocaine at that time.

[30] While they were engaged in general conversation, Lapensee noticed that Mr. Sawh was looking behind his vehicle. When Lapensee looked in his rearview mirror, he saw a grey Honda pulling up behind him. It appeared to be the same vehicle he had seen during the drug deal with Mr. Sawh on February 14, 2013. The evidence of the surveillance officers indicates that it was, in fact, the same Honda that was on scene during the three earlier drug transactions.

[31] Lapensee gave Mr. Sawh $250 in police buy-money. Mr. Sawh told him that he would be right back. Mr. Sawh then walked over to the Honda and entered it on the passenger side. Less than two minutes later, he returned to Lapensee’s vehicle and gave him a torn piece of white plastic or a “tear” containing chunks of crack cocaine. The undercover officer thanked Mr. Sawh, told him that they would talk soon, and drove away.

[32] At 9:43 p.m., Aiello observed the undercover officer leave the scene. At the same time, Clark directed members of the team to arrest Mr. Sawh, and to stop the Honda and arrest the driver.

[33] At 9:45 p.m., the Honda was brought to a rolling stop or “boxed in” by three unmarked scout cars as it headed north on Kennedy Road. Morse was driving in front of the Honda, Zamparo was driving behind it, and Correia was beside it on the driver’s side. Morse gradually slowed down and came to a stop, which forced Ms. Manoharan to stop her vehicle.

Testimony of P.C. Correia

[34] Correia was the first officer to reach the driver’s door of the Honda. He opened it and announced, “Toronto Police.” He testified that all the officers at the scene were wearing vests with the word “POLICE” in white letters across the front.

[35] After ensuring that the Honda was in park, Correia told Ms. Manoharan that she was under arrest for trafficking in cocaine and ordered her out of the vehicle. He assisted her in getting out, handcuffed her to the rear, and walked her to the sidewalk. This entire process took only one or two minutes.

[36] Correia then gave Ms. Manoharan what he described as a “shortened” or “abbreviated” version of her rights to counsel. He could not recall the exact words that he used. His best recollection of what he told her was as follows:

You are under arrest for trafficking in cocaine. You will have an opportunity to speak to a lawyer or free duty counsel when you get to the station.

[37] Correia testified that when he asked Ms. Manoharan if she understood, she either replied “yes” or nodded her head. She appeared to be scared or in shock, which Correia viewed as a normal reaction in the circumstances.

[38] Correia had no note of having advised Ms. Manoharan of her rights to counsel. However, he testified that his notation “advised of arrest” indicated to him that he had, in fact, told her about her s. 10(b) rights, albeit in an abbreviated form. He testified that he is aware of his duty to advise a person whom he has arrested of their rights to counsel, that it is his practice to do so, and that he normally makes a specific entry to that effect in his notes. He explained that his failure to make such an entry in this case was simply an oversight.

[39] When asked why he did not read Ms. Manoharan her rights to counsel from the back of his memo book, Correia testified that he did not have his memo book with him that day. He explained that as a plainclothes officer, he was carrying only a loose-leaf notebook, which does not contain the standard rights to counsel or the primary and secondary cautions normally given to arrested persons.

[40] Correia testified that pursuant to general police practice, he anticipated that the uniformed officers called to the scene to transport Ms. Manoharan to 41 Division would read her the rights to counsel from the back of their memo book. A transportation officer normally reads those rights to accused persons after placing them in the scout car, where a camera may record the process.

[41] The procedure anticipated by Correia was followed in this case. However, as it turned out, the transportation officers, Police Constables Brayman and Bango, did not arrive on scene until 11:58 p.m., or almost two-and-a-quarter hours after Ms. Manoharan’s arrest. After placing Ms. Manoharan in his scout car at 12:05 a.m., Brayman read to her the rights to counsel, as well as the primary and secondary cautions.

[42] Correia testified that he believed that Officers Morse, Aiello or Zamparo may have been within earshot when he told Ms. Manoharan about her rights to counsel, but could not say whether or not they heard him.

[43] Correia testified that he also told Ms. Manoharan that a female officer would be conducting a pat-down search.

[44] At 9:48 p.m., or three minutes after arresting Ms. Manoharan, Correia left the scene in order to assist in the execution of the warrant at 51 Midholm Drive. As the designated central note taker that night, he was required to be present during the search.

[45] Before leaving, Correia turned Ms. Manoharan over to the custody of Morse and Aiello. He told one or other of them, possibly both, that he had advised Ms. Manoharan of the reason for her arrest and her rights to counsel, that she understood those rights, and that she needed to be searched.

[46] Correia denied the suggestion that he pulled Ms. Manoharan out of the car, forced her to the ground, never told her the reasons for her arrest, and never advised her of her rights to counsel.

[47] Correia could not recall where the keys to the Honda were when he left the scene. However, as far as he was concerned, the Honda was in the possession and control of the TPS at that time.

Testimony of P.C. Victoria Morse

[48] On January 6, 2013, Morse, as part of the surveillance team, observed Mr. Sawh exiting the front passenger seat of the Honda, and walking over to and entering the undercover officer’s car. According to the testimony of Lapensee, the drug transaction took place at that time: he gave Mr. Sawh $250 in exchange for three grams of crack cocaine. Mr. Sawh then returned to the Honda, where he spoke to the driver through the window.

[49] Morse was also part of the surveillance team on March 11, 2013, when she observed Mr. Sawh leaning into the passenger side of the undercover officer’s window. It was at that time, according to Lapensee, that Mr. Sawh handed him a quantity of crack cocaine in exchange for $250. About one-and-a-half hours later, Morse saw Mr. Sawh and a person whom she described as a brown female exit the Santa Rosa Restaurant at Kennedy and Highway 401, and get into the Honda.

[50] Although Morse conducted surveillance on June 3, 2013, she did not have any direct observations of the drug transaction that day. She testified that just prior to 9:44 p.m., Clark directed the team members over the radio to stop the Honda and arrest the driver.

[51] At 9:45 p.m., Morse, Correia and Zamparo boxed in the Honda as it proceeded north on Kennedy Road. By the time Morse got out of her car and reached the Honda, Correia had already arrested Ms. Manoharan, walked her to the sidewalk, and handcuffed her. Morse did not observe Correia throw Ms. Manoharan to the ground or be aggressive with her in any way.

[52] Morse and Aiello took custody of Ms. Manoharan from Correia. Morse testified that Correia did not advise her that Ms. Manoharan had been given her rights to counsel. In re-examination, she testified that it was possible that Correia told Aiello that he had given Ms. Manoharan her rights to counsel and that she simply did not hear it. Morse conducted a pat-down search of Ms. Manoharan as Correia was leaving.

[53] Morse described Kennedy Road as fairly busy: it is a major thoroughfare with two northbound and two southbound lanes. The rolling stop initially blocked both northbound lanes. After Ms. Manoharan’s arrest, the police vehicles were moved off the road. The Honda, however, continued to block one of the northbound lanes. The key was in the ignition but the car was not running. Concerned about a potential accident, Morse moved it off the road and parked it in the driveway of a nearby townhouse complex.

[54] Morse testified that upon entering the Honda, she observed a woman’s purse in the front passenger seat. The purse was open and its contents visible. Morse did not search the purse at that time. However, she was able to observe loose Canadian $20 bills at the bottom of the purse. Morse was aware that just minutes earlier, the undercover officer had used $250 in police buy-money to purchase cocaine from Mr. Sawh. She therefore considered the money in the purse to be potential evidence in the investigation. She decided to search the purse pursuant to the doctrine of search incident to arrest.

[55] Morse testified that even if she had not entered the Honda shortly after Ms. Manoharan’s arrest in order to move it off the road, she still intended at some point to enter and search it in those areas that could be easily accessed by the driver. Again, she believed her authority to conduct such a search was as a search incident to arrest.

[56] As stated, Morse did not initially search the purse. Instead, she locked the car and returned to where Aiello was standing with Ms. Manoharan as they waited for a scout car to take Ms. Manoharan to the police station. Neither Morse nor Aiello could perform that task as their vehicles were not equipped to transport prisoners. In addition, Morse testified that she could not leave the Honda unattended because a) it contained potential evidence, and b) she had been directed by Clark to seize it as offence-related property.

[57] In cross-examination, Morse agreed that at the preliminary hearing, she referred to the Honda as offence-related property but made no mention of conducting a search incident to arrest. Morse explained that at the preliminary hearing, she understood that the questions being asked of her related to the items she removed from the vehicle and placed in property bags as a result of the Honda being impounded as offence-related property. However, she maintained that she always viewed the purse containing the money as falling into a different category as she believed it belonged to the driver and could be seized as incident to Ms. Manoharan’s arrest.

[58] After waiting about ten minutes with Aiello for a scout car, Morse decided to deal with the Honda and its contents in preparation for the tow truck that she had called to the scene.

[59] Morse first seized the purse and placed it in the front passenger seat of her police vehicle.

[60] Morse also seized a receipt in Ms. Manoharan’s name from the Discount Tire and Auto Centre, and an ADP statement of earnings in the name of Sudesh Naraine, with an address of 3770 St. Claire Ave. East, Scarborough. These documents were located in the front passenger-side door. Morse also seized an insurance slip for the Honda in Ms. Manoharan’s name. This document was in the glove compartment.

[61] Morse placed the contents of the car, including miscellaneous items from the trunk and back seat, into large property bags and secured them in her vehicle. Ms. Manoharan was seated on a retaining wall during this process.

[62] Morse testified that the decision to seize the Honda as offence-related property was made before the Honda was stopped. Her own personal observations and the information she had received from other officers on the team led her to believe that the Honda was involved on January 6, March 11, and June 3, 2013, in the trafficking of cocaine.

[63] Morse explained that certain procedures must be followed by the TPS before a vehicle can be seized and towed as offence-related property. The Asset Forfeiture Section must be notified beforehand, and authorization to tow the vehicle to a TPS facility must be given. She presumed that these steps had been taken before she called for a tow truck – otherwise, permission to have the car towed would not have been granted.

[64] Morse explained that pursuant to TPS policy, all property must be removed from a vehicle before it is towed. Otherwise, the tow truck driver will refuse to complete the service. In addition, she was required to list or catalogue all the property that she removed from the car.

[65] Morse testified that if the Honda had not been seized as offence-related property, she would have had it towed to an impound lot, and notified the owner so that they could claim it. In that case, in accordance with TPS policy, she would still have had to conduct an inventory search and catalogue the contents of the car. The purpose of such a search is to account for any valuables in the vehicle. This protects the owner’s interest in such items, and also protects the police officer from any allegation of theft.

[66] The tow truck arrived at 11:58 p.m. At 12:15 a.m., on June 4, the Honda was towed from the scene, presumably to a TPS facility.

[67] At 11:58 p.m., Brayman and his escort arrived on scene to transport Ms. Manoharan to 41 Division.

[68] Morse testified that during her 15 years as a TPS officer, she has never experienced such a long wait for a scout car. The average wait is 5 to 30 minutes. Morse was concerned about the delay, and made at least four calls to the station over the course of two-and-a-quarter hours to inquire as to when the scout car would be arriving.

[69] Morse was occupied during part of the waiting time with removing the contents of the Honda. She did not have much conversation with Ms. Manoharan. She did not ask her about the ownership of the Honda or its contents. She did not ask for her consent to search it.

[70] While waiting for the scout car, Ms. Manoharan sat on the retaining wall and was speaking to Zamparo, who replaced Aiello at 11:15 p.m. Morse did not sit with them. Ms. Manoharan appeared to be calm. She never asked Morse to speak to a lawyer.

[71] At one point, Ms. Manoharan told Morse that she needed to use a washroom. Morse asked if she could wait until they got to the station. Ms. Manoharan indicated “yes.” Sometime later, when the scout car had still not arrived, Ms. Manoharan again requested to use a washroom. This time, she indicated that she could not wait. Morse decided that the only option in the circumstances was to let Ms. Manoharan relieve herself outside, using some nearby bushes for privacy. Morse accompanied Ms. Manoharan to an area near the outside wall of the townhouse complex. They were several feet from the sidewalk. Morse was satisfied that the area was sufficiently private. It was night-time, and there was no lighting on the bushes. Ms. Manoharan did not complain to her about a lack of privacy.

[72] After Ms. Manoharan had been turned over to Brayman, and the Honda had been towed from the scene, Morse returned to 41 Division, where she searched Ms. Manoharan’s purse. The purse contained $240 in Canadian $20 bills. Morse did not note the time that she searched the purse. She did note, however, that at 1:25 a.m. on June 4, she compared the serial numbers on the bills to the serial numbers shown in the photograph of the police buy-money. The numbers matched.

[73] Morse testified that the purse also contained a white Apple iPhone and a change purse. Inside the change purse were a grey Infiniti scales and a torn piece of clear plastic containing what later proved to be 3.12 grams of crack cocaine. Morse weighed the drug at 2:15 a.m.

[74] The purse was eventually returned to Ms. Manoharan’s mother.

[75] Morse testified that she had no contact with Ms. Manoharan at 41 Division. She did not see or speak to her. She was certain that she had no interaction with Ms. Manoharan at the station because she was occupied in the clerk’s office dealing with all the property she had seized. At no time did she enter any of the interview rooms.

[76] Morse was not involved in executing the search warrant at Ms. Manoharan’s residence at 301 Prudential Drive.

Testimony of P.C. Tony Aiello

Obtaining the search warrants

[77] Aiello, at the direction of Clark, obtained the search warrants for the Honda and 51 Midholm Drive at 7:51 p.m. on June 3. The Justice of the Peace, however, found that the grounds were insufficient to issue warrants for the residences on Prudential Drive and St. Clair Avenue East. Aiello re-applied for warrants to search those residences after Mr. Sawh and Ms. Manoharan were arrested and after receiving further information from Clark.

[78] The warrant for Prudential Drive, where Ms. Manoharan lived with her mother, and the warrant for St. Clair Avenue East, where Ms. Manoharan’s boyfriend, Sudesh Naraine, resided and where Ms. Manoharan was known by police to stay on occasion, were granted by telewarrant at 3:53 a.m. on June 4. The warrant for St. Clair Avenue East was executed half an hour later, at 4:25 a.m. Aiello was present for the search. He testified that there was some urgency in executing the warrants: until they were executed, the police did not intend to allow Ms. Manoharan to make any phone calls, including to a lawyer.

[79] Nothing was seized during the searches at 301 Prudential Drive and 3770 St. Clair Avenue East.

Taking custody of Ms. Manoharan

[80] Aiello was part of the surveillance team that covered the undercover drug purchase from Mr. Sawh on June 3. The deal took place in the vicinity of 51 Midholm Drive. Shortly thereafter, at 9:45 p.m., Aiello drove the short distance – about 700 metres – to Kennedy Road, where Ms. Manoharan’s Honda had already been stopped. Ms. Manoharan was on the side of the road and in the custody of Correia.

[81] Correia asked Aiello and Morse to take control of Ms. Manoharan pending the arrival of a scout car. He told Aiello that he had advised Ms. Manoharan of her rights to counsel and the reason for her arrest.

[82] Aiello remained with Ms. Manoharan from 9:43 p.m. to 11:15 p.m., when he turned her over to the custody of Zamparo.

[83] Aiello did not recall any interaction between Morse and Ms. Manoharan during the hour-and-a-half that he was at the scene. During that period, he and Ms. Manoharan engaged sporadically in small talk. He described Ms. Manoharan as subdued and co-operative. He had no difficulty in communicating with her. Their conversation was “fluid.” He did not advise her of her rights to counsel. Ms. Manoharan never asked to speak to a lawyer.

[84] Aiello denied discussing the Honda with Ms. Manoharan or telling her that drugs had been found in it. He did not know anything about drugs having been located in the vehicle. He did not seek to elicit any incriminating statements from Ms. Manoharan, and she did not say anything of an incriminating nature to him. Had she done so, he would have noted it.

[85] Aiello testified that if Ms. Manoharan had asked to speak to counsel, her request could not have been facilitated at the curbside in any event as it was not a secure environment. She had not been searched at that point, other than the pat-down search performed by Morse. Aiello explained that if Ms. Manoharan was allowed to use a cell phone to call a lawyer, he would have had to stand right beside her and would have overheard her conversation. Since Ms. Manoharan was in his custody, he could not have moved 15 or 20 feet away in order to give her privacy as she spoke with counsel.

[86] Aiello contrasted the above scenario with the procedure followed at the police station in terms of an accused’s access to counsel. During the booking process, the accused is asked various questions, including whether they understand their rights to counsel. After a Level 2 or Level 3 search has been conducted, an accused is placed in a room where he or she can converse in private on the telephone with counsel of their choice or duty counsel.

[87] Aiello understood that the police may delay an accused’s right to speak to counsel for a certain period of time when there are concerns about the preservation of evidence or officer safety. These concerns arise when, as in this case, an accused is arrested before a search warrant has been executed at an address with which the accused is closely associated. There is a concern that the accused, if permitted to use the telephone, may tip off a party at the target address. This may lead to the destruction of evidence. It also jeopardizes officer safety as the police rely on the element of surprise in order to gain quick control of a premise.

[88] Aiello also understood that even in the above circumstances, an accused’s right to counsel can only be delayed for a certain limited time period. That time frame cannot be “too long.” Otherwise, an accused’s s. 10(b) Charter rights may be violated.

[89] Aiello testified that based on the investigation in this case, all telephone calls to and from Ms. Manoharan were to be held in abeyance until the warrants were executed at the Prudential and St. Clair Avenue East residences. The police did not want to run the risk that Ms. Manoharan’s mother or boyfriend would learn of the warrants before they were executed.

[90] After leaving Ms. Manoharan in Zamparo’s custody at 11:15 p.m., Aiello returned to 41 Division to complete the information to obtain the warrants for 301 Prudential and 3770 St. Clair Avenue East. He had no further contact with Ms. Manoharan.

[91] Aiello testified that he obtained the warrant to search the Honda so that any drugs, money, or other evidence relating to the investigation, such as scales or packaging, could be seized. Based on the investigation, he believed that the Honda was offence-related property as it was being used to transport drugs to Mr. Sawh, and to transport police buy-money away from the scene after the drug deals were completed.

[92] Aiello explained the difference between an inventory search and a search of a vehicle pursuant to a warrant. The latter search, which was conducted on the Honda, would have been “meticulous” and carried out in a safe and well-lit environment. Officers conducting the search would have examined the vehicle very carefully for any unusual creases or deficiencies, such as cracks in the panels. If there were reason to believe drugs were stored in the panels, the panels would be removed.

[93] An inventory search, which is conducted when a car is being towed, is much more superficial as its purpose is simply to document all items in the vehicle. Making a list of the contents prevents later complaints by the owner that something went missing.

[94] Aiello did not search the Honda at the scene or after it was towed to a TPS facility.

Testimony of Det. Cst. Clark

[95] Prior to the arrests, Clark directed Aiello to obtain a search warrant for the Honda. He also advised members of the team that the car was to be seized