CITATION: R. v. Amankwa and Nyadu, 2017 ONSC 765

COURT FILE NO.: CR-15-3374-0000

DELIVERED ORALLY: Wednesday, February 1, 2017

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SHADRACK KWAME AMANKWA and

KEVIN MANTLEY NYADU

Timothy M. Kavanagh, for the Crown

Julie Santarosa, for the accused Shadrack Amankwa

Patricia S. Brown, for the accused Kevin Nyadu

HEARD: November 28, 29, 30, December 1, 2, 5, 6, 7, 8, 9, 12, 13, and 15, 2016

REASONS FOR RULING ON CHARTER APPLICATION

Howard J.

Overview

1In the early morning hours of Sunday, October 5, 2014, there was a shooting at “The Boom Boom Room,” a night club of some repute in downtown Windsor, Ontario. An employee of the night club, Devonte Pierce, was shot in the back as he was attempting to clear patrons out of the front doors of the club at closing time.

2In a fourteen-count indictment, the accused Kevin Nyadu was charged with attempted murder, careless use of a firearm, careless storage of a firearm, possession of a loaded firearm, unauthorized possession of a firearm, and unauthorized possession of prohibited ammunition.

3The co-accused Shadrack Amankwa was charged with being an accessory to attempted murder, careless storage of a firearm, possession of a loaded firearm, unauthorized possession of a firearm, unauthorized possession of prohibited ammunition, and three counts of possession contrary to weapon prohibitions.

4Both accused were arrested on the street a few blocks away from the night club by constables with the Windsor Police Service (“WPS”). The arresting officers read them their rights, and they were then transported to the Detention Centre at WPS headquarters.

5Upon arrival at the Detention Centre, they were each processed and placed in a separate “dry” cell, that is, a cell that has no washbasin, toilet, or other source of water.

6Some hours after they arrived at the Detention Centre, a police constable with the WPS Forensic Identification Branch attended to them in their respective cells and, among other things, administered a gunshot residue test, obtaining tape-lift samples from the hands of each accused.

7The samples were then submitted to the Centre of Forensic Sciences in Toronto for analysis. Three gunshot residue particles were identified on the samples taken from the hands of Mr. Nyadu. No gunshot residue was found on the samples taken from Mr. Amankwa.

8Mr. Nyadu now applies for an order pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms to exclude the gunshot residue evidence from admission at trial, on the basis that he was not afforded the right to speak with legal counsel before the gunshot residue samples were taken from him, in violation of his rights under s. 10(b) of the Charter.¹

Factual Background

9Mr. Nyadu was 20 years of age at the time of the incident in October 2014. He has no criminal record and reportedly no prior involvement with the criminal justice system in Canada.

10Mr. Nyadu admits that he was in attendance at The Boom Boom Room on the night of the incident.

11At about 2:37 a.m. on the morning of Sunday, October 5, 2014, WPS dispatch announced that there had been a shooting at the Boom Boom Room, 315 Ouellette Avenue, and people were running from the scene.

12Police Constables Dominic Stramacchia and Timothy Kettlewell had been assigned to downtown direct patrol that night and were driving in a marked police cruiser when they received the announcement from dispatch. Initially proceeding westbound on University Avenue West, they made a U-turn on University just west of its intersection with Victoria Avenue, and as they completed the U-turn they looked southward down Victoria Avenue and saw two men running across Victoria from the east side of the road to the west, closer to Park Street West. They then turned the cruiser onto Victoria and proceeded southbound one block, pulling the cruiser over to the west side of Victoria, at the north-west corner of its intersection with Park Street. They observed two men standing in or near the parking lot located at the north-west corner of Victoria and Park.

13P.C. Stramacchia got out of the driver’s side door of the cruiser and approached the male who was standing near some parked cars on the west side of Victoria. That male was later identified as the accused Shadrack Amankwa.

14P.C. Kettlewell, an 18-year veteran with the WPS, exited the cruiser and focussed his attention on the other male, whom he later identified as the accused Kevin Nyadu. At that point, Mr. Nyadu was standing in the parking lot about 50 metres to the north of P.C. Kettlewell. He observed Mr. Nyadu with his left hand in his pant pocket and his right hand holding a baseball cap. The constable’s evidence is that he called over to Mr. Nyadu, told him to stop, to raise his hands, and to walk towards the constable, which Mr. Nyadu did.

15P.C. Kettlewell observed that Mr. Nyadu was sweating profusely and breathing heavily. The parking lot where P.C. Kettlewell encountered Mr. Nyadu is two blocks west of The Boom Boom Room and one block south. P.C. Kettlewell believed his observations of Mr. Nyadu’s perspiration and breathing were consistent with someone who was running from The Boom Boom Room.

16P.C. Kettlewell then placed Mr. Nyadu under investigative detention. He handcuffed Mr. Nyadu, with his hands behind his back. Reading from the standard language he keeps at the back of his notebook, P.C. Kettlewell read him his rights, including his right to counsel, and cautioned him. The constable does not remember if Mr. Nyadu made any response to him, and he has no notation in his notebook to that effect. Mr. Nyadu does not have a precise recollection of the exchange; his evidence allows that it is possible P.C. Kettlewell did advise him of his right to counsel, but he does not remember.

17P.C. Kettlewell found a wallet in Mr. Nyadu’s back pocket, which confirmed his identity. P.C. Kettlewell’s best recollection is that Mr. Nyadu was placed under investigative detention within a few minutes of the dispatch broadcast about the shooting.

18P.C. Kettlewell told Mr. Nyadu that they were investigating a shooting that occurred at The Boom Boom Room. He asked Mr. Nyadu where he was coming from; Mr. Nyadu said he was running from the bars. The constable asked him what bar, and Mr. Nyadu said The Boom Boom Room. The evidence of Mr. Nyadu, who generally could not remember much of what was said during his encounter with P.C. Kettlewell, confirmed that he told the constable that he was coming from the The Boom Boom Room.

19As P.C. Kettlewell was dealing with Mr. Nyadu, he turned his head toward the bushes that were close to the north-west corner of the intersection of Victoria and Park. The constable observed what he thought was the barrel of a handgun, lying on the ground under the bushes. Police would later recover one black, loaded 9 mm. Makarov semi-automatic pistol from the location observed by P.C. Kettlewell.

20In cross-examination, and having watched the relevant footage of video surveillance of the parking lot area and intersection of Victoria Avenue and Park Street from the Victoria Park Place building,² P.C. Kettlewell confirmed that at no point in time does the video depict Mr. Nyadu near the bushes where the handgun was found.

21P.C. Kettlewell then radioed in to police dispatch to report, and yelled over to his partner, P.C. Stramacchia, that they had grounds to arrest the men for assault with a weapon.

22P.C. Kettlewell then placed Mr. Nyadu under arrest, again read him his rights, including his right to counsel, and cautioned him. He asked Mr. Nyadu if he understood his rights, and Mr. Nyadu replied in the affirmative. P.C. Kettlewell does not recall whether Mr. Nyadu said that he wished to speak with a lawyer, and he made no notation to that effect in his notebook. P.C. Kettlewell’s records indicate that he made the arrest at 2:41 a.m.

23P.C. Stramacchia arrested Mr. Amankwa at or about the same time.

24P.C. Kettlewell’s best recollection is that he was not wearing gloves at the time of his interaction with Mr. Nyadu.

25The arresting officers requested separate transportation for each of Mr. Nyadu and Mr. Amankwa. Sergeant Ann Hall arrived at the scene at Victoria Avenue and Park Street at 3:01 a.m. She spoke with P.C. Kettlewell to gather information from the arresting officer about Mr. Nyadu. P.C. Kettlewell suggested to Sgt. Hall that the two accused be placed into dry cells because, he believed, if the accused were involved in a shooting, they could have gunshot residue on their hands or clothing, and placement in a dry cell would help preserve any such evidence.

26Sgt. Hall then transported Mr. Nyadu from the scene of the arrest to WPS headquarters, escorting him to the Detention Centre on the second floor of the building, arriving there at 3:11 a.m.

27Sgt. Hall delivered Mr. Nyadu to Sgt. Brit Johnson, who was then working the midnight shift as Sergeant of the Detention Centre.

28Sgt. Johnson’s notes indicate that the two accused arrived at the Detention Centre at 3:12 a.m. Sgt. Johnson “viewed the prisoners” (i.e., he checked them for any injuries, etc.), and he oversaw their intake process. Special Police Constable Mark Michaelis was working the midnight shift at the Detention Centre that night with his partner, S.P.C. Jack Greenway, and confirms that the accused were brought to the Detention Centre at 3:12 a.m. S.P.C. Michaelis was assigned to attend to Mr. Nyadu and Mr. Amankwa during his shift.

29The evidence of S.P.C. Michaelis is that, upon their arrival, the accused were interviewed by his partner for personal information, including name, address, physical appearance, height, and weight, whether they had any health issues, and whether they required any medication.

30The accused were then searched for any item that could pose a safety risk to either the prisoners or the officers and any valuables, which items were then removed from them and placed in a property bag. A list of any such property taken from them was prepared, which they then signed. In the case of Mr. Nyadu, the arresting officer, P.C. Stramacchia, performed the search of Mr. Nyadu.

31Once the accused were processed, they were each placed in separate dry cells, alone. Mr. Nyadu was placed in dry cell no. 2, and Mr. Amankwa was placed in dry cell no. 3.

32The evidence of S.P.C. Michaelis was that he understood the decision to place the accused in dry cells was made by Sgt. Johnson, who communicated that direction to S.P.C. Michaelis. He could not recall whether there was any other prisoner in dry cell no. 2 before Mr. Nyadu was placed there, although he allowed that was a possibility. To his knowledge, the dry cells are not wiped down, sterilized, or cleaned after one prisoner is removed from the cell and before another one is placed there.

33S.P.C. Michaelis testified that part of his duties as a special constable at the Detention Centre includes facilitating phone calls by the prisoners to their lawyers if they so desire. S.P.C. Michaelis was asked if he took any steps to facilitate the accused calling their lawyers following their arrival and initial processing at the Detention Centre. He replied that Sgt. Johnson asked him to return them to their cells and “not do it at that time.” S.P.C. Michaelis was asked whether Sgt. Johnson explained the rationale for his decision or if he just issued the instruction. S.P.C. Michaelis replied that his understanding was that the instruction was issued because they were waiting for Identification Officers to come process the prisoners and did not want to allow the prisoners any access to water before they were processed. S.P.C. Michaelis was asked whether he understood the Identification Officers, or “Ident” officers as they are called, would be attending anytime soon, and he replied that he did not know either way.

34The accused remained in their respective dry cells until the Ident Officers arrived. S.P.C. Michaelis said that he checked on the prisoners at 4:35 a.m. to confirm their well-being. At some point, he transferred Mr. Nyadu from dry cell no. 2 to cell no. 9; however, S.P.C. Michaelis has no notes or recollection as to when or why Mr. Nyadu was moved.

35S.P.C. Michaelis testified that at 4:58 a.m. he was asked by Sgt. Johnson to remove Mr. Amankwa from dry cell no. 3 and place him in cell no. 24.

36The gunshot residue sampling was administered by P.C. Chris Peltier, a 14-year veteran with the WPS, who joined the Forensic Identification Branch in 2008. The evidence of P.C. Peltier was that he was called into duty at 3:23 a.m. on the morning of October 5th. He arrived at WPS headquarters at 4:00 a.m. He attended a meeting at the Major Crimes Branch at 4:15 a.m., where the staff sergeant assigned duties for the investigation. P.C. Peltier and his partner, P.C. Mollicone, were tasked with, among other things, taking photographs and collecting evidence from the two accused in custody.

37The Ident Officers arrived at the Detention Centre at 4:45 a.m. They first dealt with Mr. Amankwa, beginning at 4:49 a.m., alone in the “search room,” a separate, private room in the Detention Centre. They took some photographs, collected gunshot residue samples, and seized some clothing and footwear. Mr. Amankwa was returned to the Detention Centre at 4:47 a.m.

38The Ident Officers then dealt with Mr. Nyadu, who was brought to the search room at 4:59 a.m. They met with Mr. Nyadu without anyone else present. P.C. Mollicone read a secondary caution to Mr. Nyadu. The secondary caution, which deals with utterances only, did not include information about the right to counsel, although P.C. Peltier is not sure why.

39Again, the officers took some photographs of Mr. Nyadu and his clothing. P.C. Peltier conducted the gunshot residue sampling in accordance with his specialized training, using “dabbers” to obtain four tape-lift samples from the hands of Mr. Nyadu, that is, a sample from the web of the hand along the index finger and thumb, and a second sample from the back of the hand, for both the left and right hands. P.C. Peltier testified their standard practice is not to sample the palms of the hands. The Ident Officers also seized some clothing and footwear from Mr. Nyadu.

40After the Ident Officers concluded their forensic examinations, Mr. Nyadu was escorted back to his dry cell, at 5:06 a.m.

41P.C. Peltier testified that while P.C. Mollicone gave each accused a secondary caution, neither officer advised the accused of their right to counsel before conducting their forensic examinations. P.C. Peltier testified that he did not turn his mind to the accused’s right to counsel. Moreover, he did not know whether the accused had spoken with counsel prior to collecting the gunshot residue samples. P.C. Peltier agrees that Mr. Nyadu should have been given the opportunity to speak with counsel by that point.

42In cross-examination, P.C. Peltier agreed that in order to preserve gunshot residue evidence it would be best to bag the hands of the accused. He testified that he had never seen that done before on a live person, although it is routinely done with deceased persons in homicide investigations. He agreed that bagging the hands of the accused in circumstances such as the instant case would help because it would guard against the loss of gunshot residue evidence.

43S.P.C. Michaelis was also asked about the possible practice of bagging an accused’s hands. In cross-examination, it was suggested to him that if there was a concern about being able to preserve gunshot residue evidence, the accused’s hands could have been bagged. S.P.C. Michaelis replied, “not my job.”

44In cross-examination, S.P.C. Michaelis confirmed that at no time did he advise the accused of his right to counsel, as that is not part of his duties. He did, however, confirm that it is part of his duties to ensure that a prisoner has the right to access counsel; he is part of implementing the accused’s right to counsel. S.P.C. Michaelis could not say why the accused in this case were required to wait some hours before they were permitted to contact their lawyers. He testified, “what the reason was I do not know; I was told when to do it, and I did it at that time.” The evidence of S.P.C. Michaelis is that he had no part in making the decisions as to when prisoners are permitted to contact legal counsel; he was simply following orders that were given to him by someone else, who, in this case, was Sgt. Johnson.

45S.P.C. Michaelis confirmed that the police try to afford access to counsel as quickly as possible, but his orders from Sgt. Johnson in this case were to hold off giving them that opportunity. S.P.C. Michaelis testified that any delay in implementation in this case was a function of the orders he received from Sgt. Johnson, and he said, “all I can testify to is I gave him an opportunity to call counsel when I was asked to.”

46In this case, the evidence is clear that it was only after the gunshot residue samples were collected and Mr. Nyadu was returned to his cell that he was allowed to speak with a lawyer.

47The evidence of S.P.C. Michaelis was that he facilitated a phone call from Mr. Nyadu to legal counsel at 5:10 a.m. At that time, he asked Mr. Nyadu which lawyer he wished to contact, and when he replied, “Patricia Brown,” S.P.C. Michaelis placed the call to Ms. Brown and transferred the call to telephone room no. 2153 so that Mr. Nyadu could speak with his counsel in private. Those telephone rooms are apparently sparsely furnished with, essentially, only a telephone in them. The evidence indicates that, like the dry cells, there is no basin, toilet, or other source of water in the telephone rooms.

48In cross-examination, S.P.C. Michaelis was asked if he had any knowledge of whether Mr. Nyadu was given the opportunity to speak with a lawyer prior to 5:10 a.m. that morning, and he replied that he did not know. When asked if he had inquired of Mr. Nyadu whether he was given an earlier opportunity to speak with counsel, S.P.C. Michaelis said he had not. When asked why he had not asked the accused that, S.P.C. Michaelis replied, “not my job.” S.P.C. Michaelis testified that all of his directions that night about facilitating contact with counsel came from Sgt. Johnson. S.P.C. Michaelis was asked whether he expressed any concern to Sgt. Johnson about the apparent delay in implementing Mr. Nyadu’s right to counsel, and he replied, “that’s above my pay-grade. I’m not involved in those decisions.”

49The evidence indicates that Mr. Nyadu spoke with counsel from 5:10 a.m. to 5:41 a.m.

50At 6:03 a.m., S.P.C. Michaelis retrieved Mr. Amankwa from cell no. 24, brought him to the area in the Detention Centre where they do counsel calls, and asked him if he wished to contact a lawyer. When Mr. Amankwa replied that he did not wish to speak with a lawyer, S.P.C. Michaelis had him record and sign in the log book that he was declining the offer to contact counsel, and he then returned Mr. Amankwa to cell no. 24.

51When S.P.C. Michaelis was asked why he chose to offer the counsel call at 6:03 a.m., he replied that he was directed by Sgt. Johnson at that time to do so.

52Sergeant Matt McGhee, a 27-year veteran with the WPS, gave evidence that at the time of the shooting he was a detective in the General Investigation Squad. He learned of the shooting at The Boom Boom Room at about 2:40 a.m. on the morning of October 5th, and at 2:56 a.m. he called the Detention Centre and spoke with Sgt. Johnson and suggested to him that when the accused arrive at the Detention Centre, they should be placed in dry cells in order to preserve any gunshot residue evidence.

53Sgt. McGhee had previously held Sgt. Johnson’s position, i.e., supervising the Detention Centre. Sgt. McGhee testified that, in his experience, when an accused is placed in a dry cell, they are normally kept there until the forensic officers arrive. Sgt. McGhee’s experience was that an accused who had been placed in a dry cell would be afforded the right to speak with counsel only after the forensic examinations had concluded. Sgt. McGhee was not aware of any protocol or policy within the WPS that provided for that practice; he suggested it would be at the discretion of the sergeant supervising the Detention Centre. Sgt. McGhee had no conversation with Sgt. Johnson about facilitating the right to counsel for the accused in this case.

54Sgt. Johnson was questioned about the practice of facilitating the right to counsel for an accused person placed in a dry cell. He testified that he was not “100% sure” about the right to counsel but, usually, the accused should have access to counsel within a “reasonable time.” However, he believed that if there was a firearm involved and there was a concern that the accused might remove evidence of gunshot residue, then “they would not be afforded that right at that time.”

55Sgt. Johnson was asked who has ultimate responsibility within the Detention Centre for ensuring that a person who wishes to speak with a lawyer is actually afforded that opportunity. He replied that “usually, it’s the special constables who are working in there; they make the arrangements and assist the persons in custody with making that phone call.”

56Sgt. Johnson was asked if there was a way to communicate to the special constables that an accused person can now have access to counsel if they wish to speak with a lawyer. He replied, “there could be, I’m not sure what that would be; that would probably come from somebody else once they’ve been processed by Ident.” Asked whether that decision would be made by the officer-in-charge of the Detention Centre and then relayed to the special constables, Sgt. Johnson said “it would probably be relayed to me,” and that such information could come from the detectives or the arresting officers. He understood that usually when an accused person arrives at the Detention Centre and is finished being logged in, they are allowed to call a lawyer. However, Sgt. Johnson does not usually “follow up on the rights to counsel” to ensure that detained persons are actually given the opportunity to speak with a lawyer.

57Sgt. Johnson testified that in the instant case he has no record that he “was given a command to have these people make a phone call.” He has no notation in his notebook about the issue of affording access to counsel for the two accused in this case. He has no recollection of being involved with facilitating the right to counsel for the accused. His evidence is that he is typically not involved in facilitating the right to counsel. He believed it was not a normal practice for him as supervisor of the Detention Centre to confirm whether an accused had an opportunity to contact their lawyer.

58In cross-examination, it was put to Sgt. Johnson that, as the officer-in-charge, it was he who made the decision to leave the accused in their dry cells until the Ident Officers had completed their forensic examinations. In reply, he said that, “I would leave them in there until I was directed differently.” He suggested that, given that Sgt. McGhee advised him that the accused should be placed in dry cells, he would likely then have waited until Sgt. McGhee told them they could be removed from the dry cells. Sgt. Johnson believed he was taking advice and direction from Sgt. McGhee.

59My own view is that Sgt. Johnson had been under cross-examination for some length at that point (although certainly not unfairly), and I am not satisfied that his testimony before me accurately reflects his beliefs as the time. However, in any event, he admitted that, as the officer-in-charge of the Detention Centre, he would have the discretion, in certain circumstances, to allow a detained person the opportunity to speak with a lawyer.

60Mr. Nyadu, in his evidence, said he could not remember whether anyone told him he had a right to speak to a lawyer when he got to the Detention Centre. He was asked during examination-in-chief whether he, in fact, wanted to speak with a lawyer, and he answered yes, he did, because he did not know what was going on at that point. He was asked if he told the police he wanted to speak to a lawyer, and he replied that he tried to but no one was really “tending” to him.

61Mr. Nyadu’s evidence is that before the gunshot residue test was administered, he was not asked if he wished to consent to or cooperate with the collection. He said he was not offered or given the right to speak to a lawyer before the collection.

62Mr. Nyadu’s evidence was that he didn’t really know what the Ident Officers were doing when the dabbers were used to take samples from him. However, he subsequently learned, and now understands, that the samples were taken to determine whether he had gunshot residue particles on his hands. His evidence is that, had he known of the purpose of the test at the time, he would have refused to participate without first being able to speak with a lawyer. In cross-examination, Mr. Nyadu confirmed that his understanding of his legal rights is that he had the ability to choose whether or not he would permit the samples to be taken.

63The evidence of Sgt. Johnson and other police officers made reference to the “Major Crime Protocol” or “Major Crime Management Protocol,” which was marked as an exhibit before me.³ The document is entitled “Handling Major Crime Prisoners,” is dated October 30, 2009, and was issued under the signature of the Inspector of Operational Support Services. It sets out various steps for handling major crime prisoners, such as the following: the Detention Unit Sergeant is to be notified when a suspect has been arrested for a major crime; the said Sergeant is to ensure that one Special Constable (per shift) is assigned specifically to deal with the suspect; the said Special Constable shall maintain in-depth notes of the interactions with the suspect, etc. It is common ground that the document does not expressly deal with the right to counsel or the police obligation to facilitate that right.

Analysis

Section 10(b): Was there a breach of the applicant’s right to counsel by the failure of the police to afford an opportunity to speak with a lawyer prior to collecting the gunshot residue samples?

64The applicant Mr. Nyadu argues that, even if the court accepts the evidence offered by the Crown that the accused was advised of his right to counsel, the accused was never afforded the opportunity to speak with legal counsel before the gunshot residue samples were collected and that this failure of the police constitutes a breach of his s. 10(b) Charter rights. The applicant argues that, as a result of the s. 10(b) infringement, the evidence of the gunshot residue must be excluded from trial because its admission into evidence would tend to bring the administration of justice into disrepute.

65Subsection 10(b) of the Charter guarantees the right to counsel in the following terms:

Everyone has the right on arrest or detention …

(b) to retain and instruct counsel without delay and to be informed of that right; …

66It is the accused who bears the burden of persuading the reviewing court that his or her Charter rights have been infringed and that admission of the evidence would bring the administration of justice into disrepute. The standard of proof is the civil standard of the balance of probabilities.⁴

67I have no difficulty in finding as a fact that Mr. Nyadu was advised of his right to counsel by P.C. Kettlewell upon his arrest in the parking lot at the north-west intersection of Victoria Avenue and Park Street West. There is no compelling reason not to accept the evidence of P.C. Kettlewell on this point, and Mr. Nyadu could not remember much if not most of his exchange with P.C. Kettlewell that night. Indeed, Mr. Nyadu could not conclusively say that P.C. Kettlewell did not advise him of his right to counsel.

68I find that the informational component of Mr. Nyadu’s s. 10(b) rights was not infringed.

69That said, as all counsel recognize, the heart of the application in the instant case engages the implementation component of the right to counsel. In R. v. Manninen,⁵ the Supreme Court of Canada recognized that s. 10(b) of the Charter imposes a corresponding duty on the police to ensure that an accused is given a reasonable opportunity to exercise the right to counsel.

70The applicant relies heavily on the relatively recent decision of the Supreme Court of Canada in R. v. Taylor.⁶ In that case, the accused was arrested for impaired driving causing bodily harm and was advised of his right to counsel by the police at the scene of the arrest. The accused was then transported to hospital, where he was ultimately given medical attention, in the presence of police, in the course of which the attending nurse took five vials of blood from the accused. At no point during the accused’s time in hospital did the police attempt to provide him with an opportunity to speak to his lawyer or determine whether such an opportunity was even logistically or medically possible. The following day, the police obtained a warrant to seize the five vials of blood, which, when analyzed, indicated that he had more alcohol in his blood than was lawfully permitted.

71In powerful language, the Supreme Court of Canada held that the police had failed to comply with the duty to facilitate the accused’s right to speak to counsel “without delay,” that his s. 10(b) rights had been violated, and that the evidence from the blood samples had to be excluded from trial.

72Writing for the entire court, Abella J. explained the purpose of the s. 10(b) right as follows:

The purpose of the s. 10(b) right is “to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights”: … The right to retain and instruct counsel is also “meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination”: … Access to legal advice ensures that an individual who is under control of the state and in a situation of legal jeopardy “is able to make a choice to speak to the police investigators that is both free and informed.”⁷

73In delineating when the duties of the police arise, Abella J. explained that the duty to inform the accused of the right to counsel arises “immediately” upon arrest or detention, and the duty to facilitate access to a lawyer must be implemented “at the first reasonably available opportunity,” as follows:

The duty to inform a detained person of his or her right to counsel arises “immediately” upon arrest or detention …, and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee’s request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances ... Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.

This means that to give effect to the right to counsel, the police must inform detainees of their s. 10(b) rights and facilitate access to those rights where requested, both without delay. This includes “allowing [the detainee] upon his request to use the telephone for that purpose if one is available” ... And all this because the detainee is in the control of the police and cannot exercise his right to counsel unless the police give him a reasonable opportunity to do so …

Until the requested access to counsel is provided, it is uncontroversial that there is an obligation on the police to refrain from taking further investigative steps to elicit evidence …⁸

74The court concluded that s. 10(b) of the Charter “does guarantee that the individual will have access to a phone to exercise his right to counsel at the first reasonable opportunity,”⁹ and that the corresponding “duty of the police is to provide access to counsel at the earliest practical opportunity.”¹⁰

75While the court recognized that there may well be circumstances where it will not be possible to facilitate access,¹¹ in Taylor there was, “in fact, virtually no evidence about what logistical or medical barriers stood between Mr. Taylor and a phone call to his lawyer.”¹²

76The court warned against assuming too quickly and without sufficient evidence that it would be impracticable for the police to facilitate access promptly, as follows:

Constitutional rights cannot be displaced by assumptions of impracticality. Barriers to access must be proven, not assumed, and proactive steps are required to turn the right to counsel into access to counsel.

The result of the officers’ failure to even turn their minds that night to the obligation to provide this access, meant that there was virtually no evidence about whether a private phone call would have been possible, and therefore no basis for assessing the reasonableness of the failure to facilitate access. In fact, this is a case not so much about delay in facilitating access, but about its complete denial. It is difficult to see how this ongoing failure can be characterized as reasonable. Mr. Taylor’s s. 10(b) rights were clearly violated. With respect, the trial judge erred in concluding otherwise.¹³

77In the instant case, it is indisputable that the accused was not afforded the opportunity to speak with counsel until after the evidence of the gunshot residue was collected.

78To recap, Mr. Nyadu was arrested by P.C. Kettlewell at 2:41 a.m., transported to WPS headquarters and arrived at the Detention Centre at 3:11 a.m., and taken to the forensic officers at 4:59 a.m., who then performed the gunshot residue test. Following the officers’ examinations, he was returned to his dry cell at 5:06 a.m. It was then, not coincidentally, that he was finally afforded the opportunity to contact a lawyer, only some four minutes later, at 5:10 a.m. That is, it was some two hours after the accused arrived at the Detention Centre, and only mere minutes after the forensic officers had collected the evidence, that the police provided access to counsel.

79In the particular circumstances of the instant case, I am prepared to find that the accused requested access to legal counsel for the purposes of the Taylor analysis. I accept the evidence of Mr. Nyadu that he wanted to speak with a lawyer because he didn’t know what was going on. He was a young man, he had never been in trouble with the law before, and he found himself arrested and left in a dry cell for some two hours with his hands handcuffed behind his back.

80His evidence was that he tried to request a lawyer but no one was “tending” to him. That would appear to be consistent with the evidence of the police officers, which indicates that between the time Mr. Nyadu arrived at the Detention Centre at 3:11 a.m. and when the gunshot residue test was administered just after 5:00 a.m., the police attended to him only once, when S.P.C. Michaelis came to check on him at 4:35 a.m.

81Moreover, it is also consistent with the general demeanour of the officers that night, whose collective evidence indicates that the issue of facilitating the accused’s right to counsel was of no imperative or even particular concern to them at the time. Indeed, the inference I would draw from their collective evidence is that they believed they had no need to be concerned with facilitating the accused’s right to counsel prior to the forensic officers concluding their examinations.

82In these circumstances, it does not lie in the mouth of the police to say that they did not hear the accused express his wish to speak with counsel when they had effectively closed their ears to the issue. I find that, in effect, he was “denied an opportunity to even ask” to speak to counsel.¹⁴

83That said, I think it should be recognized that Taylor did not deal with a search incidental to arrest. There was therefore no need for the Supreme Court in Taylor to consider whether the same ringing principles heralded in its analysis would apply equally to cases where the police seize evidence pursuant to their common law powers to search a detainee incidental to arrest for the purpose of preserving evidence that may go out of existence or be otherwise lost.¹⁵

84In contrast, the circumstances of the instant case present a search incidental to arrest. Our Court of Appeal held in R. v. Backhouse that a test for gunshot residue is a search incident to arrest.¹⁶ Backhouse was relied upon by counsel for the applicant before me.

85The concern arises because in the Supreme Court of Canada’s decision in R. v. Debot, a three-person majority of the court held that where the police perform a search incident to arrest, while the accused does have the right to be informed of the right to counsel, “the police are not obligated to suspend the search incident to arrest until the detainee has the opportunity to retain counsel.”¹⁷

86The significance of the distinction lies in the fact that a search of a person incident to arrest is an established exception to the general rule that warrantless searches are prima facie unreasonable under s. 8 of the Charter.¹⁸ That is, a search incident to arrest is generally still lawful notwithstanding the absence of a warrant.

87In this regard, I would note that in Taylor the police had obtained a warrant to seize the vials of blood taken at the hospital. Their search would seem to have been lawful because it was authorized by warrant. In a similar vein, the search in the instant case would appear to be prima facie lawful because it was made as an incident to arrest. Even so, in Taylor, the fact that the seizure of the vials of blood was apparently authorized did not excuse the infringement of the accused’s s. 10(b) rights in the eyes of Abella J., who observed, “I would note only that the police should not be able to circumvent the duty to implement an arrested individual’s s. 10(b) rights by attempting to cure any tainted evidence with a warrant authorizing its seizure.”¹⁹

88In any event, in my view, the circumstances of the instant case are quite unlike the considerations before the court in R. v. Debot, where the majority of the court held that the police were not obliged to suspend a road-side, on-the-spot, warrantless frisk search conducted on a suspected drug-trafficker as an incident to arrest in order to provide the detainee with an opportunity to consult with counsel.

89In contrast, here, there was no suggestion of urgency or exigent circumstances. Indeed, Mr. Nyadu was there waiting in his dry cell, hand-cuffed, alone, for some two hours. To say that the police did not require a warrant to effect a search and seizure incident to arrest is not to say why it was not possible to afford the accused with the opportunity to speak with a lawyer at some point during those two hours while he was waiting for the Ident officers to arrive.

90In my view, this is a case where, as Abella J. held in Taylor, the burden is on the Crown to show that a delay in facilitating access to counsel was reasonable in the circumstances.²⁰

91As I have said, in Taylor, the Supreme Court held that the failure of the police to even turn their minds to their obligation to provide the accused with access to counsel at the earliest practicable opportunity “meant that there was virtually no evidence” about whether a private phone call in the hospital setting would have been possible, “and therefore no basis for assessing the reasonableness of the failure to facilitate access.”²¹

92In my view, strikingly similar considerations apply to the instant case. Here, there is virtually no evidence that would provide a basis for assessing the reasonableness of the failure of the WPS to facilitate the accused’s access to counsel without delay.

93It is clear from Taylor that the burden is on the Crown to show that a given delay was reasonable in the circumstances.²² In my view, given the paucity of evidence from the WPS explaining why the steps concerning the detention of the accused were taken render it practically impossible for Crown counsel to discharge his burden to demonstrate that the delay by the police in facilitating the accused’s right to counsel was reasonable.

94As I believe is apparent from my review of the evidence summarized above, in the case at bar, no one within the WPS took ownership of the decision to place the accused in dry cells or to forestall his ability to contact counsel until the Ident officers had completed their forensic examinations. Indeed, the evidence does not even explain who was responsible for making the decision to allow the prisoners to contact a lawyer when that was finally permitted.

95As Crown counsel submitted, and I accept, there is of course an extremely important state interest in preserving evidence. However, the question is whether it is reasonable to detain an accused person in a dry cell for two hours if permitting their access to counsel would not in any way allow that accused to destroy evidence. In particular, there was no evidence offered to explain why an accused who had been placed in a dry cell, an environment that has no access to water as might allow an accused to wash away any evidence of gunshot residue, could not use the telephone in one of the Detention Centre’s private telephone rooms, which also has no access to water.

96I accept Mr. Kavanagh’s eminently fair and candid submissions that, to paraphrase, if the concern of the police was to preserve evidence of gunshot residue, it was not explained why an accused placed in a dry cell, in handcuffs, would not presumably have the same ability to interfere with gunshot residue evidence that may or may not exist on his hands as would that same person have if he were allowed access to a telephone in one of the private telephone rooms in the Detention Centre.

97Moreover, if the concern of the police was that use of the telephone might contaminate the hands of any accused using the phone to speak with his lawyer, and thus undermine the integrity of their forensic evidence, it should be remembered that the evidence of P.C. Peltier and the expert evidence of Dr. Robert Gerard of the Centre of Forensic Sciences was that no samples are taken from the palms of the hands for the purposes of gunshot residue analysis. In any event, if the police had that concern, they could always wipe down the telephone handsets between each different prisoner’s use.

98Further, while the underlying concern that any evidence of gunshot residue be preserved is, again, an extremely important state interest, it would seem that there were other methods available to the police that would also facilitate the accused’s right to access counsel. One method that was raised in the witness examinations was the bagging of the accused’s hands. I was referred to the Court of Appeal’s decision in R. v. Stevenson, a murder case that arose out of the Brockville area, where the deceased was shot in the head by her estranged husband. Although the court did not have to deal with the right to counsel issue in that case, I note para. 15 of the court’s recitation of the facts, where the court observed that the accused was arrested “at about 9:30 p.m., about two hours after the murder. At about 9:52 p.m. the arresting officers wrapped the appellant’s hands in plastic bags to preserve any potential GSR evidence.”²³ In defence counsel’s cross-examination of P.C. Peltier, the constable very fairly agreed that it would be best to bag the hands of an accused in order to preserve gunshot residue evidence.

99I also note that in R. v. Stevenson, the police afforded the accused, more than once, an opportunity to speak with counsel before collecting the gunshot residue samples, although the accused in that case declined to speak to a lawyer on both occasions.²⁴ Indeed, I was referred to a number of decisions in other jurisdictions where the police facilitated the accused’s access to counsel before collecting gunshot residue samples.²⁵

100In my view, as in Taylor, the instant case demonstrates the failure of the Windsor Police Services to even turn their minds to their obligation to provide the accused with access to counsel at the earliest practicable opportunity. As a result, there is virtually no evidence about whether the police could have facilitated access to counsel by those prisoners held in dry cells without compromising the integrity of the forensic evidence – chiefly because they did not turn their minds to it. As a result, there is no factual foundation available to Crown counsel to argue, or to the court to assess, the reasonableness of the delay by the police in facilitating access to counsel.

101Given the circumstances of the instant case, it has not been possible for Crown counsel to discharge the Crown’s burden to show that that the delay here in facilitating access to counsel was reasonable in the circumstances. As such, I find that the delay here was unexplainably unreasonable.

Summary

102For all of these reasons, I find that the Crown has not discharged its burden of showing that the delay of the police in facilitating Mr. Nyadu’s access to counsel was reasonable in the circumstances.

103I therefore conclude that the accused has established a breach of his rights to counsel as guaranteed by s. 10(b) of the Charter.

Subsection 24(2): Would the admission of the evidence bring the administration of justice into disrepute?

104Having found a breach of the applicant’s s. 10(b) Charter rights, I must now consider whether the evidence of the gunshot residue should be excluded from the evidence at trial, pursuant to the principles enunciated by the Supreme Court of Canada in its seminal decision in R. v. Grant.²⁶

105In R. v. Grant, the majority of the Supreme Court settled upon a revised framework for determining whether admission of evidence obtained in violation of the Charter would bring the administration of justice into disrepute, which they articulated as follows:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.²⁷

Seriousness of the Charter-infringing state conduct

106The first line of inquiry under the Grant analysis requires the court to assess whether the admission of the evidence would send “a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct.”²⁸

107“The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.”²⁹

108This is not a case of wilful or flagrant disregard of the Charter by the state in the sense that the police officer deliberately set out to specifically circumvent or deny Mr. Nyadu’s s. 10(b) rights.

109However, the impugned practice of the police in this case would appear to be intentional. In my view, it was not merely a matter of happenstance that Mr. Nyadu was returned to his dry cell at 5:06 a.m., after the gunshot residue samples had been collected, and then, quite coincidentally, he was allowed to call a lawyer at 5:10 a.m. Rather, the evidence suggests that many of the officers seemed to believe that if a detainee is awaiting the arrival of a forensics officer to collect gunshot residue sample, that detainee cannot be allowed to contact legal counsel. That inference is reflected, for example, in the evidence of Sgt. McGhee who testified that his experience was that an accused who had been placed in a dry cell would be afforded the right to speak with counsel only after the forensic examinations had concluded.³⁰ That inference is also reflected in the evidence of Sgt. Johnson, who believed that if there was a concern that the accused could remove evidence of gunshot residue, then “they would not be afforded that right at that time.”³¹ There is some merit to Ms. Brown’s submission that it appears to be a systemic practice. In my view, the evidence would seem to suggest – whether one calls it a systemic practice or unwritten protocol or just a common understanding among officers – that certain processes were put in place, by design, and that the impact of those processes was to impair the applicant’s Charter-protected right.

110I appreciate that one of the contributing factors in the instant case would appear to be the fact that the officers of the WPS Forensic Identification Branch do not work midnight shifts. Hence P.C. Peltier had to be called in from home at 3:23 a.m., and by the time he got to headquarters, got briefed, and arrived in the Detention Centre, it was 4:45 a.m. – more than an hour-and-a-half after Mr. Nyadu had arrived at the Detention Centre and was waiting in his dry cell.

111Having said that, what emerges from the evidence of the police witnesses is that no one seemed to be alive to the s. 10(b) concerns and the requirement to facilitate the exercise of the right to counsel as soon as practicable. Essentially by default here, there would appear to be a fundamental inattention to constitutional standards.

112I agree with Crown counsel that it is not unreasonable for the public to expect that the police officer in charge of a detention centre – the very purpose of which is to restrict the liberties of individuals – would be in a position to know whether a detained person has been able to exercise his right to counsel. As the Supreme Court said in Taylor, the duty to facilitate access to a lawyer arises “immediately” upon the detainee’s request to speak to counsel, and the police are therefore under a constitutional obligation to facilitate the requested access to a lawyer “at the first reasonably available opportunity.”³²

113I also accept that, in the absence of sufficiently cogent evidence in this case, there is no factual foundation upon which Crown counsel can ground an argument that the circumstances of the instant case constitute a legitimate exception to the constitutional imperative that the right to counsel must be facilitated at the first reasonably available opportunity.

114In sum, on the evidence before me, the unexplained failure of the police to facilitate Mr. Nyadu’s s. 10(b) rights “constituted a significant departure from the standard of conduct expected of police officers and cannot be condoned.”³³

115The first inquiry under Grant favours the exclusion of the evidence.

Impact of the breach on the Charter-protected interests of the accused

116The second inquiry under the Grant analysis requires the court to assess the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. “It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive.”³⁴

117In this case, the impact of the denial of the right to counsel was serious. As Wilson J. said in R. v. Debot, the right to counsel is, for the accused, the key that opens the door to all his or her other legal rights.³⁵ The right to counsel “is surely the main safeguard to the citizen that his or her other rights will be respected.”³⁶

118I agree with the observations of Crown counsel that the only way an accused person in detention can know whether he is required to submit to a particular examination or participate in a particular process is if he has access to a lawyer, someone with specialized knowledge and experience. That said, the role of legal counsel is not limited to advising an accused of his or her options where such options exist. The courts have said it is broader than that. The Supreme Court has spoken of “the inherent benefit of knowing one’s legal rights and obligations and the value of having counsel available to dispel uncertainty and provide assurance to the [accused] that the officers do have the authority they are seeking to assert.”³⁷

119It must also be remembered that, being in custody, the accused had no ability to reach counsel unless the police allowed it. Detained in his dry cell, handcuffed, Mr. Nyadu was dependent on the police for the exercise of his Charter rights.

120While, as I have suggested above, the circumstances of the instant case present a search incidental to arrest, the evidence of Mr. Nyadu was that he believed he had a right to refuse to participate in the collection of the gunshot residue samples. For present purposes, I need not decide whether Mr. Nyadu’s belief is well-founded in law or not. However, as the Supreme Court said in Taylor, there is “no need to speculate” about the advice Mr. Nyadu might have received had he been permitted to speak with a lawyer. “It is clear that the denial of the requested access had the effect of depriving him of the opportunity to make an informed decision.”³⁸

121However, it also underscores the point made by Mr. Kavanagh that in cases where an accused is unsure or mistaken as to his legal rights, facilitating access to counsel may well avoid possible unpleasant outcomes where, for example, an accused who mistakenly believes he is entitled to refuse to participate in a given procedure resists the police officers, who might then resort to force, resulting in harm to the accused and/or the officers involved. Facilitating the right to counsel assumes an added importance in such circumstances.

122In sum, the second factor under the Grant analysis also favours exclusion of the evidence.

Society’s interest in the adjudication of the case on its merits

123The third branch of the Grant analysis seeks to assess society’s interest in the discovery of the truth and the adjudication of a criminal trial on its merits.

124Attempted murder and handgun offences are obviously very serious in nature, and there is a corresponding strong public interest in having such offences tried on their merits.

125The evidence of gunshot residue particles on Mr. Nyadu’s hands is real and extremely reliable evidence, the existence of which was confirmed by an independent and expert source. It is directly relevant to the court’s determination of whether the alleged criminal offences were committed.

126While the evidence of gunshot residue particles on Mr. Nyadu’s hands is probative, it bears emphasizing that it is not, of course, conclusive. The evidence of Dr. Gerard, the expert from the Centre for Forensic Sciences, was that there are three possible explanations for the existence of gunshot residue particles found on a person’s hands. The person may have recently discharged a firearm, or he may have been in close proximity when a firearm was discharged, or he may have had the particles transferred to his hands from contact with another contaminated surface. Dr. Gerard could not indicate whether any one of the possibilities was more likely than the others.³⁹

127Whatever may be said about the probative value of the gunshot residue evidence, the evidence is highly reliable and important to an adjudication of the offences on their merits.

128While I acknowledge that the reliability of evidence and the seriousness of the offences in issue must not be permitted to overwhelm the s. 24(2) analysis, I also acknowledge, and adopt as my own, the observation of our Court of Appeal in R. v. Blake that “[s]ociety’s interest in an adjudication on the merits is seriously undercut where highly reliable and important evidence is excluded.”⁴⁰ The exclusion of undeniably reliable evidence must certainly have a negative impact on the repute of the administration of justice.⁴¹

129In my assessment, the third factor favours the admission of the evidence.

Balancing the assessments

130Having weighed all of the relevant considerations, I am of the view that the unexplained failure of the police to facilitate the exercise of the keystone Charter right of access to counsel, and the significant impact of the Charter breach on Mr. Nyadu’s interests, outweigh the public interest in an adjudication on the merits.

131In my view, a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

Conclusion

132Accordingly, I find that the applicant has established, on a balance of probabilities, that his s. 10(b) Charter rights have been breached. His application to exclude evidence pursuant to s. 24 of the Charter is allowed. The evidence of the results of the analysis of the gunshot residue collection from Mr. Nyadu is ruled inadmissible at trial.

Footnotes

1. 1In addition to the alleged s. 10(b) breach, the notice of application asserts that the applicant’s right under s. 8 of the Charter to be free from unreasonable search and seizure was also violated. However, there are no particulars of the breach set out in the notice of application, and counsel did not address the argument in any substantive way, only once referring in passing to the infringement of ss. 8 and 10, in her oral submissions to the court. In the absence of full argument on that ground, I will not deal with the alleged s. 8 breach.
2. 2The DVD containing the video surveillance was marked as exhibit no. 20 on the trial.
3. 3The “Handling Major Crime Prisoners” document was marked as exhibit “S” on the voir dire.
4. 4R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 277; and R. v. Sandhu, 2011 ONCA 124, 103 O.R. (3d) 561, at paras. 41-47.
5. 5R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233.
6. 6R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495.
7. 7Ibid., at para. 21 [citations omitted].
8. 8Ibid., at paras. 24-26 [citations omitted].
9. 9Ibid., at para. 28 [emphasis in original].
10. 10Ibid., at para. 32.
11. 11Ibid., at para. 31.
12. 12Ibid., at para. 30.
13. 13Ibid., at paras. 33 and 35 [emphasis in original].
14. 14R. v. Anderson (1984), 1984 CanLII 2197 (ON CA), 45 O.R. (2d) 225 (C.A.), at p. 431; and R. v. Backhouse (2005), 2005 CanLII 4937 (ON CA), 194 C.C.C. (3d) 1 (Ont. C.A.), at paras. 77-78.
15. 15R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, at paras. 33-43.
16. 16R. v. Backhouse, at paras. 77-78. See also R. v. Stevenson, 2014 ONCA 842, 317 C.C.C. (3d) 385, at para. 58; and R. v. Reid, 2010 ONSC 701 (S.C.J.), at paras. 161-166.
17. 17R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1146.
18. 18R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679.
19. 19R. v. Taylor, at para. 36.
20. 20Ibid., at para. 24.
21. 21Ibid., at para. 35.
22. 22Ibid., at para. 24.
23. 23R. v. Stevenson, at para. 15. See also R. v. David, 2015 ONSC 6940 (S.C.J.), at para. 13, a case that involved a fatal shooting in Toronto; and R. v. Roberts, 2011 BCPC 407, at para. 12, a case that arose in Surrey, B.C.
24. 24R. v. Stevenson, at paras. 40 and 45.
25. 25See, for example, R. v. D.S., 2010 ONSC 7252 (S.C.J.), at paras. 11 and 25; R. v. Williams, 2013 ONSC 1399 (S.C.J.), at paras. 32 and 35; R. v. David, at para. 20, from which it appears that “two other suspects in this matter had been permitted to speak to duty counsel before the gunshot residue tests had been conducted,” although the accused, who wished to speak with his mother, was not given that opportunity before the testing; and R. v. Roberts, at paras. 14 and 17.
26. 26R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
27. 27Ibid., at para. 71.
28. 28Ibid., at para. 72.
29. 29Ibid., at para. 72.
30. 30See para. [53] above.
31. 31See para. [54] above.
32. 32R. v. Taylor, at para. 24.
33. 33Ibid., at para. 39.
34. 34R. v. Grant, at para. 76.
35. 35R. v. Debot, at para. 73.
36. 36R. v. Jacoy, 1988 CanLII 13 (SCC), [1988] 2 S.C.R. 548, at p. 563.
37. 37R. v. Debot, at para. 46, quoting R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495, at pp. 530-531.
38. 38R. v. Taylor, at para. 41.
39. 39I note that the same Dr. Gerard gave similar evidence in R. v. Stevenson, at para. 18.
40. 40R. v. Blake, 2010 ONCA 1, 251 C.C.C. (3d) 4, at para. 31.
41. 41R. v. Grant, at para. 81; and R. v. Stevenson, at para. 72.