R. v. Rover, 2016 ONSC 4795

Court File No.: CR-13-13497 Date: 2016-07-26

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Crown/Respondent – and – ADRIAN WASHINGTON ROVER Defendant/Applicant

Counsel: Gregory J. Raven, for the Crown/Respondent Kathryn Wells, for the Defendant/Applicant

Heard: Read in open court July 22, 2016

CHARTER RULING

CHARNEY J.:

Introduction

[1] The applicant Rover was charged with trafficking cocaine and the possession of various controlled substances for the purposes of trafficking contrary to the Controlled Drugs and Substances Act (CDSA). All of these charges are alleged to have occurred on April 12, 2013.

[2] The applicant has brought an application to exclude evidence pursuant to s. 8, 9, 10(b) and 24(2) of the Charter. The application is based on two related but distinct arguments. The first relates to the allegation that the search warrant was obtained by the police on the basis of information and/or evidence that was obtained in violation of the rights of third parties.

[3] The second relates to the allegation that the applicant’s own rights under s. 8, 9 and 10(b) of the Charter were infringed. As will become clear, some of these infringements are premised on the alleged violation of the rights of the third parties, others are independent of these third party violations.

[4] Given the exigencies of time I provided oral reasons for my decision to dismiss the motion on July 22, 2016, and indicated that I would provide written reasons at a later date. These are my written reasons.

Background Facts

[5] On April 11, 2013, an anonymous “concerned citizen” reported suspected drug activity to the Durham Regional Police (DRP). He reported that an unknown black male had been observed on a daily basis dealing drugs from the residence at 1009 McCullough Drive in the Town of Whitby. The citizen reported that daily vehicles are observed going to the house for a short period of time, from 5 to 15 minutes. The suspect was reported as being 6’2”, dark skin with a slim build and usually wearing a white jacket.

[6] The citizen reported that cars arrive and park in the driveway, the occupant of the vehicle makes a phone call, either sitting in the car or standing at the door. The unknown black male comes to the door and lets the person in. The person is then in the house from one to five minutes and then returns to their vehicle and leaves. The citizen reported that many people have been observed arriving at the house on foot because they park their cars around the corner.

[7] On that same day Constable Weiner performed a DRP Record Management System check on the address. This allows the police to seek information related to persons and addresses that have had some involvement related to the DRP. Constable Weiner learned that from 2006 to 2012 there were eight different people associated with the address, leading him to conclude that the residence was likely a rental unit with a frequent turnover of tenants.

[8] On April 12, 2013, members of the DRP “Target Team” led by Constables Sigmann and Weiner commenced surveillance of the occupant at 1009 McCullogh Drive. They observed four transactions that, based on Constable Wiener’s experience in relation to drug investigation, he believed to be indicative of drug transactions due to the brevity of the visit at the residence.

[9] The first occurred at 3:51 p.m. when a blue car pulled into the driveway. The male driver exited the vehicle and went into the house. At 4:04 p.m. the same male exited the residence and got back into the driver seat. A male matching the description of the suspected drug dealer, wearing a white hooded sweatshirt, black vest and toque exited the residence from the front door and got into the passenger seat, and the vehicle drove away. The vehicle was followed to Ajax where it was observed going behind a building. Both occupants exited the vehicle with the suspect drug dealer moving to the driver’s seat and driving away alone. At 4:32 p.m. the vehicle pulled into the driveway of another residence and the suspected drug dealer exited the vehicle and went into the residence for two minutes and then exited the residence and got back into the driver’s seat and drove away.

[10] At 6:09 p.m. a silver Ford van pulled into the driveway of 1009 McCullough Drive. The suspected drug dealer exited the passenger seat and stood in the driveway, the van then drove away. At 6:10 p.m. a male with a shaved head exited a silver Nissan that was parked on the street in front of 1009 McCullough Drive. The male walked up the driveway and met up with the suspect and both males entered the residence. At 6:25 p.m. the male from the Nissan exited the residence and went back to his vehicle and drove away.

[11] The silver van that dropped the suspected drug dealer off came back to the residence and parked in the driveway. At 6:25 p.m. the suspect exited the residence and got into the passenger seat of the silver van. At 6:30 p.m. the suspect exited the van and went back into the residence and the van drove away. According to Constable Weiner, based on his experience in relation to drug investigations, this was also indicative of a drug transaction because drug dealers will often meet with customers in their vehicles and exchange drugs for money.

[12] At 6:42 p.m., a red Ford pulled into the driveway with one occupant. The suspect exited the residence and got into the passenger seat. The vehicle drove away and went through a Tim Horton’s drive-thru. The vehicle returned to 1009 McCullough Drive at 6:55 p.m. The suspected drug dealer exited the passenger seat and went up to the house. The vehicle drove away and the suspect was observed using a key to unlock the front door and enter the residence. Constable Weiner stated that, based on his experience in relation to drug investigations, these actions were indicative of drug transactions due to the brief interaction of the driver and suspect, and the fact that drug dealers will leave their residence and complete drug transactions in vehicles.

[13] Based on their observations of those four transactions the police determined that they had sufficient evidence to arrest the next customers who attended at 1009 McCullough Drive for a brief period of time.

[14] At 8:30 p.m. a silver vehicle was observed parking on the street in front of the suspect residence. A white female was observed exiting the driver’s seat, walking up to the residence and going inside. A second female waited in the vehicle on the street.

[15] At 8:38 p.m. the female was observed exiting the residence and walking back to the vehicle. The female entered the driver’s seat and drove away. Constable Weiner stated that, based on his experience in relation to drug investigations, these actions were indicative of a drug transaction due to the brief time spent inside the residence.

[16] At 8:42 p.m. two DRP officers stopped the vehicle and arrested the occupants, Lindsay Thomas and Lee-Anne Murphy. Fifteen grams of cocaine were located inside the vehicle. Under caution Murphy advised the police that she purchased the cocaine from the male that lives at 1009 McCullough Drive for $580. She did not know the male’s identity.

[17] All of this information was set out in Constable Weiner’s affidavit in support of a CDSA search warrant for the residence located at 1009 McCullough Drive. The defence does not dispute that the information in the ITO accurately summarizes the combined observations of the investigative team. The application for the search warrant was submitted at 10:38 p.m. on April 12, 2013, and granted by the Justice of the Peace at 12:50 a.m. on April 13, 2013. The warrant authorized entry between the hours of 1:00 a.m. and 6:59 a.m. on April 13, 2013.

[18] The police maintained surveillance of the suspect who was seen leaving 1009 McCullough Drive at 10:33 p.m. At 10:41 pm the suspect was arrested in a convenience store and charged with possession for the purposes of trafficking. He was identified as Adrian Rover at the time of his arrest. Rover had a large quantity of currency in his possession and two cell phones.

[19] Rover was read his rights, and he requested to speak to counsel, but was uncertain how to reach his lawyer and asked the arresting officer to contact his mother.

[20] Rover was transported to 17 Division in Oshawa. The investigation team had previously determined that Rover’s right to contact his lawyer would be suspended until after the search warrant could be executed. This was the general practice in drug cases to ensure that accomplices are not tipped off and evidence is not removed or destroyed prior to the search, and to protect officer safety. Rover was not told that the police had suspended his right to contact counsel.

[21] Even though the warrant permitted entry at 1:00 a.m., the investigation team had to page the drug enforcement unit that had special training to conduct the entry and search of the residence. Police made entry at 2:55 a.m. and secured the home, beginning the search at 3:01 a.m.

[22] At 4:20 a.m. the arresting officer was advised that the suspension of Rover’s right to contact counsel was lifted, and he made attempts to contact Rover’s mother. He had the incorrect number for Rover’s mother (likely a transcription error), and it took him approximately 20 minutes to find the correct number. The phone was answered at 4:38 a.m. by a male who identified himself as the mother’s husband. He took the officer’s contact information and promised to call back with Rover’s lawyer’s contact information. He did not call back, and at 5:15 a.m. the arresting officer called the number again. The officer was advised that he should ask Rover himself as neither Rover’s mother nor her husband knew the phone number for Rover’s lawyer.

[23] A call to duty counsel was made at 5:17 a.m. and a message was left. Duty counsel returned the call at 5:45 a.m. and Rover spoke to duty counsel at that time.

[24] The police did not question Rover about the allegations prior to him speaking with counsel and the Crown does not seek to tender any statements by the accused in his trial.

[25] At 7:30 a.m. on April 13, 2013, Rover was advised of new charges and read his right to counsel again.

Issue 1: Probable Cause for Arrest

[26] The applicant argues that the police lacked reasonable and probable grounds for his arrest and as a result his arrest violated s. 9 of the Charter. He argues that the police had no idea who was in the residence at 1009 McCullough Drive, or whether anyone came or went from the back of the residence. They assumed that the first black male they saw in front of the residence was the target or suspect, and had nothing more than a “hunch” and a tip from an anonymous citizen whose credibility was unknown. There were perfectly innocent explanations for the conduct (the brief visits) that the police assumed were drug related, and the police simply interpreted all of the applicant’s conduct as support for their suspicions.

[27] The Crown submits that there were reasonable and probable grounds on both a subjective and an objective basis for the arrest.

Analysis

[28] The legal principles relating to arrest without warrant were recently summarized by B.P. O’Marra J. in R. v. Anang, 2015 ONSC 3463, at paras. 28-33:

[28] A peace officer may, without warrant, arrest a person who on reasonable grounds he believes has committed an indictable offence. See Criminal Code, s. 495(1)(a).

[29] The arresting officer must subjectively believe that he or she has reasonable and probable grounds to arrest and those grounds must also be justified on an objective basis. A reasonable person placed in the position of the officer must be able to conclude there were reasonable and probable grounds for the arrest. See R. v. Storrey, [1990] 1 S.C.R. 241, at paras. 15 and 16.

[30] Information that would not meet the reasonableness standard on an application for a search warrant may still meet that standard in the context of an arrest. See R. v. Golub, [1997] O.J. No. 3097, at para. 18.

[31] The test for reasonableness does not require that the matter be viewed from the perspective of a reasonable layperson but rather from the standard of a reasonable person “standing in the shoes of the police officer.” The reasonable person must be deemed to have the same level of experience as the officer whose actions are being scrutinized. An objective assessment of the grounds will thus include consideration of the officer’s experience as well as the dynamics within which he or she acted. See R. v. Hanson, [2009] O.J. No. 4152, at paras. 58 and 59; and R. v. Tran, 2007 BCCA 491, at para. 12.

[32] The totality of the circumstances relied upon by the arresting officer will form the basis of the objective assessment. See R. v. Lawes, 2007 ONCA 10, at para. 4.

[33] Officers may form the grounds to arrest based on information from other sources, including other officers, as well as their own observations. Officers on an investigative team are not silos restricted to act only on what they personally observe or information they receive. See R. v. Debot, [1989] 2 S.C.R. 1140.

[29] In addition, the Court of Appeal for Ontario has reiterated that “When considering the objective reasonableness of the subjective grounds for arrest, a court must look to the totality of the circumstances, and it is not appropriate to consider each fact in isolation (R. v. Labelle, 2016 ONCA 110, at para. 10, citing R. v. Lawes, 2007 ONCA 10, at para. 4; R v. Italiano, 2015 ONCA 179, at para. 8).

[30] See also R. v. Dhillon, 2016 ONCA 308, at para. 25:

The standard does not require that the police demonstrate anything more than reasonable and probable grounds. They are not required to establish a prima facie case for conviction before making the arrest. The standard is met at the point where credibly-based probability replaces suspicion. Of course, the totality of the circumstances is to be considered.

[31] The totality of circumstances in the present case is very similar to the circumstances that met the reasonable and probable grounds standard in cases such as Dhillon, at paras. 31-44, Anang, at paras. 35-38, R. v. Italiano, at paras. 3-7, and R. v. Guindon, 2015 ONSC 4794, at paras. 56 and 57. The series of brief meetings or transactions observed by the officers in this case is precisely the type of conduct that has been viewed as objectively supporting reasonable grounds to believe that a trafficking offence has been committed resulting in arrest for trafficking a controlled substance. The fact that there may also be innocent explanations for each incident viewed in isolation does not detract from its objective reasonableness when viewed in its totality (Guindon, 2015 ONSC 4794, at para. 59).

[32] The arrest in this case was based on the following information obtained by the officers:

(a) Information obtained from the anonymous “concerned citizen”. Although the credibility of the anonymous informant could not be measured, the police were entitled to follow up on this tip as a basis for an investigation. While the information provided by the informant did not identify the suspect by name, it provided enough details of his appearance and mode of operation to permit the police to investigate. This was a case in which “the quality of the information and corroborative evidence” compensated for the inability of the police to assess the credibility of the source (R. v. Debot, [1989] 2 S.C.R. 1140, at pp. 1170-1171; Dhillon, at para. 33). (b) Surveillance by the police observed the suspect involved in four transactions that, based on the experience of the officers involved in the investigation, were indicative of typical drug transactions. (c) The suspect was the only occupant of the residence observed coming in and out of the front door. (d) Licence plate checks of the vehicles involved in these transactions revealed that one of the vehicles was associated with an individual with a criminal record relating to trafficking and other vehicles were associated with persons with a history of drug related activity. (e) The investigation corroborated the information provided by the informant, and in particular the description of the suspect and the manner in which the suspect engaged in drug transactions. (f) The fifth transaction involving the two women (Thomas and Murphy) who had a brief visit to 1009 McCullough Drive, which was also indicative of a typical drug transaction. (g) Upon arrest of Thomas and Murphy and search of the vehicle they were found to have 15 grams of cocaine that Murphy told the officers they purchased from the male who lived at 1009 McCullough Drive.

[33] In my view the objective test has been met in this case. A reasonable person in the position of Constables Sigmann and Weiner and the other members of their team would be able to conclude that there were reasonable and probable grounds to arrest the applicant for trafficking in a drug. I take into consideration the officers’ experience in drug investigations. The totality of the circumstances was sufficient to establish the objective reasonableness of the subjective grounds for arrest.

[34] I would reach this conclusion even if Thomas and Murphy had not been arrested and searched after their brief visit to 1009 McCollough Drive. By this point in time the surveillance had established a pattern of activity that was inconsistent with “innocent or commonplace conduct” (Dhillon, at para. 41).

[35] Accordingly, the applicant’s Charter s. 9 rights were not breached.

Issue 2 – Did the Search Violate the Applicant’s Section 8 Rights?

[36] The applicant argues that the arrest of Thomas and Murphy was illegal because the police did not have reasonable and probable grounds to arrest them. Accordingly, their arrest was a violation of their s. 9 Charter rights. The police relied on information obtained from that unlawful arrest as the basis for the Information To Obtain (ITO) the CDSA warrant to search 1009 McCullough Rd. That information is contained in paragraphs 16(c) and 17 of the ITO sworn by Constable Weiner in support of the warrant. The applicant argues that if that illegally obtained information is deleted from the ITO the search warrant would not be granted, and therefore the evidence obtained on the search of 1009 McCullough Drive should be excluded as a violation of Charter s.8.

[37] There is no question that the applicant has standing to challenge the search warrant and ITO used to obtain it since it directly engages his privacy rights. The issue is whether the applicant can rely on the Charter rights of third parties (Thomas and Murphy) to exclude evidence referred to in the ITO. The applicant argues that the police cannot rely on or benefit from illegally obtained evidence to support a search warrant.

[38] The Crown takes the position that if the evidence did not infringe the applicant’s own Charter rights it cannot be excluded under s. 24(2). In the alternative, he argues that the police had reasonable and probable grounds to arrest Thomas and Murphy and so there was no violation of their Charter s. 9 rights and no basis to delete that information from the ITO.

[39] I agree with the Crown that the general principle is that in order to have evidence excluded under the Charter a person must demonstrate that his own rights under the Charter were violated. See in this regard: R. v. Belnavis, [1997] 3 S.C.R. 341, at paras. 19, 20 and 25; R. v. Edwards, [1996] S.C.R. 128, at para. 45: “A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed.”; R. v. Paolitto, [1994] O.J. no. 1220 (C.A.), at para. 25.

[40] On the other hand, I agree with the applicant that certain inroads have been made in that principle such that it may be open to reconsideration at some point.

[41] For example, in the Italiano case, there were originally two appellants, Italiano and Abdul-Hamid. Abdul-Hamid’s appeal was dismissed as abandoned because he did not surrender into custody. Italiano’s appeal was based on the allegation that the police did not have reasonable and probable grounds to arrest Abdul-Hamid and thus the evidence against Italiano should have been excluded. Rather than deciding the issue on the basis that Italiano could not rely on the s. 9 rights of Abdul-Hamid to exclude evidence, the Court of Appeal stated (at para. 2): “Given our finding on the merits of the appeal, it is not necessary for us to decide the issue of whether Italiano has standing to challenge the constitutionality of the arrest of Abdul-Hamid.” This suggests that the issue of standing to raise the Charter rights of third parties may be less certain then suggested by earlier authorities.

[42] A helpful consideration of the issue of third party Charter rights is found in Bird J.’s decision in R. v. Guindon, 2015 ONSC 4317. There are three decisions arising out of the Guindon prosecution. Guindon, 2015 ONSC 4317 is a different decision than the earlier referenced R. v. Guindon, 2015 ONSC 4794. To keep the several decisions straight I will refer to them by their ONSC page number.

[43] In order to understand the decision in Guindon, 2015 ONSC 4317, it is helpful to begin with R. v. Guindon, 2015 ONSC 4191. In that case, the applicant Gonder, and his co-accused were charged with drug related offences. Gonder brought an application to exclude evidence seized by the DRP from his person following a stop of a vehicle in which he was the front seat passenger on March 7, 2012. The car belonged to and was driven by a person named Skitch who was not one of the accused. Gonder alleged that the warrantless search was conducted pursuant to an unlawful arrest and therefore violated his rights under s. 8 and 9 of the Charter.

[44] Bird J. concluded (at paras. 30 and 35) that there was no objective basis to support an arrest of the applicant and a search incident to arrest can only be valid if the arrest giving rise to it is lawful. Having found that Gonder’s rights under s. 8 and 9 of the Charter were infringed, she then considered the three factors set out in R. v. Grant, 2009 SCC 32 and concluded (at para. 43) that admitting the evidence unlawfully seized from Gonder would, on the facts of the case, bring the administration of justice into disrepute, and ordered the evidence found on Gonder’s person excluded.

[45] Bird J. also concluded that the vehicle stop, arrest and search of Skitch was unlawful, but held (at para. 44) that Gonder did not have standing to challenge the search of Skitch personally or her motor vehicle.

[46] In Guindon, 2015 ONSC 4317 the applicants sought to exclude all evidence related to the March 7, 2012 vehicle stop, including evidence seized from Skitch, her purse and motor vehicle. Again, Skitch was not before the court. The issue was whether (at para. 5) “evidence obtained in violation of the Charter rights of a third party should be excised from affidavits and ITOs that were used to obtain orders that do engage the applicants’ privacy rights.” That is exactly the issue in the case before me.

[47] Bird J. was of the view that the applicant had standing to challenge any erroneous material that may be in an affidavit or ITO used to obtain a search warrant that engages the applicant’s privacy interests (at para. 8):

The law is well established that all erroneous material must be excised from an affidavit on a Garofoli review (R. v. Araujo, 2000 SCC 65, at paragraphs 57 and 58). In all of the cases that deal with the excision of erroneous information, there is no suggestion that only those errors which relate directly to an applicant are to be removed. Affidavits and ITOs contain a wealth of background information that doesn’t all pertain directly to each accused person. The activities of associates who are not charged may be referred to, as might places in which an applicant could not assert a privacy interest. If a mistake is made describing the activities of associates of an applicant, that erroneous material will be excised from the affidavit. The applicant does not need to establish a personal interest in the information to have it excised.

[48] One of the concerns in relation to conducting a review of the Charter rights of persons who are not before the Court is that it may present a potentially limitless inquiry, or as the Court of Appeal stated in R. v. Chang, at para. 40, quoting the trial judge “This process could stretch back into infinity”. Police may collect information from numerous sources when conducting an investigation, with one lead leading to another. Requiring the court to examine the Charter rights of every individual who has had some connection to a police investigation – even though they are not a party to the proceeding before the court - may result in endless collateral inquiries.

[49] In Guindon, 2015 ONSC 4317 Bird J. notes that she has already made a ruling in Guindon, 2015 ONSC 4191 that the impugned evidence was obtained in violation of the Charter, and therefore this concern does not apply to that case (at para. 11):

There has already been a ruling that the impugned evidence was obtained in violation of the Charter. I found that there were insufficient grounds to stop the Suzuki, the arrests of the occupants were unlawful and the resulting searches were illegal. The applicants are not attempting a collateral attack on anything in seeking excision of the events of March 7, 2012. There can be no concern about the process extending into infinity because the ruling has already been made.

[50] While this consideration appears to limit the scope of her ruling, it must be remembered that Skitch was not an accused person when Bird J. decided that the vehicle stop, arrest and search of Skitch violated the Charter in Guindon, 2015 ONSC 4191. In that sense Skitch was in much the same position as Thomas and Murphy in the case before me – she was stopped, arrested and searched, and the search revealed information used to support the search warrant against the accused. Bird J.’s consideration of the validity of that search in Guindon, 2015 ONSC 4191 even though Skitch was not charged in that proceeding ultimately supports the position of the applicant on the application before me.

[51] In the result Bird J. concluded in Guindon, 2015 ONSC 4317 that the applicants were entitled to challenge the legality of the evidence upon which the authorizations, search warrants and production orders impacting their privacy interests were based. Since she concluded that the evidence seized from vehicle stop of March 7, 2012 was obtained illegally “a failure to excise references to this evidence would permit the state to benefit from the illegal conduct of the police.” (para. 20) Accordingly, she ordered all references to the vehicle stop of March 7, 2012, the arrests of the occupants including Skitch, and the seizure of any evidence from that stop and search, be excised from the affidavits and ITO’s in support of the warrants.

[52] Given the decisions in Guindon and the uncertainty regarding this issue, I am going to take my lead from the Court of Appeal in Italiano, and consider whether the arrest and search of Thomas and Murphy did violate s. 8 and 9 of the Charter.

[53] In my view, for the reasons set out in relation to the arrest of the applicant at paras. 31–34 above, the police did have reasonable and probable grounds to arrest Thomas and Murphy when they drove away from 1009 McCullough Drive and conduct a search incident to that legal arrest. The totality of the information obtained by the officers as set out in para. 32 (a) to (f) above established a pattern of conduct that was indicative of drug trafficking. Thomas and Murphy were the fifth brief transaction observed that day; given the totality of circumstances this was sufficient to establish the objective reasonableness of the subjective grounds for arrest.

[54] Given my conclusion that there were reasonable and probable grounds to arrest Thomas and Murphy, there is no basis to excise paragraphs 16(c) and 17 of the ITO, and the search warrant remains valid.

[55] A final issue raised by the applicant with respect to the validity of the search warrant relates to the accuracy of para. 17 of the ITO which states:

Police arrested Lindsay Thomas and Lee-Anne Murphy after a drug transaction was observed.

[56] The applicant argues that this statement is misleading. The police did not know whether they observed a drug transaction – all they know is that one of the women entered the house at 8:30 p.m. and exited again at 8:38 p.m. They suspected that this was a drug transaction, but it was misleading to state that they observed a drug transaction.

[57] On cross-examination Officer Weiner agreed that it would have been more accurate to state “a suspected drug transaction” in para. 17, but took the position that read together with para. 16, this was clear from the context of the statement. I agree with this position. Paragraph 16 states that the officer observed the driver entering the house and leaving the house, and then states “based on my experience in relation to drug investigations and previous observations that have been made, I believe these actions were indicative of a drug transaction due to the brief time spent inside the residence.” This makes it perfectly clear that it was a suspected drug transaction, and reading paragraph 17 together with paragraph 16 is not at all misleading.

[58] It is worth noting that para. 16(c) also indicates that the police found 15 grams of cocaine inside the vehicle, and that Murphy advised that she purchased the cocaine from the male that lives at 1009 McCullough Drive. This statement appears to confirm that the police did observe a drug transaction.

[59] In my view, read together with para. 16, there is nothing misleading or inaccurate about para. 17 that would result in its excision.

Issue 3 - Right to Counsel

[60] The applicant was read his right to counsel upon arrest at 10:41 p.m., and he indicated that he wanted to speak to counsel. His right to contact counsel was, however, suspended until after the residence was secured at 3:01 a.m. It was not until 4:20 a.m. that the arresting officer was advised that the suspension of the applicant’s right to contact counsel was lifted. The call to duty counsel was finally made at 5:15 a.m.

[61] The content of the s. 10(b) Charter right to counsel includes a number of component parts. They were summarized by the Supreme Court in R. v. Bartle, [1994] 3 S.C.R. 173, at 301 (S.C.C.):

This court has said on numerous previous occasions that s. 10(b) of the Charter imposes the following duties on state authorities who arrest or detain a person:

(a) To inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel; (b) If a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and (c) To refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

[62] The Supreme Court described the first duty as “informational” and the second and third duties as “implementational”.

[63] The police complied with the first informational duty in this case. They also refrained from eliciting evidence from the applicant until he had an opportunity to speak to counsel. The real issue relates to the police violation of the duty to provide the applicant with an opportunity to exercise his right to speak to a lawyer.

[64] The police suspended the applicant’s right to retain and instruct counsel until the search warrant was implemented in order to prevent the loss or destruction of evidence and out of a concern for officer safety. They assert that there was a need to prevent any communication by the accused to third parties, including counsel, prior to the execution of the search warrant. The concern is that if counsel contacts any third party (for example a potential surety) before the search can be conducted there is a real chance that the third party will beat the police to the search location (or may already be there) and remove or destroy evidence or ambush the police.

[65] The cases dealing with police delays in implementing s. 10(b) duties were reviewed by Code J. in R. v. Learning, 2010 ONSC 3816. He notes that the root case for allowing the police to delay s. 10(b) implementation duties when executing a warrant is R. v. Strachan, [1988] 2 S.C.R. 980, at 493-4. He stated (at para. 73):

The principle in Strachan, that the police can delay the implementation of s. 10(b) rights in cases where a search warrant is being executed and guns are believed to be on the premises, has been applied in a line of subsequent authority. These subsequent cases are closer to the facts of the case at bar as they involve arrests of the accused that take place away from the premises to be searched and before a warrant has been obtained or before other suspects have been arrested. Delays of over five hours in implementing s. 10(b) rights were held to be justified in two cases and a delay of almost two hours was justified in a third case. See: R. v. Schultz; R. v. James, [2001] Q.J. No. 5232 (C.A.); R. v. Kiloh, 2003 BCSC 209. In one particularly extreme case, a delay of over twenty-four hours in implementing s. 10(b) rights was held to be justified while the police obtained a search warrant in order to seize multiple firearms from a violent criminal family. See: Blakely v. Parker.

[66] Like the cases described by Code J., in the present case the arrest took place away from the premises to be searched and before the warrant had been obtained. The present case does not, of course, involve firearms, although it is reasonable for the police to be concerned that any drug dealer or his associates may have access to firearms. Drug trafficking is frequently associated with firearms and violence. The concern for removal or destruction of evidence is also a very real concern in these circumstances.

[67] The Crown acknowledges that the applicant’s s. 10(b) right to retain and instruct counsel without delay was violated as of 3:01 a.m. At that time the police had obtained the search warrant and secured the home – there was no longer any risk that a third party would destroy evidence or pose a safety risk to the police. The evidence in this case strongly suggests that the delay between 3:01 a.m. and the phone call to the arresting officer at 4:20 a.m. was the result of police being too busy with paper work and administrative responsibilities to concern themselves with the applicant’s right to speak to counsel.

[68] Counsel for the applicant puts the time of the Charter breach much earlier. She takes the position that the police could have kept watch over the residence to prevent anyone from entering the premises to destroy evidence. If that is correct there was no reason to suspend the applicant’s right to speak to counsel. At the very latest she argues the warrant permitted entry at 1:00 a.m., and the police should have been ready to enter the premises and secure them at that time.

[69] There is a limit to how much I am prepared to second guess police resources and procedures. Until police have secured the residence they cannot be certain whether there are other persons inside or other means of entering that are not observable. They do not know when the warrant will be issued, and it may not be reasonable to keep members of the Drug Enforcement Unit on standby for hours waiting for the warrant to be issued. Given potential risks to officer safety, it is reasonable to have specially trained units to conduct the entry to the residence.

[70] In the circumstances of this case I am satisfied that the police had legitimate concerns about possible removal or destruction of evidence and, to a lesser extent, officer safety, such that it was reasonable to temporarily delay the applicant’s s. 10(b) right to speak to a lawyer. They should have, however, advised him that they were suspending this right. No reason was provided for keeping this information from him.

[71] I am also prepared to accept that the suspension was reasonable until the Drug Enforcement Unit secured the residence at 3:01 a.m. At that point the applicant’s s. 10(b) right to exercise his right to speak to counsel was denied until 4:20 a.m. when the phone call to his mother was first attempted. The time between 3:01 a.m. and 4:20 a.m. was the result of the police officers lack of concern for the applicant’s Charter rights. It was not a deliberate effort to prevent his speaking to counsel, but it was a lack of concern and understanding of the importance and priority that must be given to the applicant’s s. 10(b) rights.

[72] As of 4:20 a.m. the efforts to contact counsel were marked by errors and misjudgements. I accept the applicant’s position that the wrong phone number for the applicant’s mother was more likely the result of the officer mistranscribing a single digit rather than being given a wrong number by the applicant as the police officer insisted. The 20 minute delay until the correct phone number could be found is not, in itself, a serious Charter violation. I agree with the applicant, however, that the officer should have called Duty Counsel or advised the applicant as soon as the applicant’s mother and her husband were unable to provide a lawyer’s phone number at 4:38 a.m. Given the delays that had already occurred, the officer should not have waited more than 30 minutes before calling again.

Section 24(2)

[73] The violation of the applicant’s Charter s. 10(b) rights triggers a s. 24(2) analysis. As the Court of Appeal stated in R. v. Daley, 2016 ONCA 564, at para. 11:

In order to trigger the s. 24(2) analysis, all the appellant had to demonstrate was that the evidence sought to be excluded was “obtained in a manner” that infringed her Charter rights. This does not require that the violation cause the police to obtain the evidence, only that there be a nexus or connection between the two.

[74] The nexus or connection can be a temporal or contextual connection. The contextual connection can apply even if the Charter breach occurs after the discovery of the evidence. In R. v. Pino, 2016 ONCA 389 the Ontario Court of Appeal held that s. 24(2) can apply to a breach of s. 10(b) even if that breach occurs after the discovery of the evidence.

[75] I accept that, based on Pino, there is a temporal and contextual connection between the s. 10(b) breach and the evidence obtained pursuant to the search warrant. The search and the s. 10(b) Charter breach are part of the same transaction or course of conduct in that the right to contact counsel was delayed specifically to permit the search of the residence to proceed.

[76] Accordingly, I must consider whether the admission of the evidence obtained pursuant to the search warrant would bring the administration of justice into disrepute. In making that assessment the court must take account of and balance the three factors stipulated by the Supreme Court in R. v. Grant:

• The seriousness of the Charter-infringing state conduct;
• The impact of the breach or breaches on the Charter-protected interests of the accused; and
• Society’s interest in the adjudication of the case on its merits.

[77] The police officer’s failure to facilitate the applicant’s right to counsel between 3:01 a.m. and 4:20 a.m. was a serious breach of s. 10(b) reflecting the police’s disinterest in his rights. Not quite a conscious disregard for the Charter, but a failure to appropriately prioritize the applicant’s rights. When the police are permitted to temporarily suspend or delay implementation of the applicant’s s. 10(b) rights to permit them to secure the premises to be searched, they have an obligation to ensure that the delay or suspension is no longer than necessary to permit the police to secure the premises. It is incumbent on the police to ensure that they implement the applicant’s s. 10(b) rights as soon thereafter as practicable. That did not happen in this case.

[78] The delay after 4:20 a.m. was more attributable to errors and misjudgements than to a lack of concern or disinterest.

[79] I am mindful, however, that in cases such as Pino, R. v. McGuffie, 2016 ONCA 365 and Daley, the Charter infringements related to multiple Charter violations of s. 8, 9 and 10 of the Charter. This was a significant factor in the court’s analysis in those cases. In the present case the police obtained a search warrant before conducting the search of the residence and did not question the applicant about the allegations prior to him speaking with counsel. There is no allegation that the police exceeded their authority under the authorized warrant. There was no violation of Charter s. 9. Accordingly, the Charter infringing state conduct was not as serious as the conduct considered in those cases.

[80] The second factor to be considered is impact on the Charter-protected interests of the accused. Given that the police did not question him about the allegations prior to his speaking to counsel, the impact on his Charter protected interests was of moderate significance. There is no evidence or suggestion that the police took advantage of the s. 10(b) delay or gained any advantage from the delay, or that anything would have occurred differently if the applicant had been given an opportunity to speak to counsel at 3:00 a.m. or even at 1:00 a.m. While there is a temporal and contextual connection between the violation and the evidence collected, there is no causal connection (McGuffie, at para. 79).

[81] In Pino the Court of Appeal stated that (at para. 105) “being forced to sit alone in a jail cell for over five hours after … arrest without access to counsel undermined the very interests s. 10(b) seeks to protect: correct information about the right to counsel and the immediate ability to consult with a lawyer.” While the applicant in this case was not permitted to contact counsel for longer than five hours, I have concluded that the suspension was reasonable until 3:00 a.m. Accordingly, while the s. 10(b) breach was neither technical nor fleeting in this case, the impact does not rise to the level identified in Pino.

[82] In McGuffie, the Court of Appeal held that the third inquiry of the Grant analysis becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. The court explained (at para. 63):

If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility … Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see e.g. Grant, at para. 140.

[83] In the present case the evidence sought to be excluded is real and reliable non-conscriptive evidence collected from a search conducted under a valid warrant. Its exclusion would likely end the Crown’s case against the applicant.

[84] Balancing the three factors considered under Grant, I am of the view that the first factor makes a strong case for exclusion (although not as strong a case as, for example, Pino and McGuffie), and the second factor makes only a moderate case for exclusion. In these circumstances the third factor, in my view, does tip the balance in favour of admissibility, and the evidence seized from 1009 McCullough Drive is admissible and should not be excluded under s. 24(2) of the Charter.

[85] The same analysis applies to the evidence seized from the accused when he was arrested.

[86] Accordingly the application to exclude evidence is dismissed.

NOTE: As noted in court, on the record, the written ruling is to be considered the official version and takes precedent over the oral reasons read into the record. Any discrepancies between the oral and written versions, it is the official written ruling that is to be relied upon.

Justice R.E. Charney Released: July 26, 2016