Court File and Parties

COURT FILE NO.: 11A-8440 DATE: May 06, 2016

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – ALEXANDRE LACROIX Applicant

Counsel: James E.J. Bocking, for the Crown Leo Alder, for the Applicant

HEARD: January 11-13, 2016

DECISION ON APPLICATION

JUSTICE MARC LABROSSE

Introduction

[1] The Applicant is charged with various offences related to the unlawful possession of a firearm, namely a handgun, contrary to sections 88(2), 91(3), 92(3), 95(2), and 96(2) of the Criminal Code, R.S.C., 1985, c. C-46, as well as with the possession of marijuana, contrary to section 4(4) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

[2] The Applicant has challenged the voluntariness of statements he made to the Ottawa Police Service (“OPS”) while he was detained in the rear of a police cruiser, shortly following his arrest. The Applicant also seeks a declaration that his section 9, 10(a) and 10(b) Charter rights were violated at the time of his arrest on February 10, 2011. The Applicant did not pursue the alleged breach of section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”) during the Application.

The Evidence

[3] In the course of an investigation into the trafficking of firearms referred to as Project Lancaster, the OPS intercepted certain communications between the Applicant and one of the targets of the investigation, Mr. Smith. They discussed potential transactions involving “half a Gretzky” and a “retired Michael Jordan”. These references were deemed by the OPS to refer to a 9 mm handgun and a 45 mm handgun.

[4] On February 9, 2011, the OPS obtained a search warrant for the premises at 97 Rita Avenue in the City of Ottawa, where the Applicant resided with his girlfriend and a child. The OPS arranged for the execution of the search warrant to take place on February 10, 2011. Justice Warkentin previously upheld the validity of the search warrant in R. v. Lacroix, 2015 ONSC 6258.

[5] Prior to the OPS Tactical Unit entering the premises at 97 Rita Avenue, the Applicant was seen leaving the premises in a vehicle and was followed by members of the OPS Tactical Unit who were assisted by members of the OPS Direct Action Response Team (“DART”). The Tactical Unit proceeded with a traffic stop of the Applicant along Maitland Ave. in the City of Ottawa. Given the risk that the Applicant may have a handgun in his possession, the OPS went ahead with a high risk takedown. Detective Sean Kay testified that he participated in the high risk takedown with his gun drawn and that he was assisted by members of DART.

[6] When the Applicant’s vehicle was stopped, Detective Kay testified that he informed the Applicant that he was under arrest for firearms related offences (although he could not recall the exact words used) and handed the Applicant over to the DART unit. He could not recall if he handcuffed the Applicant, but confirmed that it was left to DART to deal with the formalities of the arrest including the reading of cautions and detaining the Applicant in the rear of a police cruiser.

[7] Detective Kay testified as to his involvement dealing with the Applicant’s child, who was in the rear seat of the Applicant’s vehicle. He indicated that he obtained a cell phone number for the child’s mother, Sabrina Adatia, from the Applicant and made arrangements to have her pick up the child, along with the Applicant’s vehicle from a nearby church parking lot.

[8] Constable Marie-Josée Seguin of the OPS testified as the member DART who arrested and searched the Applicant, handcuffed him and placed him in the rear of her cruiser. She believed that Constable Walrond was the person who cared for the Applicant’s child. Neither Detective Kay nor Constable Seguin could recall who gave the direction to arrest the Applicant.

[9] Constable Seguin testified that she arrested the Applicant and advised him that he was being arrested for unlawful possession of a firearm. He was also told that a search warrant was being executed at 97 Rita Avenue. Constable Seguin testified that the Applicant appeared to understand the nature of the arrest and that he stated that he wanted to speak to a lawyer. The Applicant was searched and found to be in possession of $2,205 in cash and a small pocket knife.

[10] According to Constable Seguin, the Applicant was placed in the rear of her cruiser and read the primary and secondary cautions along with the caution pursuant to section 524 of the Criminal Code as set out in Exhibit 3. She also testified that she did not question the Applicant on any matter relating to his arrest as she had limited knowledge of the investigation.

[11] Constable Seguin testified to the following chronology: a. 14:00: the Applicant is subject to a high risk takedown traffic stop along Maitland Ave; b. 14:01: Constable Seguin was instructed to arrest the Applicant; c. 14:01-14:11: the Applicant is searched by Constable Seguin and the cash found in the Applicant’s possession is counted; d. 14:12: the Applicant is placed in the rear of the police cruiser; e. 14:13: the Applicant was given the primary and secondary cautions; f. 14:14: the Applicant was given his section 524 of the Criminal Code caution; g. 14:15: Constable Seguin begins to leave to go to the cellblock with the Applicant; h. 14:25: Constable Seguin arrived at the central cellblock with the Applicant; i. 14:32: The MDT device in Constable Seguin’s cruiser was used to search information about the Applicant; j. 14:43: Constable Seguin made calls to the legal counsel requested by the Applicant and he was able to speak to counsel.

[12] At approximately 14:15, while leaving the scene of the arrest in her cruiser with the Applicant, Constable Seguin testified that the Applicant said words to the effect that: “suppose there was a gun in the house and I were to tell you where it was, would that alleviate my girlfriend getting charged and the cops not ripping my house apart?” (Utterance #1). At that point, Constable Seguin said that she called the lead investigator, Detective Chris Benson, on his cell phone and advised him of what the Applicant had said. She said that Detective Benson advised that the information would alleviate his girlfriend being potentially charged. Before this information could be relayed to the Applicant, Constable Seguin testified that the Applicant went on to say words to the effect that: “it’s in my drawer upstairs – in my bedroom, in the middle drawer. It’s brown. On the right side of the bed, underneath my white wife-beaters.” (Utterance #2). Constable Seguin testified that the information she obtained from Detective Benson was not shared with the Applicant, either before or after his utterances.

[13] On cross-examination, Constable Seguin testified as to her recording of the utterances made by the Applicant while in the back of the cruiser. She indicated she had recorded the second utterance verbatim on her MDT computer by typing the exact words on the screen and then transcribing those words into her notebook. She indicated that it was her practice to send herself the notes she typed when a person made an utterance, but according to the records of the MDT unit in her cruiser, she failed to do so this time. She said she failed to press “send”. Constable Seguin was not able to accurately testify to the sequence of events which led to the recording of the utterances and made assumptions based on the timing of her notes. She testified that while her Investigative Action Report indicates that Utterance #2 was written in quotations, this was an error and she did not have a note on the exact wording of the utterances, but the essence of the utterances were as reported in her notebook.

[14] Constable Seguin testified that she was aware of the Applicant’s request to speak to a lawyer. Detective Kay said that the circumstances were not favourable to give the Applicant a cell phone along a busy street and have him call a lawyer. Constable Seguin testified that she had not considered the practicability of allowing the Applicant to call a lawyer from the back of the police cruiser.

[15] Detective Chis Benson testified as to his involvement as lead investigator on the day the search warrant was executed. With respect to the utterances, Detective Benson confirmed that he spoke with Constable Seguin on the telephone when she reported Utterance #1 to him. During this telephone discussion, he could hear the Applicant speaking in the cruiser, but could not understand him. He confirmed that he did indicate to Constable Seguin that if the Applicant took ownership of the handgun, this would be noted and that his girlfriend would not be charged. Detective Benson’s notes as to his discussion with Constable Seguin were not in order in his notebook and were not recorded until 14:39, after the Tactical Unit had secured the premises at 97 Rita Avenue.

[16] Detective Benson confirmed that despite having the information about the location of the handgun from the Applicant, he did not share this information with the members of the Tactical Unit who executed the search warrant. He confirmed that Constable Henderson was the officer who found the handgun in the same location as described by the Applicant at some point after 14:39 and that the OPS also seized some marijuana found in the premises at 97 Rita Avenue.

Position of the Parties

The Crown

[17] The Crown submits that the two utterances were spontaneous and not elicited by police. The Crown evidence demonstrates that there was no offer made by the OPS to the Applicant. There was no quid pro quo as the quid, being any offer from Detective Benson, was never communicated to the Applicant. As such, these utterances are admissible.

[18] The Crown further submits that the OPS had reasonable and probable grounds to arrest the Applicant given the knowledge that they had from the intercepted communications and the fact that a search warrant had been issued. There was therefore no breach of the Applicant’s section 9 Charter rights.

[19] With respect to section 10(a) of the Charter, the evidence is that the Applicant was advised that he was being arrested for an offence related to the possession of a handgun. The Crown states that this was sufficient for the Applicant to know his jeopardy and the requirements of section 10(a) of the Charter have been met.

[20] When considering section 10(b) of the Charter, the challenges of providing the Applicant with a telephone to call a lawyer while he was handcuffed in the back of a police cruiser and giving him privacy while the search warrant was being executed at 97 Rita Street lead to the conclusion that it was reasonable to allow the Applicant to contact his counsel of choice from the police station. As the Applicant was not questioned during the intervening period, there was no breach of section 10(b) of the Charter.

[21] In the event that the Court concludes that there has been a breach of the Charter, the Crown submits that all the evidence should nonetheless be admissible under section 24(2) of the Charter. The Crown agreed that in cases of Charter breaches, utterances are presumptively almost always excluded. Having regard to the three branches of the test provided for in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 [Grant], the Crown argues that the police acted in good faith, that the impact of any Charter breach on Mr. Lacroix is not substantial, that it was his own conduct that had the greatest impact, and that the truth seeking function of the criminal trial process would be better served by the admission of the evidence of Mr. Lacroix’s statements, as it is reliable and is very important to the Crown’s case. The Crown also commented on the significant public interest in combatting gun violence. Accordingly, the Crown submits that the exclusion of the evidence would bring the administration of justice into disrepute.

The Applicant

[22] The Applicant submits that there were no reasonable and probable grounds for the arrest and as such, this was a breach of section 495 of the Criminal Code. As the arrest was unlawful, the detention of the Applicant represents a breach of section 9 of the Charter. Furthermore, the Applicant was deprived of his section 10(a) Charter rights, as he was never provided with proper reasons for his arrest. The Applicant states that the evidence is clear that the Applicant requested to speak to a lawyer while in the cruiser and this should have been done immediately in order to meet the requirements of section 10(b) of the Charter.

[23] The Applicant contends that the record of what transpired is flawed and does not represent credible evidence upon which this Court can rely. The failure of Constable Seguin to have properly recorded the utterances leaves us with no accurate record. Her evidence about typing the notes in the MDT and then not pressing “send” does not make any sense. In addition, the Applicant states that there are inconsistencies in the notes and reports of Detective Benson which remain unexplained.

[24] The Applicant states that rather than to proceed with the arrest of the Applicant, the OPS should have held him in investigative detention. There was no basis to proceed with an arrest.

[25] The Applicant relies on the delay in the timelines set out in the Crown evidence in support of his position that there was too much delay before the Applicant was able to consult with a lawyer.

[26] In the end, the Applicant states that the remedies to be provided for the various breaches are in the discretion of the Court. The Applicant agreed at the hearing of this matter that he was not seeking a stay of proceedings as a result of the alleged breaches. Rather, the Applicant seeks to have the evidence of the utterances and the handgun excluded.

Analysis - Voluntariness

[27] Detective Kay and Constable Seguin arrested the Applicant at approximately 14:00 on February 10, 2011. Whether one or the other officer carried out the arrest is of no consequence. Their evidence regarding the information given to the Applicant at the time of his arrest was consistent. The Applicant was aware that his arrest was related to the unlawful possession of a handgun.

[28] The evidence is unchallenged that the Applicant was provided with the requisite cautions within a reasonable time after his arrest. There were issues to be dealt with in having an officer look after the child in the back seat and in counting the money found in the Applicant’s possession. These were reasonable steps to be followed in the circumstances.

[29] I accept the evidence of Constable Seguin that the Applicant confirmed that he understood the various cautions and that he confirmed his desire to speak to a lawyer. I also accept the evidence of Constable Seguin that she did not take any further investigative steps pending the Applicant having the opportunity to consult with a lawyer.

[30] As to the distinction between Constable Kay or Constable Walrond taking care of the Applicant’s child, I accept the detailed evidence of Constable Kay. While Constable Seguin thought it was Constable Walrond, I find this inconsistency of no moment. Overall, I conclude that there are no overwhelming contradictions between the evidence of Detective Kay, Constable Seguin and Detective Benson.

[31] The evidence is that Utterance #1 was made from the back of the cruiser while Constable Seguin was starting to drive towards the police station. It was not elicited by her. The statement was noted by Constable Seguin and also by Detective Benson in their notes. While there are some inconsistencies in the evidence of Constable Seguin as to her use of quotations in her Investigative Action Report and as to her typing the exact words spoken by the Applicant into her MDT computer, I find that the evidence of Constable Seguin was corroborated by Detective Benson and is consistent in their respective notes. Given the absence of evidence to the contrary, I accept the Crown’s evidence on the two utterances and I conclude on the evidence before me that it was a one-way conversation from the Applicant to Constable Seguin.

[32] The Applicant has attempted to demonstrate that the notes of Constable Seguin and Detective Benson provide an inadequate record of the events. I disagree. While Detective Benson did not refer to the utterances in his reports, the information was included in his notes at 14:39 and in the circumstances, I find that the notes of Constable Seguin and Detective Benson provide a sufficient record of the events. Further, I find that it was reasonable that Constable Seguin was not able to record the utterances. They were made spontaneously and in the circumstances of being in the police cruiser, it would not be expected that any recording device would be readily available. It is well established that there is no absolute rule requiring the recording of statements: see R. v. Moore-McFarlane, [2001] O.J. No. 4646 at para. 64.

[33] The following factors are applicable to the assessment of whether a particular statement to a person in authority is voluntary: a. the use of inducements (threats or promises); b. circumstances of oppression; c. whether the accused possessed an operating mind at the time the statement was made; and d. the use of police trickery: see R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 [Oickle]. Each of these factors shall be considered individually.

[34] The onus rests on the Crown to prove that the statements given by the Applicant were voluntary beyond a reasonable doubt: see Oickle, at para. 15.

Inducements

[35] The evidence before the Court is that there were no inducements made to the Applicant. I accept the evidence that any inducement discussed by Constable Seguin and Detective Benson was not communicated to the Applicant. The fact that his girlfriend was allowed to come pick up the car and child is not a form of inducement that would impact the voluntariness of the utterances.

[36] In R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at para. 19, in considering the overarching concept of voluntariness the Court stated that “while a quid pro quo may establish the existence of a threat or promise, it is the strength of the alleged inducement that must be considered in the overall contextual inquiry into voluntariness”. The evidence before this Court is clear that there is no overall context which would suggest the existence of any threat or promise that would put in doubt the voluntariness of the utterances. Furthermore, there is no evidence to suggest that the will of the Applicant was overborn at any time.

[37] There was no quid pro quo on the evidentiary record before this Court that would in any way suggest that if the Applicant did not confess to the possession of the handgun, his girlfriend would be charged or his house would be torn apart. These factors, which formed part of the utterances, came solely from the Applicant.

Circumstances of Oppression

[38] The circumstances under which the Applicant was detained in the police cruiser do not support any suggestion that he was kept under inhumane conditions leading him to a confession purely to escape those conditions. Clearly, the factors which could have created an atmosphere of oppression do not exist in this case.

Operating Mind

[39] The applicable test for considering whether the Applicant possessed an operating mind is set out by Justice Sopinka at para. 46 of R. v. Whittle, [1994] 2 S.C.R. 914: The operating mind test, therefore, requires that the accused possess a limited degree of cognitive ability to understand what he or she is saying and to comprehend that the evidence may be used in proceedings against the accused. Indeed it would be hard to imagine what an operating mind is if it does not possess this limited amount of cognitive ability. In determining the requisite capacity to make an active choice, the relevant test is: did the accused possess an operating mind? It goes no further and no inquiry is necessary as to whether the accused is capable of making a good or wise choice or one that is in his or her interest.

[40] A review of the entire circumstances surrounding the Applicant’s arrest and detention in the police cruiser leads to the conclusion that the Applicant had an operating mind throughout the entirety of the proceedings. The evidence is conclusive due to the absence of any evidence to the contrary. The evidence of Constable Seguin is that the Applicant understood the cautions that were read to him, he took care to make arrangements for his child and through the utterances, the Applicant attempted to make a deal to protect his girlfriend and reduce the extent of the search of his residence. I am not satisfied on the evidence before me that the Applicant lacked the requisite operating mind at the time the utterances were made to Constable Seguin.

Police Trickery

[41] The final consideration in determining whether a confession is voluntary is police trickery, namely, whether the police resorted to trickery or deceit in order to obtain a statement. Unlike the other considerations, this inquiry is more concerned with maintaining the integrity of the criminal justice system than with reliability. The ultimate question is whether or not the trickery or deceit used by police would “shock the community”. Examples cited in Oickle include having a police officer pose as a Chaplain or a legal aid lawyer, or injecting truth serum into a diabetic person under the pretence that it was insulin.

[42] In the case before this Court, there is no evidence of any police trickery.

Conclusion on Voluntariness

[43] I am satisfied beyond a reasonable doubt that the two utterances made by the Applicant to Constable Seguin while in the back of the police cruiser were made voluntarily.

Analysis – Section 9 of the Charter

[44] There is no question that the Applicant was arrested by the police without a warrant. The issue is whether the warrantless arrest was a lawful one.

[45] Section 495 of the Criminal Code states: 495 (1) A peace officer may arrest without warrant (a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence; (b) a person whom he finds committing a criminal offence; or (c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.

[46] When considering the Applicant’s detention following his arrest, section 9 of the Charter provides that every person has the right not to be arbitrarily detained.

[47] The guiding principle under section 9 of the Charter is that an arresting police officer must subjectively have reasonable and probable grounds to make an arrest and justify a detention. In addition, those grounds must be objectively justifiable. In other words, a reasonable person placed in the position of the officer must be able to conclude that there were reasonable and probable grounds for the arrest. What is not required is anything more than reasonable and probable grounds, and in particular, the police are not required to have a prima facie case for conviction before they can make an arrest: see R. v. Storrey, [1990] 1 S.C.R. 241, at para. 17.

[48] The totality of the circumstances must be considered in examining whether there were reasonable and probable grounds for the arrest. Intuition or a good hunch on the part of the police is not enough. A lawful arrest cannot be based on speculation or a mere possibility: see R. v. Malapan, 2013 ABQB 706, [2014] A.W.L.D. 1393, at paras. 38-39.

[49] The Counsel for the Applicant states that when the Applicant was arrested along Maitland Ave. on February 10, 2011, the OPS did not have reasonable and probable grounds to arrest him and that there was a breach of section 495 of the Criminal Code and a resulting breach of section 9 of the Charter.

[50] Detective Kay testified as to his knowledge of the ongoing investigation that the communications intercepted by police had afforded reasonable and probable grounds for a Justice of the Peace to issue the search warrant. He was not aware of the content of the communications. Further, Detective Kay testified that if the Applicant had been in the 97 Rita Avenue residence during the execution of the search warrant, he would have been arrested but he may not have been charged if nothing was found.

[51] Constable Seguin indicated that she was part of the group of DART officers who participated in the high risk takedown along Maitland Ave. She indicated that she received the direction to arrest the Applicant but could not identify the source of that direction. She indicated that these situations happen very quickly and it is often simply the officer in proximity to the suspect who will handcuff the suspect and proceed with the arrest and cautions.

[52] When asked about the grounds for arrest, both Detective Kay and Constable Seguin relied upon the search warrant and the knowledge that there had been intercepted communications to formulate their reasonable and probable grounds. This leaves one to question how either of them was able to formulate the subjective belief that there were reasonable and probable grounds to arrest the Applicant.

[53] The OPS relied on the validly issued search warrant to justify the arrest. However, one must be mindful that a search warrant is simply an investigative tool used to acquire reasonable and probable grounds to arrest. By its nature, the search warrant is sought when the police do not believe that they have reasonable and probable grounds to arrest.

[54] The difference between the reasonable and probable grounds required to obtain a search warrant as opposed to an arrest warrant cannot be overlooked. The evidence of Detective Benson was that in executing a search warrant, one of the goals is to secure the residence and ensure officer safety. At times, residents will be asked to wait outside or, in certain circumstances, they may be detained pursuant to investigative detention. These options would have been available to the OPS in the execution of the search warrant at 97 Rita Avenue.

[55] When the Applicant left his residence prior to the execution of the search warrant, I am unable to see how the OPS had either the subjective or objective elements of reasonable and probable grounds for arrest. The OPS could have kept the Applicant under surveillance pending the outcome of the execution of the search warrant. This would have required surveillance for a very short period of time, possibly less than one hour. It could have also been available to the OPS to keep the Applicant under investigative detention pending the outcome of the search.

[56] However, to proceed immediately with the arrest of the Applicant was in my view premature and constitutes a breach of section 495 of the Criminal Code and also of section 9 of the Charter, which protects the Applicant from being arbitrarily detained.

Analysis – Section 10(a) of the Charter

[57] I accept the evidence of Detective Kay and Constable Seguin that they both informed the Applicant that he was being arrested for an offence related to the unlawful possession of a firearm. While Detective Kay indicated that he may have referred to the unlawful trafficking of firearms, the Applicant would have been aware of the nature of the arrest as being related to his involvement with unlawful firearms. Further, the Applicant was told that a search warrant was being executed on his residence.

[58] In assessing whether there has been a breach of section 10(a) of the Charter, the question is whether the police has informed the Applicant of the reason for his arrest, viewed reasonably in all the circumstances of the case, in a manner that is sufficient to permit him to make reasonable decisions when faced with the police investigative process: see R. v. Smith, [1991] 1 S.C.R. 714, at para. 28.

[59] I find that the Applicant needed only to know generally the jeopardy he faced, which was a charge related to the unlawful possession of a firearm. There was no difference if he was told that the arrest was for the “unlawful possession of a firearm” or the “unlawful trafficking of a firearm”. Either was sufficient to allow him to decide whether or not to consult with counsel. He was able to make such a decision and confirmed his desire to speak to a lawyer.

[60] In this case, I accept the evidence of Constable Seguin that the Applicant understood the charges he was facing. He understood them sufficiently to propose a deal whereby he would protect his girlfriend and avoid the potential for other criminal activity to be discovered during the search at 97 Rita Avenue. Further, he indicated his intention to speak to a lawyer. This is not a case where he declined the right to speak to a lawyer and the police proceeded to question him. I conclude that the information provided by both Detective Kay and Constable Seguin was sufficient to meet the requirements of section 10(a) of the Charter.

On the evidence, I find that there was no breach of the Applicant’s section 10(a) Charter rights.

Analysis – Section 10(b) of the Charter

[61] The purpose of section 10(b) of the Charter is to provide a detainee with an opportunity to obtain legal advice relevant to his legal situation.

[62] As stated in R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 21 [Taylor], the purpose of the section 10(b) right is to inform the detainee of his right to consult a lawyer, which will assist him in regaining his liberty and guard against the risk of involuntary self-incrimination. This ensures that the detainee will make a choice before speaking with the police investigators that is both free and informed.

[63] The Supreme Court of Canada specifies in Taylor that the duty to inform a detained person of his right to counsel arises “immediately” upon arrest or detention and that the duty to facilitate access to a lawyer arises immediately upon the detainee’s request to speak to counsel. This has been said to mean at the first reasonably available opportunity. Finally, where there is some delay in giving the right to counsel, one of the key considerations is if the police refrained from taking further investigative steps to elicit evidence: see Taylor, paras. 24-26.

[64] There are therefore two components to section 10(b). The first is the informational component which obliges police to advise a detained person of his or her right to counsel. The informational component mandates that certain specific information be provided to the detainee.

[65] I am satisfied on all of the evidence and accept the evidence of Constable Seguin that the informational component has been satisfied and that the Applicant was informed of his right to counsel upon his arrest.

[66] Flowing from the informational component, is the implementational component which creates obligations on both the police and detainee. The implementational component only arises when the detainee invokes his section 10(b) rights and is reasonably diligent in exercising them. When that happens, the police are obliged to provide a reasonable opportunity for the detainee to exercise his rights, and must refrain from eliciting evidence: see R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 27.

[67] In the case before the Court, the Applicant’s arrest took place along Maitland Ave. in the City of Ottawa. The evidence was that this is a busy street with a high level of traffic. The arrest took place just prior to the execution of the search warrant at 97 Rita Avenue. I accept that it would not have been reasonable to give the Applicant a cell phone in those circumstances and allow him to start making calls from the back of the police cruiser. Constable Seguin would have had to leave the car to give him privacy and she would not have been able to monitor to whom the calls were made at a time when the search warrant was about to be executed.

[68] I conclude that it was reasonable to have left the scene of the arrest at 14:14, within 14 minutes of the arrest, and to arrange for the Applicant to contact his lawyer of choice from the police station. While in some circumstances, such a delay may be deemed too long, I am of the view that there were exigent circumstances which required that access to counsel be given at the police station in a secure environment. In all the circumstances, the criteria under section 10(b) of the Charter of providing access to counsel “without delay” has been met.

[69] In all the circumstances before me, I find that the implementational component of section 10(b) of the Charter was also met.

Analysis - Section 24(2) of the Charter

[70] I have found that the Applicant’s rights under section 9 of the Charter have been breached by the actions of the OPS in arresting the Applicant without having reasonable and probable grounds to do so, contrary to section 495 of the Criminal Code.

[71] The Applicant agreed at the hearing of this matter that he was not seeking a stay of proceedings as a result of the alleged section 9 breach. Rather, the Applicant seeks to have the evidence of the utterances and the handgun excluded.

[72] Section 24(2) of the Charter provides: (2) Where, in proceedings under subsection (1), a court concludes that 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.

[73] The wording of section 24(2) provides that the evidence in question can only be excluded if it was obtained in a manner that infringed or denied the Applicant’s Charter rights, and even then, only if, in all of the circumstances, the admission of the evidence in the proceedings would bring the administration of justice into disrepute.

[74] In the present circumstances, the Applicant had a protected right against being arbitrarily detained. However, the evidence of the handgun was not obtained following a violation of the Applicant’s section 9 Charter rights. While it was later in time, there was no clear temporal or causal connection between the unlawful arrest and the eventual finding of the handgun. The search warrant was validly obtained and its execution did not depend on circumstances surrounding the arrest. When considering the utterances, the uncontradicted evidence of Detective Benson was that he did not communicate the information obtained from the Applicant’s utterances to the Tactical Unit that executed the search warrant and found the handgun: see R. v Manchulenko, 2013 ONCA 543, para. 71.

[75] At best, the Applicant’s arrest was premature, but it did not contribute to the finding of the handgun. In the circumstances, reasonable and probable grounds would have been present as soon as the search warrant was executed, being sometime after 14:39. There is therefore no connection between the arrest and the evidence of the handgun. I thereby conclude that the evidence of the handgun was not obtained in a manner that infringed the Applicant’s Charter rights as required by section 24(2) of the Charter.

[76] When considering the utterances, these were made after the section 9 breach. In making this analysis, I am mindful that presumptively, statements obtained following a Charter breach are often excluded. However, the motive to make the utterances would have been no different had the Applicant been in investigative detention either along Maitland Ave or at the residence. The motivation was to avoid having his girlfriend charged and to possibly avoid a search of 97 Rita Avenue, which eventually lead to the discovery of marijuana. While it cannot be said that there is no connection between the arrest and the utterances, the connection is indirect.

[77] The analysis then moves to whether the admission of the evidence would bring the administration of justice into disrepute. The steps in the analysis are set out in Grant, at para. 71: 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.

The Seriousness of the Charter-Infringing State Conduct

[78] The primary consideration under this first step of the inquiry is that the Court must dissociate itself from Charter violations of a serious nature in order to maintain the good repute of the justice system. The conduct must be considered on a continuum ranging from deliberate, severe, reckless or wilful to inadvertent or minor. The more deliberate or severe the conduct, the greater the likelihood that society will not tolerate such conduct: see Grant, at para. 74.

[79] I find that both Detective Kay and Constable Seguin felt that they could rely on the strength of the search warrant to arrest the Applicant. I believe they felt they were acting lawfully.

[80] The Applicant was detained in the police cruiser and taken to the police station to exercise his right to speak to a lawyer. I have already concluded that there was no attempt by Constable Seguin to elicit evidence from the Applicant. His utterances were completely voluntary. The decision to prematurely arrest the Applicant did not contribute to the finding of the handgun and it did not have an impact on the Applicant’s motivation to protect his girlfriend or avoid a search resulting in the discovery of marijuana. The impact of the section 9 breach is clearly minor, as it is only temporal in nature. It brought forward evidence sooner than if the search had been executed first, but did not change the outcome of finding the handgun or of the Applicant making the utterances, as I am of the view that the Applicant would have had the same motivation to make the utterances had he been in investigative detention.

[81] This leads me to conclude that the overall seriousness of the Charter-infringing conduct was minor.

The Impact of the Breach on the Charter-Protected Interests of the Accused

[82] The second inquiry to be made requires that the Court examine the rights of the Applicant and determine the impact of the Charter violation on the Applicant’s rights.

[83] Here, the Applicant has admitted in argument that investigative detention was available to the OPS as opposed to proceeding with an arrest. Further, the Applicant was informed of the reason for his arrest and was informed that anything he said would be admissible in Court. The Applicant was given the information about the risk of saying anything to the police and he proceeded with having a one-way conversation that was not elicited by police. Accordingly, the impact of the breach on the Applicant’s right to make an informed choice is lessened.

The Impact of the Exclusion

[84] The final inquiry to be made pursuant to the Grant analysis is to consider the impact that exclusion would have on the repute of the administration of justice.

[85] Obviously, the evidence obtained is very reliable, as the handgun was found where the Applicant said it was located. To exclude this type of relevant and reliable evidence would have a significant negative impact on society’s confidence in the justice system. Unlike a confession obtained through threats, which puts in doubt the reliability of the evidence, the evidence in question speaks for itself. The evidence is important to the serious charges that the Applicant faces and its exclusion would negatively impact the prosecution. This conflicts with society’s interest in the adjudication of the case on its merits and strongly favours the inclusion of the evidence.

Balancing of all the Factors

[86] The three-step inquiry in Grant is not a mathematical calculation of the factors which favour inclusion against those which favour exclusion. The overall assessment of the Grant analysis must be made within the context of these proceedings and society’s views on illegal handguns.

[87] The evidence presented does not suggest that there was recklessness on behalf of the OPS. While I would certainly say that there was a misconception by Detective Kay and Constable Seguin that the issuance of a search warrant allowed the OPS to arrest and detain the Applicant, the officers were not attempting by their actions to benefit in a manner not otherwise authorized by the Charter. They did not take steps to try to benefit from the section 9 breach, as they did not elicit information from the Applicant. They simply acted prematurely in arresting him.

[88] The charges against the Applicant are very serious as they involve the unlawful possession of a handgun, which is the subject of much concern in our society. The evidence seized is reliable and important. Society has a strong interest in the trial of these types of offences. The impact on the Applicant’s Charter-protected rights was minor. Also, there was no misconduct or bad faith on the part of the police. There were no intentional violations of the Applicant’s constitutional rights. In the words of Doherty J.A. in R. v. Blake, 2010 ONCA 1, 251 C.C.C. (3d) 4, at para. 33, there was no “taint of impropriety” or “inattention to constitutional standards” by the police to “tip the scales in favour of exclusion”.

[89] Having balanced all the relevant factors, I conclude that the admission of the evidence would not bring the administration of justice into disrepute. The Application is denied.

[90] During the hearing of this Application, both counsel requested to receive this decision electronically. As trial dates have been set, the matter is returnable to those dates, subject to trial readiness court.

Labrosse, J.

Released: May 6, 2016