COURT FILE NO.: CR-13-03160-00 DATE: 20160906 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – DALTON HUDSON Defendant/Applicant

Counsel: Carol Shirtliff-Hinds, for the Crown Joelle Klein, for the Defendant

HEARD: August 23-25, 2016

REASONS FOR DECISION – Voir Dire

CHARNEY J.:

Introduction

[1] The applicant is charged with trafficking in a substance (cocaine) and possession for the purposes of trafficking (marihuana and cocaine) contrary to ss. 5(1) and (2) of the Controlled Drugs and Substances Act (CDSA). The offences are alleged to have been committed on March 28, 2013.

[2] The Crown brought a pre-trial motion for an order granting admissibility of two statements on the ground that they were made voluntarily:

a. Utterances made by the accused at the roadside subsequent to his arrest to a person in authority (“the roadside statement”).

b. A video recorded statement made by the accused to a person in authority at the police station (“the video statement”).

[3] At the hearing of the pre-trial motion the Crown also sought an order granting the admissibility of a third statement made by the accused while he was being taken back to his cell after the video statement had concluded (“the off-video statement”). No objection was taken to the Crown raising the voluntariness of this third statement.

[4] The applicant has brought an application for an order excluding the evidence obtained under the search warrant on the ground that the information used to obtain the search warrant (including the off-video statement) was obtained in violation of the applicant’s s. 10(b) Charter right to counsel. This same argument would apply to any of the statements made by the applicant to the police.

[5] At the hearing of the pre-trial motion the applicant also argued that the police did not have reasonable and probable grounds to arrest him, and therefore any evidence obtained incident to the arrest was also inadmissible.

Background Facts

[6] In January 2013, the York Region Police Services obtained information from a confidential informant that a 35 – 40 year old six-foot, thin black male residing in Vaughan and using a cell phone with a specific phone number was selling crack cocaine from his car. A subscriber check of the phone number yielded the applicant’s residential address. The applicant matched the description provided by the confidential informant. The confidential informant had proven reliable in the past.

[7] The police commenced an investigation of the applicant. On March 27, 2013, they observed him exit his place of business (a restaurant) and approach a male in a white Acura. The male in the Acura exited the vehicle and gave the applicant a small package. During the transaction the male was looking over his shoulder and appeared nervous and was looking around to see if he was being watched.

[8] The applicant was observed entering the restaurant with the package. He exited the restaurant with a small item that appeared to be an envelope and handed it to the male. They both got into the Acura, and a few seconds later the applicant exited the Acura and left. Based on their experience in trafficking investigations, the police determined that this behaviour was consistent with a drug transaction. The police did not observe any other activity that day that was consistent with drug transactions.

[9] Police investigations later that day revealed that the Acura was registered to an individual who had been convicted of trafficking in 2005.

[10] On March 28, 2013, the investigation continued. The applicant was observed getting into his vehicle at his residence with his young daughter in the back seat. He was followed to the Royal Bank parking lot on Jane St. in the City of Vaughan. He remained in the vehicle. A gold coloured minivan with a single white male occupant drove into the parking lot and pulled up to the applicant’s car. The applicant then got out of his vehicle, took the child out from the back seat and approached the gold minivan. The applicant was observed opening the front passenger seat of the minivan, placing the child in the front seat and then leaning into the vehicle. The police could not see what he did when he leaned into the vehicle. He then picked up his child and closed the door and went into the bank with the child. This quick transaction appeared to the police to be consistent with a drug transaction.

[11] At this point the police decided that they had reasonable and probable grounds to arrest the applicant, but waited until he left the bank.

[12] Some of the officers followed the gold minivan to the parking lot behind a grocery store. The officers used their cars to block the minivan, and two of them observed the occupant swallow what appeared to be a small white substance before the police approached. The officers believed that this substance was crack cocaine. The police observed the occupant reach back and place something on the floor behind him. The item was found by the police. It was a Tic Tac box modified with tin foil and holes designed for smoking crack cocaine. The male was placed under arrest for possession of a controlled substance, although no drugs were found in the minivan. As events unfolded the male was revealed to be an OPP officer. [1]

[13] The applicant was arrested for trafficking in a controlled substance when he exited the bank. He was searched and found to be in possession of two cell phones and $280. No drugs were found.

[14] He was immediately read his rights to counsel and cautioned by the arresting officer. While the arresting officer made a note that the applicant stated he understood his rights and the caution, the arresting officer did not make a note of whether the applicant asked to speak to counsel, and candidly acknowledged that he has no recollection today (three years later) what the applicant replied in this regard. The applicant denies being read his right to counsel upon arrest.

[15] The arresting officer questioned the applicant if he used drugs, and noted that the applicant stated that he used crack cocaine and marihuana. When asked if he had any drugs in his residence the applicant answered that he had 0.2 grams of crack cocaine in his kitchen cupboard.

[16] The arresting officer testified that while he has no specific recollection, he believes that the applicant waived his right to counsel – otherwise he would not have asked the applicant any questions.

[17] The applicant was then put in a police car and transported to the police station. The interaction in the police car was recorded and indicates that the applicant was advised that he was being arrested for trafficking and read his rights to counsel and cautioned. At first the applicant did not respond, but the transporting officer was careful to obtain an answer from the applicant and asked “Do you want to speak to a lawyer or not?” The applicant replied: “Yes”. The officer then asked: “Do you have your own lawyer or do you want to speak to a free lawyer?” The applicant replied: “I don’t have a lawyer”. The officer assumed that this meant that the applicant wanted to speak to duty counsel, and arrangements were made at the station for that consultation. The applicant also asked the officer: “What trafficking though, what for?”

[18] At the station the applicant did speak to duty counsel for about 15 minutes.

[19] Following consultation with duty counsel, the applicant was brought to the interview room to be interviewed by Detective Kalonomos. The interview began at 4:19 p.m. and begins with the following discussion:

Det/K.: You were arrested on a charge of trafficking a controlled substance. Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so. But whatever you do say will be taken down in writing and may be given in evidence. Do you understand this caution? Hudson: Yes sir. Det/K.: If you have spoken to any police officer, or anyone in authority regarding this matter, or if any such person has spoken to you in connection with this case, I want it clearly understood that I do not want it to influence you in making any statement. Do you understand this secondary caution? Hudson: Yes sir. Det/K.: You have the right to retain and instruct counsel for today. You have the right to telephone any lawyer you wish. You also have the right to obtain free advice from a Legal Aid Lawyer. If you are charged with an offence you can apply to the Ontario Legal Aid plan for assistance for legal assistance, 1-800-265-0451 is a toll free number that will put you in contact with a Legal Aid, Duty Counsel lawyer for free legal advice, right now, do you understand that? Hudson: Yes sir Det/K.: Okay, do you wanna contact a lawyer right now? Hudson: I would, but I don’t have the number right now. Det/K.: Okay. Hudson: My brother has the number. Det/K.: Okay, your brother has the number? Hudson: Yeah. Det/K.: Okay. Did you speak to a lawyer at all today? Hudson: Counsel, yeah, Duty Counsel, I called. Det/K.: You spoke to Duty Counsel? Hudson: Yeah, Yeah. Det/K.: Okay. So what this means basically is that you can speak to a lawyer anytime you wanna speak to a lawyer, okay. And you don’t have to say anything in this room unless you wanna do so. Okay, it’s your decision no one forces you to say anything. Hudson: All right. Det/K.: Okay. Are you satisfied with the legal advice you received today? Hudson: To some extent. Det/K.: To some extent? Hudson: Yeah, yeah. Det/K.: Okay. Okay, so basically I am not gonna take a statement from you if you feel like you haven’t spoken to a lawyer or it – it’s your opinion, if you wanna say something to me… Hudson: Yeah, because I just want to know exactly what they say is trafficking, right? Det/K.: Yeah. The charge itself is trafficking of a controlled substance. My job here is to get your side of the story what happened in the parking lot, prior to you getting stopped. Hudson: Right, that’s what I wanna know, why - why was I stopped like that. Det/K.: Okay. You are arrested for trafficking of a controlled substance. Hudson: Yeah, but I didn’t traffic nothing. Det/K.: Okay. Hudson: That’s the whole point.

[20] At this point Detective Kalonomos asked the applicant what happened in the parking lot that made the officers believe that he was trafficking, and for the next hour the applicant explained that he was buying Air Jordan brand shoes from the driver of the gold van for $300. He gave the driver a $40 deposit and then went to the bank to get the rest of the money. The applicant maintains this position and his innocence throughout the interview.

[21] At various points in the interview Detective Kalonomos asks the applicant questions such as (p. 34): “When we go into your residence with a search warrant will I find any drugs?” The applicant responded: “Like some weed and that’s it.” References to anticipated search warrants also appear at pp. 40 and 90-91.

[22] The video interview concluded at 5:21 p.m.

[23] Following the interview Detective Kalonomos took the applicant back to his cell. On the way to the cell Detective Kalonomos testified that he asked the applicant once more what the police would find in the house, and this time the applicant replied that he would find weed in the garage and crack in the bedroom drawer. This interaction was not videotaped. Detective Kalonomos denied that he threatened to use dogs to destroy the house, but acknowledged that canines were a resource at their disposal and he would tell that to the accused.

[24] This conversation does not appear in Detective Kalonomos’ notes. He explained that he relayed the information immediately to Officer Bernardo who included it in the ITO affidavit sworn to obtain the search warrant. Since it was included in the affidavit he did not consider it necessary to add to his notes.

[25] On the voir dire the applicant acknowledged that he told Detective Kalonomos that he would find his personal “weed” in the house, but stated that when Detective Kalonomos told him that they were going to conduct the search he (the applicant) felt threatened because his mother was very ill and was in the house. When asked whether he told Detective Kalonomos that there was also crack in the house, the applicant’s answers were evasive.

[26] The police obtained the search warrant later in the evening of March 28, 2013, and conducted the search that evening. They gained entry with a key provided by the applicant’s wife. They located 28.6 grams of crack cocaine and 644.5 grams of marihuana at the applicant’s residence.

Issues

[27] This voir dire raises the following inter-related issues:

a. Voluntariness;

b. Reasonable and Probable Grounds for Arrest;

c. Right to Counsel;

d. Unreasonable Search and Seizure.

A. Voluntariness

[28] The Crown has the burden of proving beyond a reasonable doubt that any statements made by the accused to persons in authority were made voluntarily: R. v. Oikle, 2000 SCC 38. In this case the accused’s statements can be divided into three statements (see paras. 2 and 3 above): (i) the roadside statement, (ii) the video statement, and (iii) the off-video statement.

The Roadside Statement

[29] As I will explain later, I am of the view that the roadside statement infringed the applicant’s right to counsel and should be excluded on that basis. Accordingly, I do not need to consider whether it was voluntary.

The Video Statement

[30] With respect to the video statement I am satisfied that the police made no threats or offered any inducement or made any promises at any time prior to or during the interactions with the accused. The accused was reminded of his rights to counsel and cautioned at the beginning of the interview, and the interview was conducted only after the accused spoke to duty counsel.

[31] Detective Kalonomos was polite throughout the interview. There was nothing oppressive in his tone or conduct or in the conditions in which the interview took place.

[32] An important point relates to the beginning of the interview when the accused indicates that he does want to speak to his own lawyer, and tells Detective Kalonomos that his brother knows the number. I will consider this issue again under right to counsel of choice, but it is important to note that Detective Kalonomos’ immediate reaction was to state: “I am not gonna take a statement from you if you feel like you haven’t spoken to a lawyer...” At that point it is the accused who starts to ask the detective questions about the trafficking charge, and the detective answers these questions fairly and politely. This develops into a continuation of the interview. It was the accused who initially kept the discussion going at this stage. While Detective Kalonomos used the accused’s questions as an opening to ask his own, that does not make the accused’s statements involuntary as that term has been interpreted by the Supreme Court of Canada in R. v. Oikle and R. v. Singh, 2007 SCC 48.

[33] In R. v. Singh, the Supreme Court of Canada (at paras. 42 – 48) rejected the argument that the police must stop questioning a detainee as soon as he asserts the right to silence. Continued questioning in such circumstances is a legitimate means of police persuasion. Provided the accused was given his right to counsel (an issue I will return to below) it is legitimate for the police to continue to interview an accused despite his assertion that he wishes to remain silent. Should the interviewing officers continue to question a person to the extent that they reduce his operating mind and in effect undermine his right to silence, a statement might not be admissible into evidence. This is not a case, however, in which Detective Kalonomos persistently questioned Mr. Hudson despite his repeated assertions that he wished to remain silent. Mr. Hudson continued to ask questions after Detective Kalonomos offered to end the interview, and it was legitimate for the detective to use the opportunity to ask his own questions.

[34] The accused also asserts that voluntariness is vitiated because Detective Kalonomos engaged in “police trickery” that would “shock the community” (R. v. Oikle at paras 65 – 67) by misleading Mr. Hudson during the interview.

[35] The accused points to three examples of such “trickery”.

[36] During his questioning of Mr. Hudson, Detective Kalonomos’ asserted that the driver of the gold minivan did not have $40 or Air Jordan running shoes on him when he was searched. Detective Kalonomos acknowledged on cross-examination that while he did not see either of those things when he searched the minivan he did not know with certainty whether the driver actually had $40 or the Air Jordan running shoes. He acknowledged that sometimes during an interview of an accused he will say things about the evidence that he does not know 100 percent.

[37] When told that the driver did not have the $40, Mr. Hudson replied: “He didn’t have no money on him? No, don’t tell me that, I gave him the $40 out of my pocket.” When told the driver did not have the running shoes, Mr Hudson replied: “He was supposed to have it”.

[38] The second “trick” was Detective Kalonomos’ assertion that the police would enter the accused’s residence to conduct a search even though the police did not yet have a search warrant. For example, Detective Kalonomos stated: “When we go into your residence with a search warrant will I find any drugs?” The accused answered that the police would find “some weed and that’s it…Like what I smoke.”

[39] The third “trick” was Detective Kalonomos’ question: “Would it shock you to know that drugs were found in his vehicle [the minivan]? Would it surprise you?” In fact the police had not found any drugs in the minivan. The accused answered: “Of course not, not from me, couldn’t be from me.” These interactions are found at pp. 77 – 78 and 96 -97.

[40] None of these questions succeeded in obtaining a confession or incriminating statements from the accused with respect to the charges of trafficking or possession for the purposes of trafficking. Indeed, while Mr. Hudson appeared genuinely upset by the situation in which he found himself, he appeared unfazed by any of these questions.

[41] The Supreme Court of Canada has affirmed that the “common police tactic of gradually revealing (actual or fake) evidence to the detainee in order to demonstrate or exaggerate the strength of the case against him” is an acceptable police tactic (R. v. Sinclair, 2010 SCC 35 at para. 60 (per McLachlin C.J and Charron J.) and para. 83 (per Binnie J.). See also R. v. Oikle at paras. 61 and 100: “[M]erely confronting a suspect with adverse evidence – even exaggerating its accuracy and reliability – will not, standing alone, render a confession involuntary.”

[42] Similarly I do not believe the questions relating to the anticipated search warrant to be either unfair or shocking to the community. The police intended to apply for a warrant, and were successful in obtaining one. Seeking a warrant in such circumstances is a routine part of any drug trafficking investigation. It is not incumbent on the police to advise the detainee of the precise stage of their investigation.

[43] In summary, considering all of the circumstances, Mr. Hudson was treated courteously and with respect in his dealings with the police. There were no threats or promises made by the police. There was no atmosphere of oppression and there was no trickery used which would shock the community. While Mr. Hudson was upset, he never appeared intimidated. The technique of gradually introducing (actual, exaggerated, or non-existent) evidence into the interview is an acceptable police tactic.

The Off-Video Statement

[44] The first complaint about the off-video statement given by the accused on his way back to his cell is that it was off-video.

[45] The Ontario Court of Appeal addressed the obligations of police officers to record their interactions with an accused in R. v. Moore-McFarlane (2001), 56 O.R. (3d) 737. Writing for the Court, Charron J.A. (as she then was) acknowledged, at para. 64, that there is no absolute rule requiring the police to record an accused’s statements. She added the following, at para. 65:

[T]he Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police. That onus may be readily satisfied by the use of audio, or better still, video recording. Indeed, it is my view that where the suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect. In such cases, it will be a matter for the trial judge on the voir dire to determine whether or not a sufficient substitute for an audio or video tape record has been provided to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt.

[46] This principle was affirmed by the Ontario Court of Appeal in R. v. Williams, 2014 ONCA 431 at paras. 43 – 46.

[47] In the present case Detective Kalonomos testified that the walk from the interview room to the cell was approximately 50 feet. There are no audio recordings along this walk. He testified that some suspects speak more freely when they are not being videotaped. He did not know that the grandmother was in the residence at the time, and his recollection now is that she was not in the residence when they conducted the search. Had she been at home he would have been concerned that she might destroy the evidence.

[48] The applicant testified that he did tell Detective Kalonomos that his mother was ill in the house.

[49] Based on the evidence on the voir dire I find that the off-video statement was voluntary. While I accept that Mr. Hudson provided the information out of concern for his mother, there is nothing in the testimony I heard to suggest that Detective Kalonomos made any threats in relation to Mr. Hudson’s mother. There is no evidence that the Detective offered any inducements or promises or made any threats to obtain Mr. Hudson’s off-video statement. While Mr. Hudson testified that he felt threatened, this related to his own concerns about his mother’s ill health and not any threat made to him by any person in authority.

B. Reasonable and Probable Grounds For Arrest

[50] The applicant was arrested by Officer Bernardo following the order of Detective Kalonomos. In giving this order, Detective Kalonomos informed Officer Bernardo that the applicant “leaned in and exchanged something with the driver” of the gold minivan. This statement also appears at pages 5 and 9 in the ITO, which the applicant relies on with respect to the challenge to the validity of the search warrant.

[51] The applicant argues that the police lacked reasonable and probable grounds for the arrest because Detective Kalonomos did not in fact see any “exchange” actually occur when the applicant leaned into the gold minivan on March 28, 2013. On cross-examination Detective Kalonomos acknowledged that he could not see what the applicant did when he leaned into the vehicle. The applicant argues that Officer Bernardo made the arrest on the basis of misinformation.

Analysis

[52] 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 (SCO); and R. v. Tran, 2007 BCCA 491, [2007] B.C.J. No. 2341, 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, [2007] O.J. No. 50, 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.

[53] 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).

[54] 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.

[55] 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 R. v. Merelles, 2016 ONCA 647 (at paras. 26 – 28), R. v. Dhillon (at paras. 31 – 44), R. v. 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 (R. v. Guindon at para. 59).

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

a. Information obtained from a previously reliable confidential informant that provided enough detailed information (the physical description and cell phone number) to enable the police to conduct a targeted investigation;

b. Surveillance by the police observed the suspect in two brief transactions that, based on the experience of the officers involved in the investigation, were indicative of drug transactions;

c. The licence plate check of the Acura involved in the March 27, 2013 transaction revealed that the vehicle was registered to an individual with a criminal record relating to trafficking;

d. The investigation corroborated the information provided by the informant.

[57] The applicant is correct that Detective Kalonomos did not in fact see any “exchange” when the applicant leaned into the minivan. The detective would have been more accurate if he had said that he saw what appeared to be an exchange. Drug transactions frequently occur in automobiles precisely because this shields the actual exchange from public view. It is the brief meeting in the automobile that is indicative of a drug transaction, and “reasonable and probable grounds” in this context does not require the police to actually see the exchange take place.

[58] While not the best or most accurate choice of words, the detective was not deliberately misleading when he advised his colleagues that the applicant “leaned in and exchanged something with the driver”. Given the totality of the circumstances, reasonable and probable grounds did exist because, inter alia, the applicant briefly leaned into the gold minivan, whether or not an actual exchange was observed.

[59] Given that it was Detective Kalonomos who decided that reasonable and probable grounds existed to arrest the applicant, it is immaterial what Officer Bernardo knew when he followed Detective Kalonomos’ order to make the arrest: (R. v. Debot, at para. 49).

C. Right to Counsel

Roadside Statement

[60] As indicated above, the arresting officer testified that the applicant was immediately read his rights to counsel and cautioned by the arresting officer. While the arresting officer made a note that the applicant stated he understood his rights and the caution, the arresting officer did not make a note of whether the applicant asked to speak to counsel, and acknowledged that he has no recollection today what the applicant replied in this regard. The applicant testified at the voir dire that he was not read his rights at this time, and at the very least does not remember being read his right to counsel upon arrest.

[61] The arresting officer questioned the applicant if he used drugs, and noted that the applicant stated that he used crack cocaine and marihuana. When asked if he had any drugs in his residence the applicant answered that he had 0.2 grams of crack cocaine in his kitchen cupboard.

[62] The arresting officer testified that while he has no specific recollection, he believes that the applicant waived his right to counsel – otherwise he would not have asked the applicant any questions.

[63] Given the fact that the applicant did ask to speak to a lawyer only a few minutes later when asked by the transporting officer (see below), I find it unlikely that the applicant would have waived his right to counsel upon arrest. The fact that the arresting officer has no note of the applicant’s answer suggests to me that the applicant initially gave no answer. I am not satisfied that the arresting officer made reasonable efforts to confirm the applicant’s purported waiver of counsel in these circumstances. In such circumstances the arresting officer had an obligation to refrain from eliciting evidence from the applicant until his waiver was confirmed or he was given a reasonable opportunity to consult counsel. Accordingly, I conclude that the statements made to the arresting officer were made in violation of the applicant’s rights under Charter s. 10 (b).

[64] This violation of the applicant’s Charter s. 10(b) rights triggers a s. 24(2) analysis. In my view this was a serious breach of the applicant’s Charter rights. One of the fundamental requirements of Charter s. 10(b) is the duty of the police to refrain from eliciting evidence until the detainee has affirmatively waived the right to counsel or had a reasonable opportunity to retain counsel. This appears to be a rookie mistake by the arresting officer.

[65] The questioning of the applicant before he had a reasonable opportunity to retain counsel had a serious impact on him. The statements he is alleged to have made to the officer were incriminating. In R. v. McGuffie, 2016 ONCA 365, at para. 63, the Ontario Court of Appeal held that “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.” That statement is applicable to the present case, and I conclude that the statements made by the applicant to the arresting officer at the roadside are not admissible.

Video and Off-Video Statement

[66] As indicated above, the applicant was placed in the police car for transport to the station and was again advised that he was being arrested for trafficking and read his rights to counsel and cautioned. At first the applicant did not respond, but the transporting officer was careful to obtain an answer from the applicant and asked “Do you want to speak to a lawyer or not?” The applicant replied: “Yes”. The officer then asked: “Do you have your own lawyer or do you want to speak to a free lawyer?” The applicant replied: “I don’t have a lawyer”. The officer assumed that this meant that the applicant wanted to speak to duty counsel, and arrangements were made at the station for that consultation. He spoke to duty counsel for about 15 minutes.

[67] The applicant contends that he was denied counsel of choice when he told Detective Kalonomos at the beginning of the interview that he was only satisfied with the advice he received from duty counsel “to some extent” and wanted to speak to his own lawyer and that his brother had the lawyer’s number. He takes the position that, in these circumstances, the police had a duty to hold off questioning him until reasonable efforts were made to permit him to consult his own lawyer. If he is correct, all of his video and off-video statements were obtained in violation of his s. 10(b) right to counsel.

[68] My analysis begins with the Supreme Court of Canada’s trilogy of right to counsel cases: R. v. Sinclair, R v. Willier, 2010 SCC 37 and R. v. McCrimmon, 2010 SCC 36.

[69] In R. v. Sinclair the Supreme Court affirmed (at para. 64) that the s. 10(b) right to counsel “is essentially a one-time matter with few recognized exceptions” and that (at para. 65) a request, without more, is not sufficient to “retrigger” the s. 10(b) right to counsel. While the Supreme Court recognized (at para. 49) that the “police are…at liberty to facilitate any number of further consultations with counsel”, it concluded that a second consultation will be required only when there is a change of circumstances. The Court gave three examples of such a change: (i) the use of non-routine procedures like participation in a line-up or submitting to a polygraph, (ii) a change in jeopardy if new charges are added or the investigation takes a new or more serious turn, or (iii) there is reason to believe that a detainee who waived his right to counsel did not understand his initial rights. The Court noted that the categories are not closed, but that “additions to them should be developed only where necessary to ensure that s. 10(b) has achieved its purpose.”

[70] The Court concluded (at para. 55):

The change of circumstances… must be objectively observable in order to trigger additional implementational duties for the police. It is not enough for the accused to assert, after the fact, that he was confused or needed help, absent objective indicators that renewed legal consultation was required to permit him to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do so.

[71] Significantly, the majority of the Court rejected Binnie J.’s position that would give a right to further consultation with counsel (at para. 56) “to include all situations where the detainee reasonably requests this in the course of a custodial interview”. The majority rejected this approach “which would require that questioning be suspended pending a reasonable opportunity to consult further with counsel” because it was not “sufficiently connected to the purpose of ensuring that the detainee remains properly advised about how to exercise his or her rights.”

[72] In R. v. Willier the Supreme Court of Canada considered (para. 24) “the right to counsel of choice under s. 10(b) of the Charter and the corresponding obligations on the police to facilitate that choice”. The Court stated (at para. 33):

Detainees who choose to exercise their s. 10(b) right by contacting a lawyer trigger the implementational duties of the police. These duties require the police to facilitate a reasonable opportunity for the detainee to contact counsel, and to refrain from questioning the detainee until that reasonable opportunity is provided. However, these obligations are contingent upon a detainee’s reasonable diligence in attempting to contact counsel… What constitutes reasonable diligence in the exercise of the right to contact counsel will depend on the context of the particular circumstances as a whole.

[73] The Court explained what would happen if the applicant’s “counsel of choice” was not available within a reasonable amount of time (at para. 34):

Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation… If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended…As Lamer J. emphasized in Ross, diligence must also accompany a detainee’s exercise of the right to counsel of choice…

[74] In R. v. Willier the appellant was unsuccessful in contacting his counsel of choice. The Court concluded (at para. 39) that the appellant had “exercised his right to counsel by opting to speak with Legal Aid”. Significantly, the Court rejected the appellant’s claim that his consultation with duty counsel was inadequate and did not amount to a “meaningful exercise” of his s. 10(b) right. The Court stated (at paras. 40 – 41):

Effectively, his argument implies that the police must ensure that a detainee’s legal advice meets a particular qualitative standard before they are entitled to commence with an investigative interview.

While s. 10(b) requires the police to afford a detainee a reasonable opportunity to contact counsel and to facilitate that contact, it does not require them to monitor the quality of the advice once contact is made. The solicitor-client relationship is one of confidence, premised upon privileged communication. Respect for the integrity of this relationship makes it untenable for the police to be responsible, as arbiters, for monitoring the quality of legal advice received by a detainee. To impose such a duty on the police would be incompatible with the privileged nature of the relationship. The police cannot be required to mandate a particular qualitative standard of advice, nor are they entitled to inquire into the content of the advice provided.

…[U]nless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview. In this case, despite the brevity of Mr. Willier’s conversations with Legal Aid, Mr. Willier gave no indication that these consultations were inadequate. Quite the contrary, he expressed his satisfaction with the legal advice to the interviewing officer, prior to questioning.

[75] In R. v. McCrimmon the Supreme Court applied the principles stated in R. v. Sinclair and R. v. Willier. While the appellant had expressed a preference for speaking with his own lawyer, he opted to speak to a legal aid lawyer when his own lawyer was not immediately available, and expressed satisfaction with the consultation. The Court concluded (at para. 19) that in these circumstances there was no further obligation on the police to hold off the interrogation until the appellant’s own lawyer became available. The Court also concluded (at para. 25) that there were no changed circumstances during the course of the interrogation that required renewed consultation with a lawyer.

[76] Most of the cases I have reviewed are similar to R. v. Willier and R. v. McCrimmon in that duty counsel is the second choice: the detainee initially asks to speak to his own counsel, but after being unsuccessful, settles instead for duty counsel (see also, for example, R. v. Markovic, 2013 ONCJ 300). The present case is somewhat unique because duty counsel was the applicant’s first choice. When asked by the transporting officer if he wanted to speak to a lawyer the applicant replied yes but informed the transporting officer that he did not have his own lawyer. The police quite reasonably contacted duty counsel.

[77] The respondent understood his right to counsel and indicated that he did not have his own lawyer. It was only after the applicant had already exercised his right to counsel of choice by talking to duty counsel that he advised Detective Kalonomos that his brother had the phone number of a different lawyer that he wanted to speak to.

[78] In the voir dire, the applicant testified that he had his own lawyer in mind all along. The unexpressed wish of an accused to speak to counsel of choice initially will obviate a breach based on denial of counsel of choice: R. v. Zoghaib, at para. 1; R. v. Blackett at para. 15.

[79] Unless the applicant’s consultation with duty counsel was somehow deficient, the applicant’s request to speak to a different counsel did not “retrigger” his s. 10(b) right to counsel and he was not denied the right to counsel or the right to counsel of choice. He was denied the right to an additional consultation; a right that the Supreme Court of Canada has held applies only when there has been a change of circumstances.

[80] The applicant alleges that the consultation with duty counsel was deficient and that this is clear from the video-taped interview with Detective Kalonomos in which the applicant asks the detective (in several variations) to explain “what they say is trafficking ?”. Counsel for the applicant contends that even after consultation with duty counsel the applicant did not understand what the term “trafficking” meant and could not understand the nature of the charges against him.

[81] Having reviewed the videotape and the transcript I reject this interpretation of the question asked by the applicant. The applicant clearly knows what the word “trafficking” means; his questions are consistently put as a protestation of his innocence. He is asking what he is alleged to have trafficked because his position is that he went to the bank parking lot to purchase Air Jordan running shoes and was not trafficking anything. Professing innocence is not the same as not understanding the nature of the charge, and does not give rise to a right to an additional consultation with counsel. I am satisfied from my review of the videotaped interview that the applicant understood fully the situation he was in and the nature of the charges against him.

[82] In R. v. Willier the Supreme Court states that if the detainee “diligently and reasonably” indicates that consultation with duty counsel was inadequate the detainee retains the right to an adequate or satisfactory right to counsel (see also R. v. M., W. at para. 13). The cases I have reviewed (see for example R. v. Littleford at para. 8 and R. v. Nagassar, 2010 ONSC 6032 at para. 57) are based on the premise that we inhabit a binary world and the detainee will either be satisfied or unsatisfied with his initial consultation. In the present case the applicant responded that he was satisfied “to some extent”. When examined during the voir dire, he testified that he was “not 100 percent satisfied” with the legal advice from duty counsel.

[83] I don’t read the cases as guaranteeing 100 percent satisfaction. The level of satisfaction is a purely subjective indicator. If 100 percent satisfaction were the standard, the right to second or third consultations would be routine. Such a result is clearly inconsistent with the Supreme Court’s conclusion in R. v. Sinclair (at para. 55) that “objective indicators” are necessary before a renewed legal consultation is required.

[84] When confronted with an ambiguous answer like “to some extent”, it is not clear what the police can do. As indicated in R. v. Willier the police are not required to monitor the quality of legal advice and are not permitted to inquire into the content of the advice provided. There is a presumption, absent evidence to the contrary, that duty counsel provided proper legal advice (R. v. Sinclair at para. 57 and R. v. Winterfield 2010 ONSC 1288, at para. 73).

[85] In R. v. Winterfield, Durno J. held that a detainee challenging the quality of his legal advice must do more than just express dissatisfaction, he must provide a basis upon which he or she is dissatisfied. He stated (at paras. 72 – 75):

At trial, the appellant testified he was displeased with the legal advice he received. He did not say, nor was he ever asked, what it was about the advice that led to his displeasure with it. The conclusory statement that he was dissatisfied is of little assistance to the appellant. He might have been unhappy about being told to provide a breath sample, knowing what he had consumed. It is clear duty counsel told him to do so, and not to answer any questions or do any physical tests.

Where a detainee is dissatisfied with the advice received, it is appropriate to examine the bases of that dissatisfaction in determining if there was a breach and, if so, the seriousness of the breach. This is so because there is a presumption that in the absence of evidence to the contrary, the appellant received proper legal advice: R. v. T.(E.) (1993), 86 C.C.C. (3d) 289 (S.C.C.).

What the appellant is asserting in his trial evidence, without any specifics, is that he did not receive proper legal advice, an allegation of ineffective assistance or the incompetence of counsel. When that occurs, the detainee should provide the bases upon which he or she is dissatisfied with duty counsel. It is difficult to determine if there was a breach, and if so, how serious it was when the only evidence is the conclusory, “I was dissatisfied with the legal advice.”

[86] Again, the evidence in our case is that the applicant was satisfied “to some extent”, but was not 100 percent satisfied. I cannot, on the basis of this evidence, conclude that the applicant’s consultation with duty counsel was deficient or resulted in a breach of his right to counsel under Charter s. 10(b). Nor were there objectively observable signs that the applicant misunderstood the legal advice provided by duty counsel (see: R. v. Sinclair, para. 55; R. v. Gadsden, 2012 ONSC 5948 at paras. 36 – 38).

[87] Accordingly, I conclude that the applicant’s right to counsel was not denied after he spoke to duty counsel, and the statements he made during the videotaped interview and that he is alleged to have made on the way back to his cell off-camera are admissible.

D. Unreasonable Search and Seizure

[88] The applicant has challenged the search warrant issued to search his residence and place of business on the basis that some of the information sworn by the officer to obtain the warrant was either incorrect or inadmissible. On the voir dire the applicant was permitted to cross-examine Detective Kalonomos and Officer Bernardo with respect to the contents of the ITO.

[89] First, the applicant argues that the statement in the ITO that “Dalton Hudson leaned in and exchanged something with the driver” is inaccurate since Detective Kalonomos did not in fact see any “exchange” actually occur when the applicant leaned into the gold minivan on March 28, 2013. On cross-examination Detective Kalonomos acknowledged that he could not see what the applicant did when he leaned into the vehicle.

[90] Second, the applicant argues that the off-video statement is inadmissible because it was made in contravention of his right to counsel under Charter s. 10(b). In particular he challenges the following statement in the ITO:

After Dalton Hudson speaking to duty council he was interviewed by Detective Kalonomos #1035. Dalton Hudson state that in his house located at 21 Coast Ave. in the City of Vaughn he has in the garage ¼ pound of marihuana and in his bedroom in a drawer he stated he had a ¼ ounce of crack cocaine.

[91] This paragraph appears three times in the ITO.

[92] A warrant is presumed to be valid: see R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1, at para. 45, aff’d 2011 SCC 32, [2011] 2 S.C.R. 549, at para. 14. In reviewing the sufficiency of a search warrant, the test is “whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued”: see R. v. Araujo, 2010 SCC 65, [2000] 2 S.C.R. 992, at para. 54; and R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40.

[93] The affiant has a duty to make full, fair and frank disclosure of all material facts to the issuing justice, whether these facts are helpful to or may detract from the ultimate success of the application.

[94] As indicated above, the applicant is correct that the statement that Dalton Hudson “exchanged something with the driver” is inaccurate. The statement should have stated that Dalton Hudson “appeared to exchange something with the driver”. While inaccurate, I do not believe that this error was deliberately misleading. In any event, the statement is inaccurate and must be struck from the ITO, leaving the remainder of the sentence to read:

Dalton Hudson opened the front passenger side door of the gold van and placed the child in the front seat, and then Dalton Hudson leaned in. Dalton Hudson then picked up his child and closed the door.

[95] Even with the reference to an “exchange” struck from the ITO, however, the totality of information remaining is sufficient to authorize the search warrant.

[96] With respect to the alleged off-video statement made to Detective Kalonomos, I have already concluded that the statement was voluntary and that the applicant was not denied his right to counsel prior to making the statement. Accordingly there is no basis to strike it from the ITO.

Conclusion

[97] The Crown’s application to admit the video and off-video statements made by the accused after he consulted with duty counsel is allowed.

[98] The statements made by the accused at the roadside subsequent to his arrest are not admissible.

[99] The accused’s application to invalidate the search warrant based on errors in the ITO is dismissed.

[100] The accused’s application to exclude the video and off-video statements made after he consulted with duty counsel is dismissed.

[101] The accused’s application to exclude all evidence on the basis that there were no reasonable and probable grounds for arrest is dismissed.

Justice R.E. Charney

Released: September 6, 2016

Footnotes

[1] I am advised that the OPP officer was subject to disciplinary proceedings but that charges against him were withdrawn.