Court File and Parties

COURT FILE NO.: CR-11-08295G, CR-11-10878G DATE: 20170210 CORRIGENDA: 20170213

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – SHANG EN WU Defendant

Counsel: Lorelei Amlin and Javier Arvizu, for the Crown Leora Shemesh, for the Defendant

HEARD: December 12, 13, 14, 2016

REVISED RULING ON CHARTER s. 10(b) and s. 24(2) APPLICATION

The text of the original ruling has been corrected with the text of the corrigendum (released today’s date)

Di LUCA J.

[1] The Applicant, Mr. Wu, is charged with possession of MDMA, methamphetamine and ketamine for the purpose of trafficking as well as possession of property obtained by crime over $5,000. He alleges that the police violated his right to counsel following his arrest and he seeks exclusion of evidence seized during the investigation. The Crown concedes that the police violated Mr. Wu’s right to counsel, but maintains that the breach is not as serious as alleged by Mr. Wu and that in the circumstances, the evidence should be nonetheless admitted.

[2] For the reasons that follow, I find that the violation of Mr. Wu’s right to counsel was very serious and I further find that the admission of the evidence would bring the administration of justice into disrepute.

[3] This is Mr. Wu’s second trial on these charges. Ordinarily, the procedural history of a matter has little relevance to the re-trial. In this case, however, the evidence before me warrants a brief re-cap of the history of this case.

[4] Mr. Wu was charged with these offences on September 6, 2011. His matter first came to trial before Gilmore J. in April of 2013. At that time, Mr. Wu brought an application seeking exclusion of evidence on the basis that the police had violated his ss. 8, 9 and 10(b) Charter rights. In a ruling reported at [2013] O.J. No. 2780, Gilmore J. found that the police did not have reasonable and probable grounds to arrest Mr. Wu. She further found a number of deficiencies with the ITO sworn in support of the search warrants. In view of the deficiencies and in combination with the excision of the evidence obtained incident to the unlawful arrest, Gilmore J. found that the warrants were unlawful. In relation to the s. 24(2) analysis, Gilmore J. excluded from evidence the items seized pursuant to the search warrants. The Crown called no further evidence and Mr. Wu was acquitted.

[5] In relation to the s. 10(b) issue, Gilmore J. was troubled by the 11-hour delay in providing Mr. Wu with access to counsel. However, she was comforted by the fact that during this 11-hour period Mr. Wu was not interviewed. She explained:

It should be noted, however, that in this case there was no evidence that Wu gave any statement to police during that time. Indeed he appears to have been quietly cooperative throughout.

D.C. Sparkes gave evidence that he was concerned about the loss or destruction of evidence and specifically illicit drugs and equipment used to produce drugs. While that may be sufficient, it is hard in any case to justify an 11 hour delay in allowing an accused to call counsel.

Had Mr. Wu given any type of statement during that period which the Crown sought to use as an admission against interest, as in Soto, my view of the issue would have been vastly different. (at paras 117-119)

[6] On that basis, Gilmore J. declined to find a violation of s. 10(b). While this issue will be discussed in detail below, Gilmore J.’s comfort was apparently misplaced. Mr. Wu, as it turns out, was interviewed by police while his right to counsel was suspended.

[7] On October 2, 2015, in Reasons reported at 2015 ONCA 667, the Court of Appeal for Ontario allowed an appeal by the Crown and remitted the matter back for a new trial. Gilmore J.’s findings in relation to s. 10(b) were not the subject of comment by the Court of Appeal.

[8] Mr. Wu is now before me for his re-trial. The trial proper is scheduled for three weeks in August 2017. This application was heard over three days in December 2016.

The Evidence Sought to be Excluded

[9] Mr. Wu seeks to exclude the following evidence found during the search at 511-253 South Park Road:

a. 12.3 grams of ketamine; b. 35 pills containing MDMA and methamphetamine; c. 14 kg of “chunky, drying substances” and 8.5 kg of “liquid substances” containing MDMA. It was an agreed fact that these items would yield 1.87 kg of MDMA in completed form; d. 412 grams of MDMA in finished form; e. 20.1 grams of methamphetamine; f. 198 grams of marijuana; g. Several kilograms of cutting agents in multiple bags; h. $42,000 in Canadian currency bundled in a satchel; i. $6,000 in U.S currency; j. 4 cell phones; k. A black nylon backpack containing Mr. Wu’s various pieces of identification; and, l. Male clothing.

[10] Mr. Wu also seeks to exclude the following evidence found during the search at 505-111 Upper Duke Crescent:

a. A baking tray of drying powder containing 33 grams of MDMA; and b. A jug of methyl hydrate, a chemical used in the process of making MDMA.

[11] Additional items of evidence were found during the search of Mr. Wu’s car incident to arrest. These items include 105 grams of a substance believed to be (but ultimately determined not to be) methamphetamine, $2,000 in Canadian currency, keys to the condominium unit at 235 South Park Road and some plastic jugs and glass jars with a chemical smell.

The Evidence on the Application

Detective Constable Shawn Sparkes

[12] At the time of the investigation DC Sparkes was assigned to the Vice and Drug Unit of the York Regional Police. He was the officer in charge of the investigation of Mr. Wu and he is the officer who made the decision to suspend Mr. Wu’s Charter rights following the arrest.

[13] DC Sparkes testified that starting in July 2011, police commenced a two-month investigation into the production of methamphetamine. The investigation started following the seizure of approximately ½ kilogram of freshly produced crystal meth. This investigation led to Mr. Wu and two condominium units in Markham: 235 South Park Road, Unit 511 and 111 Upper Duke Crescent, Unit 505. Mr. Wu was the subject of surveillance for a lengthy period as police attempted to gather evidence and identify his associates.

[14] During the surveillance Mr. Wu was seen attending at both locations and was observed moving boxes of housewares, including bowls and small appliances which could be used for mixing substances. On one occasion, Mr. Wu was observed carrying large weighted boxes which the police believed contained drugs. Mr. Wu was also observed meeting up with individuals whom the police believed were involved in the drug trade. Mr. Wu and his associates were observed carrying and exchanging bags and satchels on various occasions. On another occasion, Mr. Wu was observed attending at a location, both alone and later with an associate, where a vehicle that was involved in the earlier seizure was parked. Mr. Wu was observed looking into the vehicle and checking the doors.

[15] Based on the totality of the observations gathered during the lengthy period of surveillance, DC Sparkes believed that Mr. Wu was involved in the production and trafficking of drugs. Specifically, given Mr. Wu’s various movements and associations, he believed that Mr. Wu was not a simple “cook” in a production scheme but rather was performing some sort of mid-level oversight function.

[16] On September 5, 2011, police observed Mr. Wu pick up a package on Black Cherry Drive in Markham and travel to 253 South Park Road. At approximately 10:56 pm that evening, he was later seen leaving the South Park address and travelling to a bank parking lot where he was joined by an unknown male carrying a green plastic shopping bag. Mr. Wu and the unknown male travelled to the Upper Duke apartment and proceeded to the fifth floor. Police could hear pots banging around from within unit 505 and both Mr. Wu and the unknown male were seen leaving the unit at approximately 12:41 am. Based on these observations, DC Sparkes formed the belief that the unit was being used for the production of drugs.

[17] When they left unit 505, Mr. Wu was carrying a large white bag and the unknown male was still carrying the green plastic bag. Based on the totality of the observation, including the sounds from within the apartment, DC Sparkes believed that the bags contained drugs and/or related paraphernalia.

[18] DC Sparkes observed Mr. Wu and the unknown male enter a vehicle and drive off. He followed the vehicle for a distance and then temporarily lost sight of it. He decided to call for an arrest and the surveillance team soon picked up observations of the suspect vehicle. The arrest was not planned in advance. It was a decision made at the time based on the observations made that day.

[19] Mr. Wu was stopped by plainclothes officers and placed under arrest by Det. Bell. By the time of the arrest, the unknown male was no longer in the vehicle and could not be located. The green bag was also gone. The vehicle was searched incident to arrest and a number of items related to the production of methamphetamine were discovered.

[20] During the arrest, DC Sparkes learned that Mr. Wu didn’t understand English very well and would require the assistance of an interpreter. Arrangements were made to have a Cantonese speaking officer attend at the station where Mr. Wu was to be taken.

[21] According to DC Sparkes, based on the fact that the unknown male who had been with Mr. Wu was now missing, officers were dispatched to 111 Upper Duke Drive, Unit 505 to keep observations on the unit to see if people were coming or going from the unit. The same was not done for the South Park address, as DC Sparkes indicated that he only learned of the specific unit number for the South Park address at 4:10 am from Det. Muir and by then it was too late to secure that premise.

[22] DC Sparkes’ concern was that the unknown male might return to the unit or communicate with someone who was in the unit and that this might lead to the destruction of evidence. DC Sparkes did not believe that they had a “live lab” on the go. However, DC Sparkes was concerned that if someone tried to hastily dismantle a lab or clean up the unit, there would be a risk of danger due to the volatile substances used in the production of methamphetamine. That said, DC Sparkes did not believe that this was an “exigent circumstances” situation. DC Sparkes believed he did not have a basis upon which he could enter and clear the unit and hold it secure pending the arrival of the warrant. DC Sparkes did not contact a “haz mat” team to attend at the unit, nor did he have any safety concerns for the officers posted outside the unit conducting observations. As well, apart from a general safety concern relating to suspected drug labs, DC Sparkes could articulate no safety concern specifically relating to Mr. Wu.

[23] On the basis of his stated concerns, DC Sparkes made the decision to suspend Mr. Wu’s right to counsel. DC Sparkes was concerned that if Mr. Wu spoke to either Duty Counsel or private counsel, counsel might inadvertently notify interested parties who might have a reason to interfere with evidence. The suspension of the right to counsel would, in the circumstances, limit the chance that something would happen to the evidence.

[24] DC Sparkes maintained that the suspension of the right to counsel was not based on any York Regional Police policy but rather was assessed on a case-by-case basis and was not regularly done. In cross-examination, DC Sparkes was taken to his testimony before Gilmore J. where he had confirmed that the suspension of s. 10(b) rights was “a normal process in this type of investigation.” DC Sparkes explained that in drug investigations there are often safety concerns as well as concerns about the destruction of evidence. He agreed that he had no information suggesting a safety concern relating specifically to Mr. Wu such as, for example, information suggesting that Mr. Wu was violent or had access to firearms.

[25] In cross-examination, DC Sparkes confirmed that he did not have “exigent circumstances” justifying a warrantless entry into the unit. In his view, “exigent circumstances” required imminent risk of bodily harm or death, or imminent risk of destruction of evidence. Neither were present in this case.

[26] He confirmed that the risk of destruction of evidence was present in almost all drug cases, but that this did not support the suspension of the right to counsel in every case. He testified, rather candidly, that the practice of suspending the right to counsel has been used less frequently in recent years. He now conducts “a different kind of investigation” so that he is not put in the position of having to suspend Charter rights. He added, “now things are done a little bit differently” and that “we learn and grow as move, as we go on.” That said, he acknowledged that even in 2011, he was aware that the suspension of s.10(b) rights was frowned upon.

The Post-Arrest “Interview”

[27] Once back at the 5 District Station, Mr. Wu was booked and then taken to an interview room by DC Sparkes. At this time, DC Sparkes knew that Mr. Wu had been informed of his right to counsel in Cantonese by another officer, PC Kwan, and he also knew that Mr. Wu wished to speak to counsel.

[28] According to DC Sparkes, he placed Mr. Wu in an interview room because he wanted to inform him of his current jeopardy. His intention was to find out who his counsel was, though Mr. Wu could not recall. DC Sparkes also wanted to tell Mr. Wu that he would get a chance to speak to a lawyer, but not yet as the police were in the process of getting search warrants for the two locations.

[29] While an interview room with recording equipment was available, DC Sparkes chose to place Mr. Wu in a room that had no recording equipment. This was done for no particular reason and apparently “out of habit.”

[30] At Mr. Wu’s first trial, DC Sparkes testified that he did not ask Mr. Wu a single question relating to the investigation during the unrecorded interview. This evidence was not accurate. In fact, it was misleading.

[31] In response to the Charter application, DC Sparkes provided a sworn affidavit dated October 27, 2016, on which he was cross-examined before me. In this affidavit, DC Sparkes asserts at paragraphs J, K and L:

I don’t recall how long I was in the interview room with Mr. Wu but I do recall that it was just a few minutes. Although I testified on April 24, 2013 that I did not ask him any questions about this investigation, this answer was not correct. It was based on my recollection at the time and on my notes and I believed this answer to be true at the time I gave it. However, it was not a thoughtful response as I was ill-prepared for cross-examination on this issue. Given the length of the investigation, it was difficult to recall details of a specific 11-hour period. It was never my intention to mislead the court.

In fact, upon further reflection in preparing to swear this affidavit and reviewing the transcript of my evidence at the previous hearing, I now recall asking Mr. Wu questions in relation to the drugs that were found on his person when he was searched at the station. I also now recall, again upon further reflection, asking Mr. Wu about addresses. I cannot, even now, recall what specifically I asked him in this regard or the context of this questioning.

I was aware that any statement he made could not be used as evidence against him or to further the investigation and it wasn’t my intention to do so. Although I do not remember specifically, there is nothing in my notes to indicate that Mr. Wu provided any information in response to my questions.

[32] In his viva voce evidence before me, DC Sparkes confirmed that he now recalled asking Mr. Wu some questions about the investigation after putting him in the interview room. While it was not his intention to obtain evidence which he knew he could not use, his curiosity got the best of him and he asked some questions. He asked Mr. Wu about the drugs found on his person subsequent to arrest. He also asked some questions about an address, but not specifics. He was in the interview room with Mr. Wu for a period of “minutes.” Once he left the interview room, he resumed the task of preparing the search warrants.

[33] In relation to his evidence before Gilmore J., DC Sparkes explained that he had only prepared to testify about the search and seizure issues. He had not properly turned his mind to the right to counsel issue and indeed was taken by surprise when he was recalled to testify about it. He explained that he was ill-prepared and the answers he gave were what he recalled at that time. However, upon reflection and after reviewing the transcripts of the prior proceedings, his memory was jogged and he now recalled asking Mr. Wu questions relating to the investigation during this interview.

[34] DC Sparkes offered an apology and indicated that it was never his intention to mislead Gilmore J.

[35] In cross-examination, DC Sparkes described how he prepared to testify at the first trial. He indicated that he reviewed his notes, the search warrant affidavit and supporting material. He had not reviewed the Charter application filed by Mr. Wu, but knew there was a challenge based on insufficient grounds for arrest. DC Sparkes further indicated that he knew the right to counsel was an issue, but the Crown had not told him the specifics of the s. 10(b) challenge, just that it was an issue. He was unprepared to testify on the issue and simply forgot that he asked Mr. Wu questions following the suspension of the s. 10(b) right.

[36] DC Sparkes confirmed that he reviewed Gilmore J.’s decision when it was released and further confirmed that he specifically read the passage where Gilmore J. accepted his testimony that Mr. Wu was not questioned during the period when his rights were suspended. The ruling did not jog his memory.

[37] In terms of preparing for the re-trial, DC Sparkes confirmed that he was made aware that a new s. 10(b) challenge was going to be raised, but he did not review the Charter materials filed by the defence. He met with the Crown to prepare and was asked to think about the time period when Mr. Wu’s s. 10(b) rights were suspended. It was during a meeting with Crown counsel to prepare his affidavit that he finally remembered the fact that he asked Mr. Wu questions about the investigation.

[38] DC Sparkes was cross-examined on the veracity of his testimony at the first trial. The following portion of his testimony before Gilmore J. was put to him:

Q. Okay. And so the possibility existed for him to be in a video monitored room? A. Yes. Q. Okay. And he’s in there with you and you’re saying that the only thing that you said to him is these are your charges and you’ll speak to counsel later? A. Yes. Q. Why does he need to be in a room at all? Why not go down to the cell block and tell him that? Why place him in an interview room at all? A. Yeah. Q. Right? A. I could have, yeah. Q. Okay. A. I could have. Q. I’m going to suggest to you that you don’t because you are still gathering evidence… A. That’s not…. Q. …and you’re a detective and that’s what you do. A. That’s not true. Q. And I’m also going to suggest to you that you put him in the interview room because you are still prepping your warrants. You haven’t completed your search warrants… A. No. Q….and now you have…. A…I haven’t Q. …your target in an interview room that’s not monitored and you’re going to tell me you didn’t ask him one question about this investigation… A. Not until…. Q. …not one? A. …not until after he spoke with counsel.

[39] DC Sparkes was challenged on his assertion that when he was before Gilmore J. he did not have a memory of having asked Mr. Wu any questions about the investigation. It was pointed out to him that rather than testifying that he could not remember having asked questions, which may have been truthful, he offered a definitive response in the negative, which was false. DC Sparkes maintained that the lack of any notes on the issue and the lack of preparation for his testimony led him to provide inaccurate testimony.

[40] When pressed on the details of his questioning, DC Sparkes recalled asking Mr. Wu about the drugs that were found on him, but had no recollection of asking him about an address the police were interested in. The interview was not recorded on video or audio, nor was it memorialized in any officer’s notes.

The Decision to end the suspension of s. 10(b) rights

[41] DC Sparkes testified that he worked through the night typing the information to obtain the search warrant. While the investigation had been ongoing for some time and DC Sparkes had a chronology started, it was not up to date and required a significant amount of work to make it complete and accurate. He described his efforts on the search warrant as starting “almost from scratch.” At 7:24 am, the task of drafting the search warrant was complete and the warrant request was submitted to the telewarrant centre. His submission noted that the request was urgent. At 8:53 am, the search warrant was authorized and DC Sparkes and his team headed to 111 Upper Duke Drive. The search team was in the unit for approximately 10 minutes and then they moved over to 235 South Park Road arriving at 10:16 am. Once the units were cleared, a synthetic drug lab team was called in to safely complete the search of the units. At approximately 11:00 am, DC Sparkes left the scene and returned to the 5 District Station.

[42] At 11:22 am, DC Sparkes arrived at the station and had Mr. Wu brought back into an interview room so that he could now facilitate contact with counsel. At 11:30 am, DC Sparkes contacted Duty Counsel and indicated that he required a Cantonese-speaking lawyer. At 11:44 am, Duty Counsel returned the call and provided contact information for a Cantonese-speaking lawyer, Mr. Edward Hung. At 11:55 am, DC Sparkes spoke with Mr. Hung and provided some information regarding the charges Mr. Wu was facing. At 11:58 am, DC Sparkes put Mr. Hung through to the telephone in the interview room where Mr. Wu was being held.

[43] In cross-examination, DC Sparkes offered that he could have put Mr. Wu in touch with counsel once the search team had cleared the second unit at approximately 10:18 am. He conceded that in hindsight, he should have called the station and instructed a colleague to put Mr. Wu in touch with counsel rather than waiting to personally return to the station.

[44] DC Sparkes was then asked some questions about the actual call between counsel, Mr. Hung, and Mr. Wu. DC Sparkes testified that he put the call through to Mr. Wu but he had no notes regarding how long the call lasted. When asked whether he had a specific recollection of Mr. Wu speaking with counsel, DC Sparkes paused for a few moments, reviewed his notes, and indicated that he had no notation of Mr. Wu taking the transferred call with duty counsel. When pushed further, he conceded that he had no independent recollection of whether Mr. Wu ever spoke to counsel. He also had no notation or recollection regarding whether Mr. Wu was satisfied with the advice he received. While he expected that the call from counsel was put through, he did not ask Mr. Wu whether that was in fact the case. As will be discussed in detail below, DC Sparkes was openly and obviously troubled by his inability to recall what steps, if any, were taken to ascertain whether Mr. Wu was ever put in touch with counsel. DC Sparkes accepted responsibility for the failing in his testimony and in his conduct.

[45] Following what he believed to be Mr. Wu’s call with counsel, DC Sparkes conducted a further brief interview of Mr. Wu, asking him to reveal the name of a male seen with him during police surveillance. DC Sparkes testified that this further interview was also not recorded. It took place at approximately 1:28 pm and Mr. Wu had to be taken to Court for 2:00 pm, so there was insufficient time for a videotaped interview.

[46] DC Sparkes was re-called to testify at the completion of the evidence on this application. The subject of his further evidence related to the videotaped statement of Truong Hai Minh. The videotape, which through no fault of the Crown, was disclosed to the defence during the application, was taken on the day of Mr. Wu’s arrest.

[47] Mr. Truong was arrested for possession of substances suspected to be heroin at the South Park address. Once back at the station, he was interviewed on video by DC Sparkes. A monitor, Officer Ly, observed the interview and took notes. The interview centered around gathering intelligence on Mr. Wu. DC Sparkes wanted Mr. Truong to view a photo of Mr. Wu and provide a telephone number for him as well. Mr. Truong eventually identified Mr. Wu’s photo and the interview came to an end.

[48] During the interview, Mr. Truong was reminded of his right to counsel. Mr. Truong’s response was “not yet.” A brief but incomplete caution was provided. When asked about the video in his testimony, DC Sparkes acknowledged that he should have done a better job with the rights to counsel and caution and agreed that he made mistakes. He was eager to get information about Mr. Wu and the investigation, and he wanted it quickly. Interestingly, following the videotaped interview, Mr. Truong was moved out of the monitored interview room and into the same interview room that Mr. Wu had been taken to, which was not set up for recording. In this room, DC Sparkes had a further discussion with Mr. Truong regarding the trace amount of drugs found on him and then told him he wouldn’t be charged and released him.

[49] DC Sparkes offered that at the time “things” were done differently. In 2011, though he had been a police officer for seven years, he was new to the drug and vice squad and he was inexperienced in terms of video recording statements and properly giving and documenting cautions and rights to counsel.

[50] DC Sparkes was asked to explain why he conducted the interview of Mr. Truong on video, but not the interview of Mr. Wu. He replied that while he had the time to do the video statement with Mr. Truong, he did not have the time to set up the video recording equipment for Mr. Wu as he had to take him to Court. This response addressed the second interview of Mr. Wu, but not the first.

[51] Due to his lack of experience, DC Sparkes did not foresee the lack of a video recording as being an issue. DC Sparkes was challenged on his claim of inexperience as he appeared to take some precautions with Mr. Truong but none with Mr. Wu. He acknowledged that having suspended Mr. Wu’s right to counsel he should have taken better steps to document what happened.

[52] He denied that he had been attempting to gather intelligence from Mr. Wu and that this was his real purpose for putting Mr. Wu in an interview room that was not recorded.

PC Michael Kwan

[53] The evidence of PC Kwan was tendered on agreement in transcript form taken from the first trial in this matter. At that trial, PC Kwan testified after DC Sparkes.

[54] In brief, PC Kwan testified that on the night of Mr. Wu’s arrest, he was asked to assist by providing Cantonese translation services. He arrived at the station at approximately 1:14 am, having received the call at 1:09 am. At that time, he went to the booking area where Mr. Wu was being processed. He informed Mr. Wu of his right to counsel and cautioned him in Cantonese, which Mr. Wu indicated he understood. The right to counsel was provided at 1:19 am and the caution at 1:20 am.

[55] According to PC Kwan, Mr. Wu indicated that he wished to speak with lawyer, though he could not remember the lawyer’s name. PC Kwan did not attempt to facilitate access to counsel. Rather, he passed on Mr. Wu’s request to DC Sparkes. According to PC Kwan, it would have been DC Sparkes’ obligation as officer-in-charge of the matter to make arrangement for access to counsel.

[56] PC Kwan indicated that following the booking procedure, Mr. Wu was taken into an interview room, where DC Sparkes spoke with him. PC Kwan was present for this discussion and helped interpret. According to PC Kwan, he could not remember the extent of the conversation, noting “it was not a formal interview.” PC Kwan took no notes of what was said in the interview room and could recall no details of the questions asked or answers provided.

[57] PC Kwan could not recall how long he was in the interview room with Mr. Wu and DC Sparkes, though the next entry in his notes was at 3:30 am. When asked what he did between 1:20 am and 3:30 am, PC Kwan recalled that he “assisted Detective Constable [sic] with speaking with Mr. Wu and then after that I had to complete my own notes.”

[58] PC Kwan noted that the interview room was not a monitored interview room. While the station has interview rooms that permit monitoring, Mr. Wu was not placed in one of those interview rooms. Rather, he was placed in one of the rooms used to put people in communication with duty counsel.

[59] PC Kwan agreed that he would have obtained background biographical information on Mr. Wu during the booking process, prior to Mr. Wu being placed in the interview room.

Staff Sergeant Andrew Bell

[60] Staff Sgt. Bell was the arresting officer. He testified that at 12:49 am on September 6, 2011, he participated in the traffic stop of Mr. Wu’s vehicle. He arrested Mr. Wu by opening the driver’s door of the vehicle and taking physical control of him. He read the right to counsel to Mr. Wu from the back of his memo book. He noted that Mr. Wu had trouble with the English language and that his responses were in broken English. Nonetheless, Mr. Wu managed to convey that he had a lawyer that he wished to speak to.

[61] According to Staff Sgt. Bell, the decision to suspend the right to counsel was made at the scene of the arrest. It was a decision discussed and made by him and DC Sparkes, though other officers may have been present. They decided that they did not want any information about the arrest of Mr. Wu going beyond their immediate control. Staff Sgt. Bell indicated that he had an issue with permitting the call to counsel as he “did not know who the lawyer may or may not be” and therefore had a concern about where the information “might land.” There was also a concern that the lawyer contacted might inadvertently alert someone about the arrest. The concern was based on the fact that the unknown male who had been seen with Mr. Wu was missing. In view of his belief that they were investigating a high dollar value drug operation, Staff Sgt. Bell had concerns about weapons and officer safety as well as concerns about the destruction of evidence. He also had safety concerns relating to the potential rapid dismantling of the lab.

[62] In cross-examination, Staff Sgt. Bell agreed that his safety concern with respect to weapons was not particularized to Mr. Wu. Despite the lengthy investigation, the police had no indication that Mr. Wu was involved in violence or weapons. In relation to the decision to suspend Mr. Wu’s right to counsel, Staff Sgt. Bell confirmed that the arrest of Mr. Wu had been unplanned. The ideal scenario is to have the search warrants prepared in advance of an arrest. However, in this case, Staff Sgt. Bell was aware that DC Sparkes had yet to draft the warrant.

[63] Staff Sgt. Bell was asked about his stated concerns about officer safety. He confirmed that when he attended at the Upper Duke unit he did not convey any security concerns to the officers tasked with maintaining observations on the unit pending arrival of the warrant, though he indicated that these officers were not standing right outside the unit but were conducting observations from some unspecified distance. He also did not instruct anyone to enter and secure the unit pending the arrival of the warrant, though he understood that he could do so in exigent circumstances.

[64] Staff Sgt. Bell was also cross-examined and re-examined on his knowledge of the unit number at the South Park address and in particular whether and when he learned that Mr. Wu was associated with Unit 511 at that address. While his recollection was not entirely clear, Staff Sgt. Bell indicated that he learned of the unit number at the briefing on September 5, 2011 and that it was not a surprise.

Detective Constable Aaron Ladouceur

[65] DC Ladouceur participated in the arrest of Mr. Wu. He recalled assisting Staff Sgt. Bell with the arrest by entering Mr. Wu’s car from the passenger side, placing the vehicle in park and placing a hand cuff on Mr. Wu’s arm. Once Mr. Wu was removed from the vehicle, DC Ladouceur searched the vehicle incident to arrest.

[66] Later that evening, DC Ladouceur was tasked by Officer Muir to attend at 111 Upper Duke, Unit 505, along with Officer Sidenberg to “maintain continuity” of the apartment unit in order to “preserve evidence.” They positioned themselves where they could surreptitiously observe the front door of the unit. DC Ladouceur remained at his observation point for over eight hours and no one was observed entering or leaving the unit. DC Ladouceur made a note that from his vantage point he could not detect any odours coming from the unit, though upon entry after the warrant was obtained, he noted a strong chemical smell.

[67] DC Ladouceur was also questioned on when he learned that unit 511 of 235 South Park Road was linked to the investigation. He could not recall when he received this information, though it appeared in his notes under the summary of the briefing on September 5, 2011. He denied conferring with DC Sparkes on this point and specifically denied any suggestion that DC Sparkes told him not to admit that he knew of unit 511 prior to arrest of Mr. Wu.

The Applicant, Mr. Wu

[68] Mr. Wu testified with the assistance of an interpreter. English is not his first language and he generally converses in his native language, Cantonese.

[69] On the evening of his arrest, Mr. Wu was driving his vehicle when another vehicle blocked his movement. He observed a person get out of the car, with a gun in his hand, telling him not to move. This person was wearing a vest with the word “Police” on it. Another individual entered Mr. Wu’s vehicle from the passenger side.

[70] Mr. Wu was pulled from the vehicle and the vehicle was searched. According to Mr. Wu, no one said anything to him at the scene of his arrest. He was not given the reason for his arrest nor was he advised of his right to counsel. He was then taken to the police station where he met with an officer who spoke Cantonese. He recalled that DC Sparkes was present when he spoke with the Cantonese speaking officer, though he could not remember the details of the conversation. He did recall DC Sparkes asking him whether he had any other “address or another place.” He also recalled DC Sparkes coming to speak with a second time, again asking about an address.

[71] At the time of this discussion, he had not spoken to a lawyer, though he had asked to speak with family members including his elder sister. His evidence on whether he asked to speak to counsel was not entirely clear. He claimed that he asked the Cantonese speaking officer to speak with a lawyer. However, he did not ask DC Sparkes to speak with a lawyer nor did DC Sparkes mention anything about a lawyer. He was afraid to speak out while in police custody. No one explained to him that his right to counsel had been suspended.

[72] At no time did Mr. Wu use a telephone. He did not speak with any counsel while at the station and specifically did not speak with Mr. Hung. The first time he spoke with counsel following his arrest was upon his arrival in bail court the following afternoon.

Bail Proceedings

[73] A transcript of Mr. Wu’s appearance in bail court on the afternoon of September 6, 2011, was tendered into evidence before me. That transcript reveals that Mr. Wu was assisted by an interpreter and asked to have the charges read to him in court. After the charges were read out and the Crown indicated that there were no sureties present, Mr. Wu commented “Nobody asked me to contact a surety and I don’t have an opportunity to use a phone.”

[74] Mr. Wu testified that he made these comments because he had not been given access to a telephone following his arrest and did not understand the charges he was facing. In cross-examination, Mr. Wu explained that he actually understood that he would need someone to come to court to act as a surety and that this was explained to him by an officer who came to speak to him in the cells of the police station.

The Legal Principles

[75] Section 10(b) of the Canadian Charter of Rights and Freedoms guarantees that upon arrest or detention every person shall have the right to retain and instruct counsel without delay. The rationale for the right was discussed by the Supreme Court of Canada in R. v. Suberu, 2009 SCC 33, at para 42:

[T]he purpose of s. 10(b) is to ensure that individuals know of their right to counsel and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.

[76] The right to counsel is broken down into informational and implementational components. The informational component requires that the police advise the detainee of his or her right to retain and instruct counsel without delay and that the detainee be advised of the existence of Legal Aid and duty counsel. The implementational component requires that the police provide a detainee with a reasonable opportunity to exercise the right to counsel and that the police refrain from eliciting evidence from the detainee until he or she has had a reasonable opportunity to exercise the right to counsel: see R. v. Bartle, (1994), 92 C.C.C. (3d) 289 at 301 (S.C.C.).

[77] The case law has recognized that the implementational duties can be delayed in circumstances of urgency or danger. The genesis of the authority to delay the implementational component of the right to counsel is found in R. v. Strachan at para 34, where Chief Justice Dickson found that a two-hour delay was justified in a case where police were executing a search warrant at home where guns might be present. He explained:

The combination of an arrest in the accused’s home, the presence of two unknown people, and the knowledge that two restricted weapons were in the apartment, was a potentially volatile situation. It is true that the accused had the proper registration permits for the weapons, but, notwithstanding, the possibility of their use was a serious matter for a police officer to consider while taking a person into custody. In my opinion, Constable Bisceglia was justified in preventing any new factors from entering the situation until some of the unknowns had been clarified. Thus I would say that the violation of s. 10(b) did not occur when Constable Bisceglia initially prevented the appellant from telephoning his counsel. But once the accused had been arrested, the weapons located, and the other two people had left, the police were clearly in control and there was no reason why they should not have allowed the appellant to telephone a lawyer. I would hold that the denial of counsel began at that point.

[78] The assessment of whether a delay or suspension of the right to counsel is justified involves a fact specific contextual determination. The case law on this issue reveals some general guiding principles that provide a framework for this assessment:

a. The suspension of the right to counsel is an exceptional step that should only be undertaken in cases where urgent and dangerous circumstances arise or where there are concerns for officer or public safety. Effectively, the right to counsel should not be suspended unless exigent circumstances exist: see R. v. Bartle, at p. 19; R. v. Suberu, at para. 42; and R. v. Learning, 2010 ONSC 3816 at para. 75. b. There is no closed list of scenarios where a delay or suspension of the right to counsel is justified. However, the following general categories emerge from the case law: i. Cases where there are safety concerns for the police, see R. v. Grant, 2015 ONSC 1646 at para. 107, R. v. J.J., 2010 ONSC 735 at paras 276-8, and R. v. Learning, at para. 75; ii. Cases where there are safety concerns for the public, see R. v. Thind, 2011 ONSC 2054 at paras. 113-15 and 122; iii. Cases where there safety concerns for the accused, see R. v. Strehl at para. 4; iv. Cases where there are medical concerns, see R. v. Willier, 2010 SCC 37 at para. 8 and R. v. Taylor, 2014 SCC 50 at para. 31; v. Cases where there is a risk of destruction of evidence and/or an impact on an ongoing investigation, see R. v. Rover, 2016 ONSC 4795 at para. 66 and 70, R. v. Kiloh, 2003 BCSC 209 at para. 15 and 38, and R. v. Salmon, 2012 ONSC 1553 at para. 92; and, vi. Cases where practical considerations such as lack of privacy, the need for an interpreter or an arrest at a location that has no telephone access justify some period of delay, see R. v. J.(K.W.), 2012 NWTCA 3 at para. 29-30, and R. v. Khairi, 2012 ONSC 5549. c. The right to counsel cannot be suspended simply on the basis that a search warrant is pending, see R. v. Soto, 2010 ONSC 1734 at para. 69, and R. v. Liew and Yu, 2012 ONSC 1826 at para.70. d. A general or bald assertion of “officer safety” or “destruction of evidence” concerns will not justify a suspension of the right to counsel, see R. v. Patterson, 2006 BCCA 24 at para 41-42, and R. v. Proulx, 2016 ONCJ 352 at para.47. e. Police officers considering whether circumstances justify suspending the right to counsel must conduct a case by case assessment aided by their training and experience. A policy or practice routinely or categorically permitting the suspension of the right to counsel in certain types of investigations is inappropriate. f. The suspension of the right must be only for so long as is reasonably necessary, see: R. v. Mazza, 2016 ONSC 5581, at para. 83. In this regard, the police should be vigilant to ensure that once the decision has been made to suspend the right to counsel, steps are taken to review the matter on a continual basis. The suspension is not meant to be permanent or convenient. The police must still comply with the implementational component as soon as circumstances reasonably permit. A decision to suspend rights that is initially justifiable may no longer be justified if the police subsequently fail to take adequate steps to ensure that the suspension is as limited as is required in the circumstances. g. The longer the delay, the greater the need for justification. The right to counsel must be given “without delay.” The case law addressing the length of time the right to counsel has been suspended has examined periods of time as short as several minutes up to an extreme example of a suspension of the right to counsel for a period of approximately 26 hours; see Blakely v. Parker. In the latter case, the police were executing a warrant to seize multiple firearms from a known violent family and the target of the search was known to be part of a criminal organization that was willing to confront and shoot police. h. The suspension of the right to counsel must be communicated to the detainee, see: R. v. Rover, 2016 ONSC 4785 at para. 70.

Analysis and Findings

[79] The Crown takes the position that the initial suspension of Mr. Wu’s s. 10(b) rights was appropriate in the circumstances of this case. However, the Crown concedes that the police violated Mr. Wu’s rights in two separate but interrelated ways. First, the Crown concedes that the police should not have interviewed Mr. Wu during the time frame when his rights were suspended. Second, the Crown concedes that the police should not have continued the suspension of Mr. Wu’s rights following the decision to interview him. The Crown does not accept that Mr. Wu never spoke to counsel.

[80] The defence argues that Mr. Wu’s s. 10(b) rights were violated in three ways: (1) the decision to suspend the rights initially was based on nothing more than a general concern about the destruction of evidence and officer safety that was belied by the specific facts of this case; (2) the police violated Mr. Wu’s rights when they decided to interview him during the period when his rights were suspended; and, (3) Mr. Wu was never ultimately placed in contact with counsel. These violations are made all the more serious when viewed in the context of DC Sparkes’ testimony before Gilmore J. and DC Sparkes’ conduct as at it related to the interview of Mr. Truong.

[81] I will address each alleged violation in turn, but will start with some general findings on credibility and reliability. I note at the outset that I am assessing the alleged Charter violations on a balance of probabilities standard. I do not need to be convinced beyond a reasonable doubt that Mr. Wu’s Charter rights were violated.

[82] The assessment of DC Sparkes’ credibility presents a challenge. He testified before me in a very candid and forthright manner. He gave objectively fair evidence in relation to his basis for suspending the right to counsel. He admitted several mistakes and failings in relation to his treatment of the right to counsel issue. He did not get argumentative or defensive in cross-examination. He also accepted responsibility and apologized for having proffered misleading evidence before Gilmore J. These were all features of evidence that enhanced his credibility.

[83] However, there are aspects of his evidence that leave me concerned. His explanation for why he proffered the misleading testimony before Gilmore J. left me unsatisfied. His explanation for why Mr. Wu was interviewed in a non-video monitored room while Mr. Truong was put on video also left me unsatisfied. Lastly, his answers in cross-examination about how it is that he came to remember that he in fact interviewed Mr. Wu raised significant concerns.

[84] I also have reliability concerns regarding his evidence. In particular, the absence of contemporaneous notes or audio/video recordings on key issues relating to the interview of Mr. Wu when his rights were suspended and in relation to the ultimate implementation of the right to counsel raise significant questions about what, in fact, actually happened. DC Sparkes’ recollection was unclear, incomplete, and at times admittedly absent.

[85] A theme of DC Sparkes’ testimony was that “things were done differently” back in 2011 and that if he were presented with the same investigation now, different choices would have been made regarding the suspension of the right to counsel and the documenting and memorializing of the interaction with Mr. Wu.

[86] I accept DC Sparkes’ testimony that he would do things differently now. However, I am not entirely satisfied that I have the entire picture as to what happened following Mr. Wu’s arrest. I will comment more on this issue below.

[87] As for Mr. Wu, I find that he was a generally unreliable witness. He was a difficult witness to follow and presented, especially in cross-examination, as being not entirely forthcoming with his evidence. His recollection was vague at times and surprisingly precise at others. His description of his arrest seemed exaggerated to support the alleged misconduct by the police, in particular the brandishing of firearms. His evidence on other key points also seemed exaggerated for effect. For example, his testimony that there was no phone in the interview room where he was held was a convenient recollection, in view of his testimony that he never spoke to counsel on the telephone. Further, his claim that no one ever told him he had the right to speak to counsel and no one ever told him the reason for his arrest seemed contrived in support of the application. His answers to many questions appeared calculated to thwart the cross-examination rather than assist at getting to the truth. Even accounting for the difficulty of testifying in a different language with the assistance of an interpreter, I find that Mr. Wu’s testimony lacked clarity, perhaps intentionally so.

[88] That said, there are aspects of Mr. Wu’s testimony that I do accept. In particular, I accept that he wanted to speak to a lawyer and indicated as much at some point following his arrest. While he denied indicating this fact while at the roadside, I accept Staff Sgt. Bell’s testimony that this is likely when it first happened. I also accept that Mr. Wu has a limited understanding of the English language and required the assistance of an interpreter in order to properly understand his rights and in order to communicate. Most importantly, I accept that it is likely that Mr. Wu never actually spoke to a lawyer until he was taken to bail court the following day. On this final issue, I must stress that Mr Wu’s evidence alone on this issue did not satisfy me. Indeed, but for the testimony of DC Sparkes’ on this issue, I would have been inclined to view Mr. Wu’s evidence on this point as a further example of exaggeration.

The Initial Suspension of the Right to Counsel

[89] I find that while the police may have been justified in briefly suspending the right to counsel in the circumstances of this case, that justification dissipated quickly.

[90] The police were dealing with what they believed was a relatively sophisticated drug operation and they had lost track of one of the parties involved. There was a legitimate concern regarding the potential destruction of evidence. However, this concern was addressed when officers were dispatched to the Upper Duke Crescent apartment to monitor the comings and goings at Unit 505. If the officers conducting that surveillance observed or overheard anything that suggested that the destruction of evidence was imminent, they would have been authorized to act accordingly. In relation to the second apartment, DC Sparkes’ testimony was that he did not learn the specific apartment number until 4:10 am and that by then it was too late to be concerned about the destruction of evidence at that location. In any event, officers could have also been dispatched to this location to monitor the address. On this point, I note that the evidence of Staff Sgt. Bell and PC Ladouceur seemed to support the finding that the police knew of the precise apartment number at 235 South Park Road as early as a briefing that occurred on September 5, prior to Mr. Wu’s arrest.

[91] The concern raised regarding Duty Counsel inadvertently “tipping off” associates of the accused resulting in the destruction of evidence is problematic. While it is true that as a result of a call from Duty Counsel, an associate of a detainee may learn of a detainee’s arrest and may take steps to destroy evidence, this concern is often general or categorical in nature and therefore, in the absence of case specific evidence, adds little to the justification for a suspension of s. 10(b). If it were otherwise, this concern would routinely justify the suspension of s. 10(b) rights.

[92] In terms of the officer safety concerns, I find that apart from a generalized safety concern given the nature of the drug investigation, there was no specific basis upon which a particularized officer safety concern justifying the suspension of a Charter right could be based. The police did not believe they were dealing with a live lab that presented a significant safety hazard. They did not evacuate the building or notify anyone, including the officers posted to monitor the Upper Duke Crescent unit, that there was a safety risk given their proximity. They also had no specific concerns about Mr. Wu and whether he had access to weapons or was otherwise violent. On the whole, I find that the officer safety concerns in this case were generic and not case specific. If these concerns were permitted to justify the suspension of a Charter right, it would effectively mean that the right to counsel would be routinely suspended in drug investigation cases of this nature.

[93] This was not a case of exigent circumstances. DC Sparkes was clear in his evidence that while he had officer safety and evidence destruction concerns, those concerns did not amount to exigent circumstances.

[94] I find that the main reason why Mr. Wu’s rights were suspended for 11 hours was because immediately after the arrest, DC Sparkes’ focus turned to drafting the search warrant for the apartments. Notwithstanding the length of the investigation, the arrest was unplanned. DC Sparkes did not have search warrant materials prepared. Indeed, he testified that he started the search warrant “essentially from scratch.” I accept that DC Sparkes worked diligently through the night to complete the search warrant affidavit, but that is simply not a justification for the continued suspension of Mr. Wu’s rights. At best, it is a convenience.

[95] Regrettably, at no point did DC Sparkes re-assess the initial suspension of Mr. Wu’s rights against the time it was taking to draft the search warrant and the steps taken to place the Upper Duke unit under surveillance. While this failure to re-assess the suspension might have been understandable at the one or two hour mark, the passage of 11 hours is unacceptable.

[96] On the whole of the evidence, I am satisfied that suspension of Mr. Wu’s right to counsel was no longer justified once the police had surveillance of the Upper Duke unit in place.

The “Interview” During the Period of Suspension

[97] Mr. Wu should not have been interviewed while his rights to counsel were suspended. This interview is a significantly aggravating feature of the s. 10(b) violation in this case. I say so for a number of reasons.

[98] First, I find the police made a deliberate choice to place Mr. Wu in an interview room that did not have video-taping capability. The unfolding of events in relation to Mr. Truong put the lie to any suggestion that Mr. Wu’s placement in the unmonitored room occurred simply “out of habit” and for no specific purpose. Mr. Truong was interviewed on video in one interview room and then transferred to second interview room where further discussions were held and he was released without charge. I infer from this that the police wanted only some of their interactions with Mr. Truong captured on video. I also infer that the police wanted none of their interaction with Mr. Wu captured on video.

[99] Second, the absence of a video tape and contemporaneous monitor notes deprives the court of the ability to fairly and reliably assess what happened during this interview. While Mr. Wu’s memory of what was asked of him during the interview was not entirely helpful either, I am satisfied that DC Sparkes asked him questions relating to the investigation. I do not accept that these questions were asked “out of curiosity” and with the knowledge that they could not be used against Mr. Wu in court. I suspect that what was happening was that the police were testing the waters from an intelligence perspective to see if Mr. Wu might be willing to provide helpful information. In my view, while this type of discussion in not improper, it is not a discussion that should have occurred while Mr. Wu was detained without access to legal advice.

[100] Third, and most importantly, DC Sparkes misled the court at Mr. Wu’s first trial on this issue. His testimony before Gilmore J. was categorical. Not a single question about the investigation was asked. DC Sparkes only went to the room to explain Mr. Wu’s rights to him and to advise him that those rights would be suspended. This evidence was not accurate. It misled Gilmore J., who relied on it to dismiss the s. 10(b) claim.

[101] I accept DC Sparkes’ apology, but I have trouble accepting his explanation that a lack of preparation and inexperience led him to offer the misleading testimony. I also have difficulty accepting that he only remembered the interview several years later when preparing for this re-trial. The more likely scenario is that at some point DC Sparkes learned of PC Kwan’s testimony and the fact that it contradicted his evidence given when he was recalled to testify at the first trial. Upon making this discovery, DC Sparkes, as defence counsel suggested, decided to “come clean.” In any event, I do not need to resolve this issue. I am simply not satisfied that I have been given the full picture.

The Call with Counsel

[102] As mentioned above, Mr. Wu’s claim that he never spoke to counsel, standing alone, sounds contrived for effect. Indeed, nowhere in a very detailed application record does the claim that he never spoke with counsel arise, nor does it appear to have arisen before Gilmore J. That said, there may be a number of tactical and other reasons that I am not privy to which could explain this, though one would have expected that such a claim, if known, would have been front and centre of a s. 10(b) claim. In any event, Mr. Wu’s evidence on this point does not stand alone.

[103] DC Sparkes recalled “putting the call through” to the interview room where Mr. Wu was being held, but he could not recall whether Mr. Wu actually took the call. He had no notes and indeed no recollection of taking any steps to determine whether Mr. Wu actually spoke with counsel and whether Mr. Wu was satisfied with the advice that was given. The absence of any notes on the issue and the absence of any independent recollection of what happened was obviously deeply troubling to DC Sparkes during his testimony. It was obvious to me that DC Sparkes was very critical of himself on this issue.

[104] Following the purported call with counsel, Mr. Wu was interviewed a second time, again not on video. DC Sparkes had no notes and no independent recollection of confirming that Mr. Wu had satisfactorily consulted with counsel prior to conducting this second interview.

[105] While this is a close call, I am satisfied on the totality of the evidence before me that it is likely that Mr. Wu never spoke with counsel on the night of his arrest.

Section 24(2) Analysis

[106] The evidence sought to be excluded by Mr. Wu was not seized as a result of the violation of his s. 10(b) rights. That, of course, does not end the analysis. Section 24(2) of the Charter permits exclusion of evidence where that evidence was “obtained in a manner” that infringed or denied any rights guaranteed by the Charter. While the “obtained in a manner” component of the s. 24(2) analysis is usually established where there is a causal connection between the evidence seized and the Charter right violated, that is not always the case. The Courts have interpreted the “obtained in a manner” component to include both temporal and contextual connections. As Fish J. explains in R. v. Wittwer, 2008 SCC 33 at para. 21:

In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will be tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct: Strachan, at p.1005. The required connection between the breach and the subsequent statement may be “temporal, contextual, causal or a combination of the three”: R. v. Plaha, (2004), 189 O.A.C. 376 at para. 45.

[107] This generous and purposive approach to the consideration of the “obtained in a manner” component of s. 24(2) was more recently affirmed by the Court of Appeal in R. v. Pino, 2016 ONCA 389, where Laskin J.A. directed the courts to consider the entire “chain of events” between the accused and the police to assess whether the evidence seized and the Charter breach are part of the same transaction or course of conduct, as long as the court can discern a causal, temporal or contextual connection that is not too tenuous or remote.

[108] I turn now to my findings on the three prongs of the Grant analysis.

The Seriousness of the Charter-Infringing State Conduct

[109] I find that there are multiple and serious violations of s. 10(b) in this case. Mr. Wu was detained in police custody for 11 hours before an attempt was made to put him in contact with counsel. He was taken to bail court some 14 hours after his arrest and likely not having spoken to counsel.

[110] While the police may have had some limited justification for briefly suspending Mr. Wu’s s. 10(b) rights immediately following his arrest, that justification was quickly extinguished. The vast majority of the delay in providing Mr. Wu his s. 10(b) rights was due to the time it took the officer to draft and obtain the search warrant.

[111] More problematically, Mr. Wu was actually interviewed during the time frame when his s. 10(b) rights were suspended. The police made a deliberate decision to avoid creating a record of this interview. He was interviewed a second time, again not on video, without any noted effort to ascertain whether he had in fact spoken with counsel.

[112] When the s. 10(b) issue was raised at the first trial, misleading testimony was proffered and then relied upon by the trial judge. The explanation for why the misleading testimony was proffered and how the correct version of events was ultimately recalled is unsatisfactory.

[113] The combination of these factors leaves open no alternative finding. This was a serious violation of s. 10(b). While I accept the DC Sparkes’ testimony that “things are done differently now”, that is not good enough in this case. As Laskin J.A. notes in Pino at para. 103:

Admission of the evidence in light of the seriousness of the breaches, and especially the officers’ dishonest testimony, may send the message that the justice system condones this type of conduct.

[114] This factor strongly favours the exclusion of the evidence.

The Impact on the Charter-Protected Interests of the Accused

[115] Mr. Wu does not speak English. He was arrested for very serious offences and wanted to speak with counsel. Instead, he was held incommunicado for at least 11 and likely 14 hours. Laskin J.A.’s comments in Pino, at para. 105, are again particularly apt:

Being forced to sit alone in a jail cell for over five hours after her 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. Ms. Pino was vulnerable and she needed counsel, not just for legal advice, but as a lifeline to the outside world.

[116] This factor also favours exclusion of the evidence.

Society’s Interest in an Adjudication on the Merits

[117] This factor favours admission. A large quantity of drugs, related paraphernalia and cash was seized in this case. The drugs in questions are dangerous and methods used to produce those drugs are also dangerous. The evidence is reliable and its exclusion will end this prosecution.

Overall Balancing of Factors

[118] When the first two branches of the Grant analysis strongly favour exclusion, the third branch will rarely, if ever, tip the balance in favour of admission, see R. v. McGuffie, 2016 ONCA 365 at para. 63. In this case, I find that the balance is clearly tipped in favour of exclusion.

Conclusion

[119] I am satisfied that Mr. Wu’s section 10(b) rights were violated. The violations were very serious. The admission of the evidence seized during the related investigation would bring the administration of justice into disrepute.

[120] The evidence is excluded.

Justice J. Di Luca

Released: February 13, 2017

CORRIGENDA

1. Page 3, subheading “(a) Detective Constable Shawn Sparkes” – “(a)” has been removed
2. Page 20, paragraph [99] – the text of the original Ruling has been changed from “…I am satisfied that the DC Sparkes…” to read “…I am satisfied that DC Sparkes…”
3. Page 21, paragraph [107] – the text of the original Ruling has been changed from “… Charter breach are part of the same transaction or course of conduct. As long as…” to read “ Charter breach are part of the same transaction or course of conduct, as long as…”

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – SHANG EN WU REVISED RULING ON CHARTER s. 10(b) AND s. 24(2) APPLICATION Justice J. Di Luca

Released: February 13, 2017