COURT FILE NO.: 15-G1054 DATE: 2018/07/13

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – Graham MacDonald Applicant/Defendant

COUNSEL: Tania Nolet and Melody Foerster, for the Crown Diane Condo, for the Applicant, Graham MacDonald

HEARD: May 28-31 and June 1, 2018

REASONS FOR DECISION ON sS. 8, 9 and 10 charter motion

LABROSSE j.

OVERVIEW

1The Applicant, Graham MacDonald seeks to exclude certain evidence and/or obtain a stay of proceedings as a result of certain breaches of the Applicant’s rights which are protected pursuant to ss. 7, 8, 9 and 10 of the Canadian Charter of Rights and Freedoms (the “Charter”).

2The application proceeded firstly with respect to the Applicant’s claim that the loss of some evidence by the Ottawa Police Service (“OPS”) was a breach of the Applicant’s rights under s. 7 of the Charter together with what is commonly known as a Garofoli Application, to determine if there were reasonable and probable grounds for the issuance of the search warrant used to search the Applicant’s home on June 24, 2015. The initial applications pursuant to ss. 7 and 8 of the Charter were dismissed as part of my decision dated March 23, 2018 and reported as R. v. MacDonald, 2018 ONSC 1920. The balance of the Application, being for breaches of ss. 8, 9 and 10 of the Charter proceeded by way of a blended voir dire. At the end of the voir dire, the trial was adjourned to allow for this decision to be made. The trial is set to continue the week of July 16, 2018 for five days.

3The co-defendant, Ashley Allen did not participate in the applications although given that the matter proceeded as a blended voir dire, her counsel participated in the cross-examination of the Crown witnesses.

4The Amended Notice of Application seeks a remedy for the following Charter breaches:

(a) The unlawful arrest of the Applicant by the Ottawa Police Service (“OPS”) and his arbitrary detention contrary to s. 9 of the Charter;

(b) The warrantless search of the Applicant’s vehicle following the unlawful arrest;

(c) The delay in providing the Applicant with his right to counsel;

(d) The unreasonable search at the Applicant’s residence which caused unnecessary damage to property.

5In argument, the Applicant stated that as a result of the evidence, additional Charter breaches were identified. This apparent amendment to the application was not opposed by the Crown. In addition to the four breaches described above, the Applicant raised the following additional Charter breaches which he claims stem from the evidence:

(a) the Applicant was not properly advised of the grounds for his arrest, right to counsel and free legal advice;

(b) the high risk takedown of the Applicant at gunpoint was unreasonable;

(c) the manner of the search of the Applicant’s vehicle was unlawful, unreasonable and based on contradictory and unbelievable evidence; and,

(d) the manner of entry for the search of the residence did not respect the common law duty to “knock and announce”;

(e) the unlawful arrest and detention of the occupants of the residence.

6For the reasons which follow, the remaining portion of the application in respect of ss. 8, 9 and 10 of the Charter, and the additional breaches claimed by the Applicant, are dismissed.

BACKGROUND FACTS

7Information was provided to the OPS by two Confidential Informants (“CIs”) with respect to the alleged trafficking of cocaine by the Applicant from his residence at 377 Abbeydale Circle in the west end of the City of Ottawa. The information led to the setting up of surveillance at the Applicant’s residence on nine days between June 3, 2015 and June 24, 2015. Based on the information obtained from the CIs and from the surveillance of the Applicant and his residence, a search warrant was obtained on June 24, 2015 which permitted the OPS to enter the Applicant’s residence and search for drugs, drug paraphernalia, currency and other items. The warrant was valid from 11:00 a.m. on June 24, 2015 until 23:59 that same day.

8The Crown presented evidence from a number of OPS officers who participated in the surveillance and search of the Applicant and his residence. The nine days of surveillance provided details of a number of brief visits by third parties to the Applicant’s residence at 377 Abbeydale Circle in Ottawa. The Applicant was also surveyed in his vehicle meeting with different individuals for short periods of time. The surveillance team also observed the Applicant attending locations in Carleton Place and in Almonte for similar short visits with third parties and also for an attendance at 79 Bridge Street in Almonte for a suspected drug transaction.

9The OPS members arrived near 377 Abbeydale Circle at approximately 16:30 on June 24, 2015. At 18:33 the Applicant exited the residence but he was not arrested. He left in his vehicle and was followed by the surveillance team to Almonte. At approximately 18:52, the OPS conducted a high risk takedown of the Applicant’s vehicle in Almonte. There were at least four undercover police vehicles involved in the takedown and one officer was seen by the Applicant with his gun drawn.

10The Applicant was arrested by Officer Redmond. His notes do not specify the grounds for the arrest but Officer Redmond testified that he was well aware of the grounds in the search warrant being possession for the purpose of trafficking. He would have told the Applicant he was being arrested for possession for the purpose of trafficking.

11Once the Applicant’s vehicle was safely parked in a nearby parking lot, the vehicle was searched by Officers Bujold and Redmond who found cocaine along with two firearm suppressors. When Officer Bujold found what he believed to be two firearm suppressors, Officer Redmond informed the Applicant that he was also being arrested for having a prohibited device.

12Officer Redmond testified that the Applicant was arrested at approximately 19:01 for possession for the purpose of trafficking and for having a prohibited device. He was searched and found to also be in possession of $1,865.00 in Canadian currency.

13The surveillance team followed and stopped the Applicant while driving unmarked police vehicles. These vehicles were not equipped with transport enclosures to protect the driver and as such, a patrol car was requested to Almonte to assist in transporting the Applicant to the central cell block on Elgin Street. At some point, it became apparent that there was no available patrol car to drive to Almonte and as such, a decision was made to transport the Applicant, who had been cooperative to that point, in one of the surveillance vehicles. The decision was made to drive him back to his residence at 377 Abbeydale Circle and await a patrol car there.

14Upon arrival at the Applicant’s residence at approximately 20:00, there was still no available patrol car and it took some time for an officer assigned to the Neighbourhood Unit to attend with a patrol car and transport the Applicant to the central police station. The Applicant arrived at the central police station at 20:49, was processed and was provided his right to counsel at 21:05.

15At 19:24, OPS members entered the residence at 377 Abbeydale Circle and seized approximately 920 grams of cocaine. There were two occupants in the residence, Ashley Allen and Anthony Yearly who were both initially arrested for possession for the purpose of trafficking. Mr. Yearly was later released as it was determined that he was not involved. Ms. Allen was arrested and detained in the kitchen of the residence for approximately one hour and thirteen minutes as she was also subject to the same transportation issues as the Applicant. Eventually, the transportation issues brought about a decision that she be released on a promise to appear.

16In relation to the search of the residence, the Applicant has claimed that the manner of entry, manner of arrest and detention and the damage caused by the search of the residence have caused various breaches of the Applicant’s Charter protected rights.

EVIDENCE IN RELATION TO THE BREACHES CLAIMED

17I will consider the relevant evidence in relation to the various breaches claimed by the Applicant.

Breach #1 – Grounds for Arrest and Arbitrary Detention

18The Applicant, Mr. MacDonald testified as to the circumstances of the arrest. He first noticed police presence when the vehicle driving in front of him came to a stop after the traffic circle in Almonte and the vehicle behind him bumped him but there was no damage. He saw one officer with his gun drawn and kept his hands up to demonstrate that he was no threat. He was told to put the car in park and turn off the car but he kept his hands up. Det. Grenier opened the passenger door and put the vehicle in park and turned off the ignition. This was done very quickly.

19The Applicant testified that an officer opened the driver’s door, unlocked his seatbelt and he was taken out and handcuffed with his hands behind his back. He immediately said he wanted to call his lawyer. He was put in a van and driven off the main road behind an industrial building. He noticed his vehicle pull up. An officer opened the door of the van and asked: “are you picking up or dropping off”. At some point he was asked if there was anything to know about the residence and the Applicant said he had a dog and asked that it not be hurt. He told the officers that the residence was safe.

20Sergeant Douglas Hill, the affiant for the ITO, was the lead investigator in this matter. He testified that he was aware of the information provided by the two CIs and participated in and supervised the surveillance of the Applicant from June 3 to June 24 up to getting the search warrant. Based on the totality of the evidence, Sgt Hill decided that on June 24, 2015, there was sufficient evidence of drug trafficking to seek a warrant for the house.

21Sgt. Hill testified that he did not seek a warrant for the search of the vehicle based on the information he had on the Applicant. He considered the numerous attendances at the residence by people who attended for short periods of time and the occasions where the OPS suspected that the Applicant used his vehicle. He was under the impression that the residence was used for storing drugs and the vehicle was only used to transport them. As he did not see the vehicle being used for storage, he did not see the need for a warrant to search the vehicle. It was only when the Applicant left the house and the Applicant was arrested in it that it became relevant to search the vehicle incident to arrest.

22Sgt. Hill testified that he briefed Detective Wes Cory when the warrant was obtained and communicated to Det. Cory that there was reasonable and probable grounds to arrest the Applicant for cocaine trafficking.

23Sgt. Hill was cross-examined on the different reasons that people would come to the house or approach the Applicant’s vehicle, other than for drug transactions. He responded that there was a pattern of behaviour based on the information from informants and the observations of the surveillance. He agreed that there could be an innocent explanation for some of the activity but when there are a number of observations that match drug transactions and what informants say, the theory of drug transactions is reasonable.

24Sgt. Hill testified that when the target of a search is mobile when a search warrant is being executed, that person will be stopped and arrested to prevent any interference with the search. Here, they had information that the target had left the city and they did not have time to wait for his return. Before tactical goes in, the main target must be apprehended as tactical will not enter unless the main target is properly contained.

25Det. Cory testified that he was the road boss in charge of surveillance. He was the one to make the decisions about how to proceed with the arrest of the Applicant. He had participated in most of the surveillance and particularly when the Applicant attended at 79 Bridge Street in Almonte on June 11, 2015. After exiting the building, the Applicant placed a small package under the seat of his vehicle and Det. Cory believed he was trying to conceal either drugs or money.

26On June 24, 2015, Det. Cory held a briefing with the members of the surveillance team and advised them that there were reasonable and probable grounds to arrest the Applicant.

27Det. Cory advised that he was the person who decided to arrest the Applicant in Almonte as he believed that the Applicant was on his way to a drug transaction as he had appeared to have done before in Almonte while under surveillance. Det. Cory testified that he believed they had reasonable and probable grounds to arrest. They had viewed the Applicant engage in what they believed was a drug transaction during the surveillance at 79 Bridge Street in Almonte and had seen him place something under the seat of his vehicle. Det. Cory believed he was going back to the same residence for another drug transaction.

28Det. Cory was the only officer who testified that it was raining very hard at the time of the arrest and as such everything was done very fast. No other officer had any recollection that it had rained at the time of the arrest.

29Det. Redmond testified as the arresting officer. He was present during the briefing and noted that Det. Cory provided the grounds which were received from Sgt. Hill. Det. Redmond was satisfied that the Applicant was arrestable.

30During the takedown, Det. Redmond agreed that he had his gun drawn and that he was one of five officers involved in the takedown. He took custody of the Applicant, handcuffed him and arrested him for possession for the purpose of trafficking. The Applicant’s vehicle was removed from the street and the Applicant was read his rights to counsel and the s.524 notice. Det. Redmond’s notes were unclear about the Applicant’s response but agreed that the Applicant may have indicated wanting to speak to his counsel.

Breach #2 – High Risk Takedown at Gunpoint

31The Applicant testified as to the circumstances of the takedown and arrest. There was one officer with his gun drawn who occupied the Applicant’s focus. He did not testify that any other officer had his gun drawn. He was taken to the ground and handcuffed behind his back and placed in a van. He was only on the ground for seconds and not injured.

32Det. Hill testified that there were safety concerns around the Applicant as they had information that the Applicant had a military background in the area of explosives. He was also known to be a wholesale trafficker of cocaine. The Applicant was not arrested until the search was imminent and Det. Cory had reasonable grounds to believe that a further drug transaction was about to occur.

33Det. Redmond testified that he participated in the high risk takedown and had his gun drawn. He was unaware if other officers had their guns drawn.

Breach #3 – Failure to Advise of Grounds for Arrest

34The Applicant did not testify on the grounds given for the arrest by the arresting officer.

35Det. Redmond relied on the grounds provided by Sgt. Hill during the briefing through Det. Cory to conclude that the Applicant was arrestable. He testified that he arrested the Applicant for possession for the purposes of trafficking, read him his rights to counsel and the s.524 warning.

Breach #4 – Unlawful and Unreasonable Search of Applicant’s Vehicle

36Det. Cory testified that he moved the Applicant’s vehicle to a parking lot and that he drove the car for about 15 seconds. He did not notice a bag with white powder in the console but said he was not looking for it. Prior to the tow truck driver leaving, he searched the trunk of the vehicle to ensure nothing could be stolen or lost as the vehicle was being towed. Also, they had found cocaine and a silencer and thus it was reasonable to search the trunk.

37Det. Bujold testified that he searched the Applicant’s vehicle after the takedown. He was aware that the Applicant was in custody but unsure where he was when he started the search of the vehicle which was off the roadway. He did not move the vehicle. He stated that he immediately identified a bag of cocaine in the cup holder and identified Exhibit 18 as being consistent with what he found. He agreed that you could not miss the bag of cocaine in the cup holder. A sample was taken from that bag and it tested as being cocaine. He also found a black cell phone, a metal cylinder that he identified as a suppressor for a firearm and a baffle which he also identified as a suppressor. He also found a photocopy of the Health Card and the expired driver’s licence of the Applicant.

38During the search, Det. Bujold agreed that he may not have told Det. Redmond that he found cocaine in the car but he may have advised him when he found the suppressor as he would have been concerned with officer safety. He also found the keys to the vehicle and removed the house keys from the key ring.

39Det. Redmond also testified that he participated in the search of the Applicant’s vehicle and left the Applicant in the presence of Det. Cory during the search. He said he searched back seat, trunk and the front door of the vehicle with Det. Bujold and stated that it is common to search with another officer. Det. Redmond recalls that Det. Bujold advised him of finding cocaine and as suppressor. His IA made no mention of being told about cocaine but later in the report, he acknowledges being told about the cocaine but cannot recall when he was told that by Det. Bujold. On finding the suppressor, Det. Redmond advised the Applicant that he was also under arrest for possession of a prohibited device.

40Det. Grenier testified about his dealings with the Applicant’s vehicle as being limited to reaching into the vehicle after the takedown and putting the vehicle in park and turning off the ignition. He did not see any cocaine in the console but he was not focused on looking for evidence.

41Det. Grenier testified that he moved the Applicant’s vehicle to the back of an industrial building nearby and did not notice the bag of cocaine in the console but was not concerned with searching. Det. Grenier was certain he moved the Applicant’s vehicle but could not rule out that Det. Cory may also have moved the vehicle after Det. Grenier did.

Breach #5 – Delay in Providing Rights to Counsel

42The high-risk takedown of the Applicant’s vehicle took place at 18:52 and the search of the vehicle began at 19:00. The Applicant testified on the delay in being driven downtown to the central cell block. He stated that he told the officers at the arrest that he needed to go to the washroom but was not able to go to the washroom until he arrived downtown. He felt like it was a long time before getting downtown. The Applicant testified that he asked to speak to his lawyer a number of times.

43The Applicant testified that he noticed that the officers involved around him were frustrated by the delay in getting transportation. During the time in transportation, the Applicant was not asked about the charges. He was aware of his right to counsel and his right not to speak. He was not asked about drugs in the house and felt that the officers’ safety concerns were legitimate.

44At 19:38, Det. Cory was advised that there were no available units for the transport of the Applicant. Det. Cory testified about the problems with transportation after the arrest in Almonte. The Applicant’s vehicle had been towed away and there was a collective decision between Det. Cory, Det. Redmond and Det. Bujold to transport him in an undercover vehicle despite the safety concerns to get him back into the City of Ottawa as soon as possible and to the station so he could get to the cell block and call his lawyer.

45When asked about the possibility of having the Applicant use Det. Cory’s phone to call his lawyer, Det. Cory testified that this was not possible. He had personal and confidential information on his phone and there is no privacy for the accused person as they are in the middle of a parking lot in Almonte.

46Det. Bujold was of a different opinion. He initially was of the same view as Det. Cory and expressed similar concerns about giving the officer his phone or letting the accused use his own phone. However, he stated that since then he has reconsidered his opinion and that he would have advised the lawyer of choice that it was not a confidential call and would have put his phone to the ear of the Applicant despite his hands being handcuffed behind his back, and allowed for him to make the call to the counsel of choice.

47On the issue of giving access to a phone on the road, Det. Redmond stated that he would not be using the accused’s phone as it is evidence and said that using a police issued phone is not good practice.

48Det. Bujold testified that he would have maintained a discussion with the Applicant while driving in the unmarked vehicle. He would have wanted to keep the discussion light to avoid having the Applicant think too much of his circumstances and possibly getting distraught. They had a cordial discussion but there was no evidence of Det. Bujold trying to further the investigation. He agreed that he would have told the Applicant that if he does anything during transport, Det. Bujold will drive the car into the ditch. He dropped off the Applicant at the residence at 20:03.

49Det. Hill’s evidence did not disclose any attempt to illicit information to further the investigation when the Applicant arrived at the house and remained detained. He spoke to him about if there were any safety issues surrounding the search given the Applicant’s military background.

50When the Applicant testified on the circumstances of his arrest, he made no reference to any efforts to illicit information from him prior to the Applicant being given his right to counsel.

51Det. Hill did not recall that the Applicant asked to speak to his lawyer but said it was very possible. He testified that it is common practice to encourage an accused to “flip” and become an informant for other drug traffickers and he recalled telling the Applicant that they would speak at the cells. When no transport was available, Det. Hill asked his wife, Officer Cybulski, on neighbourhood patrol to come assist with transportation. The Applicant arrived back at his residence at 20:03 and Officer Cybulski arrived with transportation at 20:23.

52Det. Redmond testified to the decision to transport the Applicant in the unmarked vehicle and how this decision was based at least partly on the fact that the Applicant had been cooperative and the officers did not feel that he was a threat. Det. Redmond followed Det. Bujold back to the Applicant’s residence. He testified that it was important to get him back to Ottawa as soon as possible to fulfill rights to counsel and avoid unreasonable delay. As such, they went against OPS policy and transported him themselves.

53Cst. Cindy Cybulski testified that she arrived at 377 Abbeydale Circle at 20:20, took custody of the Applicant, provided a caution and 524 warning at 20:23 and transported him to central cellblock. The Applicant arrived at the cells at 20:49 and the Applicant was able to call his lawyer at 21:05. Cst. Cybulski testified that she had not been available earlier to assist in transporting the Applicant as she was occupied on another call.

Breach #6 – Manner of Entry into the Applicant’s residence

54The Applicant testified to the damage to the front door, that the door was dented from the ram and that the locking mechanism and frame were shattered. This damage has been repaired.

55As an officer with the tactical unit, Cst. Ben Moores testified about the entry at 377 Abbeydale Circle on June 24, 2015. The plan was to make a forcible entry and rapidly dominate the structure and secure the occupant.

56Cst. Moores testified that the tactical unit arrived on scene at 19:21. At 19:24 there was a mechanical breach to the front door and at 19:28 the house was secure. Cst. Moores located a female in the kitchen who identified herself as Ashley Allen. After he arrested her, he turned her over to the detectives at 19:30. He indicated that the role of the tactical unit is to detain everybody and the detectives will determine if they will charge the person.

57On cross-examination, when asked the difference between detaining and arresting, Cst. Moores agreed that his role is more in line with detaining the occupants of the house and the detectives will determine who must be arrested and charged. He agreed that his Investigative Action Report stated that he arrested Ms. Allen. He also stated that the practice now is to detain. Back then, it was up to the detectives to decide who they arrest.

58Det. Moores stated that they used a ram to force open the door and that it will normally cause damage to the door. They enter with a long rifle and the breacher will often have a pistol. Det. Moores said his practice is to point his gun to the ground.

59On re-examination, Det. Moores stated that the main purpose of the tactical unit is to secure the occupants and detain them for the detectives who will decide who is arrested and charged. He confirmed that his practice is not to provide cautions as he turns the occupants over to the detectives in 1 or 2 minutes.

Breach #7 – Manner of Execution of the Search at the Residence

60The Applicant testified as to the condition of the residence when he returned home the day following his arrest. Ms. Allen and her mother were there cleaning for hours. The bottoms of sofas where slashed open, at least two cold air returns were torn out and drywall damaged, one being in the living room.

61The Applicant testified to the damage to his laptop that was lying on the floor with clothing on it. The monitor was destroyed but it can still be connected to a television. The screen no longer functions. The Applicant agreed that with the clothes on the ground, the laptop may have been stepped on by accident but he stated that when he left, the laptop was in its usual place in the cubby of the fireplace unit.

62Other than the drawers being ripped out of the nightstand, cold air return covers damaged and two sofas cut, there was no other damage to furniture. The Applicant did not provide any photographs of the torn couches. The Applicant agreed it was not major damage but felt it was a nuisance, disrespectful and unprofessional.

63Further, the front door was rammed, has a large dent and the locking mechanism was shattered along with the wood frame on the locking side.

64Det. Hill testified about the damage to the house during the search. Other than the damage to the door lock and the jam, the door was not off its hinges and he did not recall any other significant damage. He did a walkthrough of the house and did not notice any particular damage. He did acknowledge that during a search, things will be turned upside down due to the ability to conceal substances.

65With respect to the manner of the search, Det. Hill testified that no photographs were taken of the cocaine and where it was located, the cash or otherwise of the interior of the house. Det. Hill testified that at the time, he only had a camera issued with a 400mm lens and this is solely for surveillance. A 400mm lens is only useful for surveillance.

66Detective Cory testified about his role in the search of the Applicant’s residence. He searched the bedroom of Alexa Gadek and searched the living room to the left of the front door. It had an L shaped couch. He seized various objects including documentation consistent with the home being in the ownership of the Applicant.

67During the search, Det. Cory did not use any tools and had no recollection of damage. He did not recollect any damage to the residence, but acknowledged that it can happen as drugs can be hidden in areas such as behind vents and drywall. He said some vents pop off without much damage and others require a screwdriver. When asked if he cut the back of the sofa, Det. Cory said that he could not recall but that possibly he did. He testified that he did not see or damage a laptop.

68Det. Hill denied any knowledge of the damaged laptop or the nightstand drawers on the ground with ball bearings on the floor. He testified that he did a walkthrough of the house prior to the search beginning for safety hazards and he returned at the end to ensure all officers were out, no duty books were left behind and that the house was secure with no windows open. Otherwise, he did not do a post-search inspection.

69Det. Bujold also testified about his search of the residence. He has a multi-tool for removing air vents but he does not recall going into the car to get it. He testified that there can be occasions where the grounds exist to take furniture apart but stated that you have to have grounds to believe something is there. He agreed that it is common to remove a drawer to see if there is something behind it but he has no recollection of damage being done. He had no memory of handling a laptop. He did not recall ripping the cold air return covers off the wall and said he has a tool for removing them.

70He also searched one of the two nightstands. He said he walked through the kitchen but did not notice any drugs in open view. Had there been drugs in open view, he would have noticed them.

71Det. Redmond testified to the messy nature of the master bedroom. He did not have to take anything apart and he would routinely lift air registers and leave them off to show others he has searched there. If items are screwed down, you can normally look in with a flashlight but if need be, he will unscrew. He says that in his experience, but for a time he needed to remove a mirror, he has never damaged anything. He did not recall seeing a laptop anywhere in the room.

72Det. Gilbert testified to the messy state of the kitchen when he found it. He left it in a state consistent with how he found it. He did not observe any damage, did not take anything apart and did not use any tools.

73Cst. Levesque testified about his role in entering the residence as part of the tactical unit. He described two types of entry, with the first being dynamic if disposable evidence and stealth if high risk. The dynamic entry is used when the evidence sought is disposable. He defined disposable evidence as drugs and child pornography.

Breach #8 – Unlawful Detention and Arrest of the Occupants of the Residence

74Det. Hill was aware of Mr. Yearly who was detained at the scene. Det. Hill concluded that Mr. Yearly did not have control of the residence and his reason for being there was legitimate and easily corroborated as he was building a fence.

75Det. Hill testified as to the grounds to detain and arrest Ms. Allen. She lived at the residence as there were identity documents found and her clothing appeared to be there. The cocaine was in the kitchen and the scale in plain view. Det. Hill thought it was reasonable that she had knowledge if not control. She was initially detained but ran into some of the same issues in regards to transportation. Due to the unavailability of secure transportation, she was released on a promise to appear.

76Det. Redmond testified that he participated in the search of the master bedroom and found a passport in the name of Ashley Allen.

77Det. Gilbert testified about taking Ms. Allen into custody at 19:30 and read her the primary and secondary caution and the s. 524 notice. Det. Gilbert assumed that Det. Moores detained Ms. Allen and Det. Gilbert therefore did the arrest. He had no notes of advising Ms. Allen of the grounds of her arrest, but stated that he had an independent recollection of arresting her. He relied on his Investigative Action (IA) which states that he took custody of her, identified himself and told her she was arrested for possession for the purposes of trafficking.

78When discussing the grounds to arrest Ms. Allen, Det. Gilbert stated that he was satisfied there were grounds to arrest as she was located within a house where judicial authorization has been granted for a search and as such, they arrest the occupants with the objective of determining their role at a later point through the lead investigator. Det. Gilbert stated that he stayed in the kitchen with Ms. Allen from 19:32 to 20:45 while waiting for transportation.

79At 20:50, Det. Gilbert began his search of the kitchen. He found cocaine in plain view in the kitchen and also found a bag containing almost a kilogram of cocaine in one of the kitchen cupboards together with other known items which the police identify as being associated to drug trafficking. Because of the mess in the kitchen, it was not until he was standing over that portion of the kitchen counter that he could see the items in plain view. In addition, there were three bags of cocaine in plain view. One had 18 grams of cocaine in it but was hidden behind the food saver. The other two bags containing 1.8 grams and .55 grams were more visible. Det. Gilbert noted that the kitchen was very messy with a lot of stuff on the counters ranging from food, dog food, cat food and dirty dishes. Det. Gilbert spent approximately 1.5 hours in the kitchen with Ms. Allen and did not see the drugs in plain view. He stated that it was because he had not yet started his search.

80Det. Gilbert acknowledged that there may have been food on the counter in the kitchen, but denied that he would have thrown food on the ground during the search of the kitchen. He did not recall seeing any food on the ground in the kitchen.

81In cross-examination, Det. Gilbert was challenged on the absence of any reference to the arrest or grounds for arrest in his notes and IA. He remained firm in his evidence that by noting that he took custody of and cautioned Ms. Allen, this means to him that he arrested her and told her the grounds of the arrest. He also referenced an Arrest Report that is completed when a person is arrested.

82Det. Grenier testified about his role in the arrest of the occupants of the residence at 377 Abbeydale Circle. He took custody of Anthony Yearly from Cst. Levesque and gave him his right to counsel and 524 warning. Mr. Yearly was advised of his arrest for possession for the purpose of trafficking based on the grounds of being located in a residence suspected of containing drugs and he was being arrested for the purpose of the investigation of that offence. Det. Grenier was also aware of the surveillance evidence involving the residence but was not aware at the time of arrest if Mr. Yearly had any ownership interest or control of the residence. Ultimately, he was released unconditionally at 19:40.

83Cst. Levesque of the tactical unit described the briefing by Sgt. Hill at 18:05. He was advised of a warrant for the residence at 377 Abbeydale Circle and that there were grounds to arrest for possession for the purpose of trafficking. The target suspect was the Applicant who had military experience or experience in combat training.

84Cst. Levesque testified that upon entering the residence, he went to the living room and arrested Anthony Yearly for possession for the purpose of trafficking. He relied on the grounds for arrest given to him by Sgt. Hill during the briefing. On cross-examination, he admitted that his notes only say “trafficking” but maintained that he would have told Mr. Yearly he was arrested for possession for the purpose of trafficking cocaine. Cst. Levesque also confirmed that he was told by Sgt Hill that they had grounds to arrest anyone in the house. At the time of entry, he was not aware that the Applicant had been arrested elsewhere.

Analysis

Breach #1 – Grounds for Arrest and Arbitrary Detention

85The Applicant argues that the OPS failed to take the required steps to ensure that the Applicant’s Charter protected rights were respected. This began by misconstruing the difference between a search warrant and an arrest warrant. The officers responsible for the operation new what a Feeney Warrant was for and failed to obtain one.

86The Applicant relies on this Court’s decision in R. v. Lacroix, 2016 ONSC 3052 in support of its position that a search warrant is an investigative tool used to acquire reasonable and probable grounds to arrest.

87In R. v. Storrey, [1990] 1 S.C.R. 241 at para 17, the Supreme Court of Canada determined that “reasonable grounds” include both a subjective and objective component. The arresting officer must subjectively believe he has grounds to arrest and that belief must be objectively reasonable.

88It is also well established that police officers may form the ground for arrest based on information received from other sources: see R. v. Anang, 2016 ONCA 824 at para 14.

89While the Applicant acknowledges that Det. Cory may have had the subjective element of reasonable and probable grounds, the grounds are not objectively justifiable.

90In consideration of the alleged breach of s. 495 of the Criminal Code, the court must consider the totality of the circumstances in examining whether there reasonable and probable grounds for the arrest.

91The facts of the present case are very distinguishable from the facts in Lacroix. In that case, the police had intercepted communications that the accused was looking to sell some firearms. There was no evidence that the firearms could be other than in the house or that the accused was about to commit an indictable offence when he was arrested. He was actually driving with his daughter in the back seat of the car.

92In the present case, I accept the evidence of Sgt. Hill and Det. Cory who authorized the arrest and takedown on the issue of the reasonable and probable grounds for the arrest. The evidence they relied upon to obtain the search warrant is also available to establish the reasonable and probable grounds for the possession for the purpose of trafficking. Specifically, the informants` information about drug transactions in communities outside the City of Ottawa, the overall surveillance and particularly the previous surveillance at 79 Bridge Street in Almonte which provided some very relevant surveillance with relevant indicia of a drug transaction in Almonte and the need to secure the Applicant as the target of the investigation prior to the search justified the need to stop the Applicant and arrest him.

93In Lacroix, the evidence was limited to an intercepted communication where the accused was using coded language to discuss the possible sale of firearms. Here, the police had recent information from CIs about the sale of cocaine from the residence and information about the sale of cocaine in the area of Almonte from the Applicant’s vehicle. I accept that Det. Cory had the required subjective grounds to believe that the Applicant was heading to Almonte for another drug transaction and that in the totality of the circumstances, those grounds were objectively justifiable.

94I also note that this was not the first time that evening that the Applicant was mobile in his car. He had been followed to the hardware store to buy a level earlier in the evening and the OPS simply surveyed him and followed him back to the residence. In my view, the OPS properly waited until the execution of the search warrant was imminent and also waited until he was surveyed going back to an area where they had reasonable grounds to believe that he was going to commit a further drug transaction.

95I also find that the analysis of Nordheimer J. (as he then was) in R. v. Lucas, 2009 ONSC 69326 is equally applicable when considering the redundancy of a search warrant and a Feeney Warrant. In the present circumstances, the intention was that the Applicant would be arrested as part of the search of his residence. When he left and headed to Almonte, this supplemented the grounds for arrest and added the component of Det. Cory believing that he was on his way to commit a further drug transaction. The OPS was not simply acting on a hunch. The totality of the evidence demonstrates that the grounds for arrest were both subjectively and objectively justifiable.

96Consequently, the Applicant’s arrest was lawful pursuant to s. 495 of the Criminal Code and as such there was no arbitrary detention in breach of s. 9 of the Charter.

Breach #2 – High Risk Takedown at Gunpoint

97With respect to the manner of the Applicant’s arrest, the Applicant relies upon R. v. Pino, 2016 ONCA 389 in support of his position that the manner of the high risk takedown was unreasonable in the circumstances.

98The circumstances of this case are factually distinguishable from the facts in Pino. The context is different with the Applicant being known to police as being a wholesale trafficker of cocaine with a military background which differentiates him from other targets. In addition, the actions by police are quite different. There was no use of balaclavas which would have the effect of intimidating the Applicant. The Court also made important findings about the conduct of the officers in that case.

99The Applicant’s evidence was that only one officer had his gun drawn and there is no evidence if the gun was pointed at the Applicant. While the observation of the gun drawn certainly had an effect on the Applicant who would not lower his hands to put his vehicle in park or turn off the ignition, there is no evidence that the officer used the gun excessively. Otherwise, the evidence of the Applicant is that he was removed from the vehicle, temporarily put on the ground to be handcuffed and there is no claim to the use of excessive force.

100The evidence of the OPS officers involved in the takedown is consistent with the evidence of the Applicant is almost all respects. There are certainly not the same intimidation factors as are found in Pino in this case. I am satisfied that the objective of the OPS to prevent the Applicant from committing a further offence of trafficking in Almonte and the need to contain him prior to the search being conducted warranted that he be stopped while in his vehicle. The manner of executing the takedown was in all the circumstances reasonable.

101I conclude that the Applicant has not satisfied me on a balance of probabilities that the manner of the arrest was unreasonable.

Breach #3 – Failure to Advise of Grounds for Arrest

102The Applicant relies on the findings of the Court of Appeal in Pino in support of his position that the information contained in the notes and investigative action of Det. Redmond are insufficient to establish that the Applicant’s rights under s. 10(a) and 10(b) of the Charter where respected. The Applicant challenges both the information and implementation requirements of rights guaranteed by section 10(a) and 10(b) of the Charter.

103The Applicant relies on the evidence of Det. Redmond and states that his notes are deficient. Who did not have detailed notes of the arrest of the Applicant. Furthermore, Det. Redmond did not specifically testify to having read from his duty book when providing the cautions. Thus, the Applicant relies on Pino in support of his position that the information provided about the right to counsel was deficient: see Pino at para 27-28.

104In considering the principles relied upon in Pino for the s. 10(b) breach, it is important to consider the facts of that case as they were before the Court of Appeal. In Pino, one of the arresting officers admitted that he was not carrying his duty book, which contained a pre-printed “rights to counsel” card. Instead, he relied on his memory and he had difficulty describing what he told the accused. The trial judge made a finding of fact that the information provided was deficient.

105In the present case, the Accused did not testify to what he was told at the time of his arrest. Consequently, the evidence required for the Applicant to establish a breach of ss. 10(a) and 10(b) of the Charter must be found in the evidence of Det. Redmond.

106Contrary to the submissions of the Applicant, I have specifically listened to the evidence of Det. Redmond who testified that “he was read his rights to counsel caution, s. 524” His evidence on having read the cautions allows me to conclude that he was reading from his duty book notes when he provided the caution on the rights to counsel and the s.524 notice. He was not challenged on this issue and as such I conclude that he read from his duty book and that he was not going from memory as was the case in Pino.

107As stated, the Applicant did not testify on this point and did not identify what was and what was not said to him at the time of his arrest in respect to his right to counsel and the s.524 notice. As such, I accept that he read the cautions to the Applicant from his duty book and thus fulfilled the obligations of sections 10(a) and 10(b) of the Charter.

108Based on the available evidence from Det. Redmond, the defence has failed to satisfy me on a balance of probabilities that there was any breach of ss. 10(a) or 10(b) of the Charter in the circumstances surrounding his arrest after the takedown.

Breach #4 – Unlawful and Unreasonable Search of Applicant’s Vehicle

109Having concluded that there were reasonable and probable grounds for the arrest and that the arrest was thus lawful, the search of the Applicant’s vehicle becomes an authorized search incident to arrest. The Applicant did not argue that the purpose of the search of the vehicle is not connected to the arrest given that the Applicant is suspected of trafficking cocaine from his vehicle and that he was in his vehicle at the time of the arrest.

110When considering the manner of the search, the Applicant claims that it was not reasonable. Firstly, the Applicant contends that it would be impossible that none of Det. Bujold, Det. Grenier or Det. Cory would have seen the bag of cocaine in the vehicle when they were in it. Both Det. Cory and Det. Grenier claim to have driven the Applicant’s vehicle and did not see it.

111I question the reliability of Det. Cory’s evidence concerning the takedown and the arrest when he states that it was pouring rain and that he drove the Applicant’s vehicle. His evidence raises questions in the face of the other officers who participated in the takedown and arrest. However, I found Det. Grenier to be reliable in his evidence about reaching into the vehicle and putting it in park and turning off the ignition. He was confronted with Det. Cory’s evidence that Det. Cory moved the vehicle but Det. Grenier’s evidence was not shaken and he was able to testify in a very credible manner as to his role. He also testified to having kept the keys.

112On the issue of the bag of cocaine in the console, I accept the evidence of Det. Grenier that he did not see it when he reached into the car to put it in park and turn off the ignition. Given the circumstances of the dynamic takedown, I accept that he may not have seen the bag of cocaine in the console.

113This leaves the evidence of Det. Grenier that he did not see the bag of cocaine while moving the vehicle. It is certainly at odds with the evidence of Det. Bujold that you could not miss it. However, there was no evidence by the Applicant on the issue.

114The fact that neither or both Det. Cory or Det. Grenier failed to see the bag of cocaine in the console is of concern to the Court. It does not however allow me to conclude on a balance of probabilities that the cocaine in the vehicle was planted or that the evidence of Det. Bujold of having found the cocaine in the console is unreliable. I also note that there is some evidence that the bag of cocaine in the console may not necessarily have been visible in all angles. I highlight the photograph at Exhibit 43(c) where the paper in the console is not visible from the passenger side angle of that photograph.

115Regardless, I am unable to conclude that because the officers who went into the vehicle did not see the bag of cocaine when they were not tasked with searching the vehicle, that this would allow me to conclude that the bag of cocaine was planted or that the search of the vehicle was otherwise deficient or unreasonable. On this issue, the Applicant has failed to demonstrate a breach of s. 8 of the Charter.

Breach #5 – Delay in Providing Rights to Counsel

116The Applicant contends that the delay in providing him with his right to counsel for over two hours while handcuffed in the back of a police vehicle was a breach of the Applicant’s s. 10(b) Charter rights. The Applicant relies on the decision of the Ontario Court of Appeal in R. v. McGuffie, 2016 ONCA 365 in support of his position that the police had a duty to facilitate the Applicant’s right to retain and instruct counsel without delay and the right to be informed of that right without delay.

117The Applicant challenges that Det. Redmond’s evidence establishes that the right to counsel was communicated without delay. I have already concluded that I am not satisfied that there was a breach of the informational component of s. 10(b).

118There is no doubt that the simple fact that it took just over two hours for the Applicant to be provided with his right to counsel raises concern with the Court as to the reasons for such delay. Still, the Court must consider the totality of the circumstances. During the argument, the Court raised the issue that when the police are preparing to execute on a warrant and that arrests are probable, what are the obligations of the police to ensure that transportation is available to ensure that the arrested person may exercise his Charter protected rights?

119I start with the observation that in preparation for the execution of the search warrant, the OPS would have anticipated that the Applicant would be in his residence but there would have been no such guarantees. However, it was likely not anticipated that the Applicant would leave the City of Ottawa and travel approximately 20 minutes from his residence in the west end of Ottawa prior to being arrested. Thus, the OPS could not have anticipated the need for transportation to be available in Almonte.

120The takedown and arrest were completed by 19:05 at the earliest as Det. Grenier arrived back at 377 Abbeydale Circle at 19:25 and it was roughly a 20 minute drive from the location of the takedown to the Applicant’s residence. The search of the vehicle started at 19:00. In a perfect situation, where the arrest takes place outside the limits of the City of Ottawa, there would be an expectation that transportation must firstly be located, be made available from whatever duties such officers are doing and then travel to the location of the arrest. From there, the Applicant would have been taken into custody by such officers in charge of transportation and returned to the central cell block.

121The evidence is that it took roughly 15 minutes to arrest and search the Applicant and the vehicle. One could reasonably attribute 30 minutes to find transportation and to allow the time for the secure police cruiser to travel to Almonte. It took Det. Bujold 20 minutes to travel with the Applicant to return to 377 Abbeydale Circle and also 25 minutes for Cst. Cybulski to travel to the central cell block. There was then 15 minutes to parade the Applicant before the Sergeant and then have him processed and provided his right to counsel. Roughly, in a reasonably normal situation, all these steps require roughly one hour and forty-five minutes to get the Applicant to the central cells to exercise his right to at 21:05. In the present circumstances, it took two hours and 13 minutes. This essentially attributes 28 minutes of excess delay attributable to the absence of available transportation to go to Almonte and return the Applicant to the central cells. I appreciate that some time was lost as the Applicant was not transferred directly from Almonte to the central cells.

122The Court must not limit its analysis to the amount of time attributable to excess delay, but there must also be a qualitative analysis done to assess how this excess time was used by the police. In these circumstances, there is no evidence that the police made any attempts to further the investigation during a period where the Applicant was in legal jeopardy.

123Evidence was also received by the Court about the possibility of providing the Applicant with his right to counsel from the back of the police cruiser or from a pay phone. Det. Bujold testified that it was something that he would do today. I disagree. I prefer the evidence of the various officers who testified that it is impractical to provide an accused with his right to counsel from the back of a cruiser, on a police cell phone or on the accused’s cell phone or from a payphone nearby. I certainly do not understand the law in matters involving s. 10(b) of the Charter and the right to counsel to have evolved in this direction.

124I accept the evidence heard from various officers who testified in these proceedings that there are security issues surrounding a practice of providing an accused person with a police cell phone for use at the scene of an arrest. There are also evidentiary issues that surround giving an accused person their own cell phone and allowing them to tamper with what may be evidence, particularly in a drug trafficking case. There is also the issue of a lack of privacy for the accused to properly exercise his rights to counsel and control of who an accused is calling if a cell phone is given to him. In these circumstances, there was a pending entry into the residence and there is no evidence of the availability of a payphone. Finally, a right to counsel is normally exercised at the police station where a list of lawyers is provided to an accused to choose from. Are police officers involved in arrests going to be expected to have such a list available for calls to be made from the point of arrest?

125Consequently, I reject the submission that the arresting officer should have provided the right to counsel from a cell phone at the point of arrest.

126This leaves the question of determining if the additional delay of approximately 30 minutes, in the circumstances of an out-of-town arrest where a marked cruiser is unavailable, to be an unreasonable delay.

127When considering the criteria set out in R. v. Willier, [2010] 2 S.C.R. 429 at para 29, I conclude that:

(a) the evidence of Det. Redmond establishes that the Applicant was informed of his right without delay;

(b) the evidence is that Dr. Redmond read the right to counsel and the s. 524 notice form his duty book. There is no evidence from the Applicant that he was not advised of the existence and availability of legal and duty counsel;

(c) the Applicant communicated to the various officers that he wanted to exercise his right to counsel immediately after his arrest and that in the circumstances, he was provided with a reasonable opportunity to exercise that right, albeit just over two hours after his arrest; and

(d) that the OPS refrained from eliciting evidence from the accused until he had the reasonable opportunity to exercise his right to counsel.

128I accept the evidence of the various witnesses that efforts were made to find transportation, that the officers involved were certainly very frustrated with the delay in finding transportation, that the officers were conscious of the need to get the Applicant to the central cells to exercise his rights to counsel and that they took exceptional steps to provide that right by transporting the Applicant in a non-secure vehicle back to the residence and pulling a cruiser off the neighbourhood patrol to provide transportation. In all the circumstances, I conclude that the OPS acted in a reasonable manner, that they attempted to mitigate the delays and that overall, the Applicant was provided with his right to counsel without unreasonable delay in the circumstances.

Breach #6 – Manner of Entry into the Applicant’s residence

129The Applicant relies on R. v. Thompson, 2010 ONSC 2862 at para. 44 in support of his position that the policy of the OPS to have an automatic dynamic entry where there is disposable evidence is unconstitutional. In Thompson, that court stated that the requirement is that the police have sufficient information in their possession to justify the particular use of force and that the Crown elicit evidence to that effect on the s.8 Charter application.

130The issue of the “knock and announce” rule is further explored by Nordheimer J. (as he then was) in R. v. Lucas, 2009 ONSC 69326 who noted the exceptions to the requirement to give notice which include to prevent the destruction of evidence.

131Although the Applicant was not present at the residence at the time of execution of the search warrant, there is no doubt that the owner of a house has an expectation of privacy which would not prevent the Applicant from relying on the common law doctrine of “knock and announce”.

132I agree with the Applicant that the apparent policy of the OPS to dispense with the “knock and announce” requirement in what is seemingly all cases where drugs or child pornography are being sought is too broad and properly needs to be assessed on a case by case basis. The use of the dynamic entry in all such cases is consistent with the evidence of the members of the tactical team who testified in this proceeding. However, no formal OPS policy was presented in evidence.

133These circumstances are quite similar to those in Lucas at para. 19 given that the Applicant was identified as a trafficker of cocaine at the wholesale level and there was evidence of his military background. It must also be noted that the evidentiary framework to ground an exception to the “knock and announce” rule is not high: see Lucas at para. 20. While there is no evidence that the information about the suppressor found in the Applicant’s vehicle was communicated to the members of the tactical unit, the status of the Applicant as a wholesale drug trafficker and the knowledge of a military background does create an evidentiary framework to allow the police to deem it inappropriate to knock and announce.

134In my view, there were grounds for the police to be concerned for the destruction of evidence and also partly on a safety issue in light of the Applicant’s military background. When viewed globally, and despite the Applicant having already been taken into custody, this evidence provides the required evidentiary framework to ground an exception to the “knock and announce” rule.

Breach #7 – Manner of Execution of the Search at the Residence

135As set out in R. v. Fernandes, 2009 ONSC 67662, there is a constitutional presumption of validity with respect to a search conducted pursuant to a search warrant. The Applicant bears the evidentiary and persuasive burden of establishing on a balance of probabilities the unreasonableness of the search.

136The Applicant relies on the damage alleged to be caused by the police during the search as the basis for his claim to a breach of his s. 8 protected Charter rights. In support of his claim, he relies on hearsay evidence from Ms. Allen’s mother about the condition of the house, some physical evidence he claims was damaged during the search (cold air return cover and a laptop) and photographs of the damage after repair and repainting. For some items as the front door and the sofa, he only relies on his evidence of the damage and provides no photos and in particular, no photos of the damage at or about the time of the search. No witness present at or shortly after the search was called to testify other than the Applicant.

137As stated during the argument on this breach, I am not satisfied that the Applicant has met the evidentiary burden of establishing on a balance of probabilities that there was unreasonable damage to the residence and if such damage existed near the time of the search, that such damage was deliberate, unnecessary and caused by the police.

138There was no acknowledgement of any specific damage to the residence of the Applicant by the members of the OPS who testified. While there was an acknowledgement that damage can happen such as removing cold air return covers (most witnesses said they would use tools) and the need to cut the bottom of a sofa to search for hidden contraband, there was no evidence that the police were aware of damage during this search. The OPS were not notified at the time of the search of the damage and did not have an opportunity of viewing it. However, Det. Cory did not rule out that he may have caused some damage. He simply could not recall any damage.

139In the end, the Applicant has failed to meet the required evidentiary requirements to claim such a breach:

a. There was no complaint made at the time which could have been investigated;

b. there are no photographs of the home on the day of the search or soon thereafter;

c. there is no acknowledgement by the OPS of any damage;

d. there is no corroborating evidence that the damage was caused by the OPS; and

e. the damage to the front door can be deemed necessary for the dynamic entry which had been found reasonable. As for the cold air return cover, this damage is minor.

140Overall, the Applicant’s evidence is insufficient for the Court to conclude on a balance of probabilities that the damage claimed by the Applicant was actually done during the search or that the OPS acted unreasonably in the manner in which it conducted the search.

Breach #8 – Unlawful Detention and Arrest of the Occupants of the Residence

141During argument, counsel for the Applicant acknowledged that her client was already in custody at the time of the detention of the occupants of the residence. He cannot claim a breach of his s. 9 Charter protected rights based on their alleged unlawful detention. Neither of the occupants of the residence at the time of the search have claimed a breach of their Charter protected rights.

142Counsel for the Applicant acknowledged this and stated that this alleged Charter breach was more relevant as part of a s. 24(2) analysis which could be made in these proceedings when looking at the available remedy from a breach. Given that I have found no breach of s. 495 of the Criminal Code or of any of the Applicant’s Charter protected rights, the issue becomes moot.

143I note however that the evidence in this application did reveal that there is possibly some confusion by members of the OPS when executing a search warrant as to when they should be detaining occupants and when they should be arresting occupants. This is an important distinction which does not seem to be well understood by some of the officers who testified in this proceeding.

144Counsel for the Applicant properly highlights the words of Mr. Justice Juriansz (as he then was) in R. v. MacIsaac, [2001] O.J. No. 2966 (S.C.J.):

64 Undoubtedly, the mere presence of a person in a residence named in a search warrant for illegal drugs would raise the suspicions of police. However, mere suspicion does not authorize an arrest. In my view, a person’s mere presence in a residence named in a search warrant does not provide reasonable grounds for arresting that person.

145While I have certainly not concluded that the evidence suggests that the Police did not have reasonable grounds for arresting the occupants of the residence at 377 Abbeydale Circle and that they were unlawfully detained or that the difference between a detention and an arrest in these circumstances would have warranted a remedy, it is apparent that there is a need to clarify the approach of the OPS and the members of the tactical unit when they are executing a search warrant in a residence to determine if they are detaining occupants or arresting them.

Conclusion

146Consequently, the applications pursuant to ss. 8, 9 and 10 of the Charter are dismissed.