Court File and Parties

COURT FILE NO.: CR-18-40000164-0000 DATE: 20181101 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – TAYLOR GRIFFITH

Counsel: Tracey Vogel, for the Crown Paul Aubin, for the Applicant

HEARD: October 22 – 25, 2018

A.J. O’Marra, J.

Application to Exclude Evidence

[1] Taylor Griffith is charged with being in possession of a loaded restricted or prohibited firearm and possession of crack cocaine and powder cocaine for the purpose of trafficking. He has brought an application at the outset of the trial to exclude evidence seized when he was arrested on the basis that his arrest was unlawful as the police did not have reasonable and probable grounds to arrest him, violating his s. 9 Charter of Rights and the search of his person was without warrant and unlawful, thereby infringing his s. 8 Charter of Rights.

[2] Further, he asserts that his rights to counsel were violated by a delay in advising him of those rights on arrest and subsequently by delaying contact with counsel after he had made the request to speak with counsel contrary to s. 10(b) of the Charter of Rights and Freedoms.

[3] The evidence he seeks to have excluded pursuant to s. 24(2) of the Charter is a loaded 40 calibre semi-automatic handgun seized in the course of his arrest and two packages of crack cocaine and one package of powder cocaine found in his possession during a search incidental to his arrest on October 24, 2017.

Overview of the Events

[4] On receipt of information that Mr. Griffith was selling drugs in the area of Eglinton Avenue West and Marlee Street in Toronto, members of the Major Crime Unit (MCU) 13 Division of the Toronto Police Service commenced surveillance of Mr. Griffith on October 10, 2017. Four officers, Detective Constables (D/Cs) Matthew McCartney, Sonja Mignardi, Jeremy Quinlan and Kristine Pollard followed and made observations of him for various periods of time over several days, October 10, 11, 21 and 24, 2017. The area was known to the officers as having drug trafficking problems.

[5] Over that time period he was seen to go in and out of laneways and alleys, off the main street, and look around appearing surveillance conscious. On Saturday October 21, 2017 D/C Mignardi observed him conduct hand-to-hand transactions with two males in an out of the way area of a parkette at the edge of a school yard.

[6] They learned through surveillance that he had access to an apartment at 1807 Eglinton Avenue West and a Storage Unit at 555 Trethewey Drive. After the “hand-to-hand transactions” search warrants were obtained for those locations. On October 24, Mr. Griffith was arrested just after he entered a laneway off Eglinton. He was approached by D\Cs McCartney and Mignardi to arrest him. As he was being arrested Mignardi saw a handgun in his waistband and removed it as he was being handcuffed by McCartney. On a search of a satchel in his possession they found the crack cocaine, cocaine powder and $440.00 CDN currency.

Chronology and Observations

[7] On October 10, 2017 D/Cs McCartney and Mignardi attended together to an area between Marlee Avenue and Dufferin Street along Eglinton Avenue West to locate Mr. Griffith and make observations. At 6:45 p.m. the officers saw him exit a library on Eglinton Avenue, cross over to the north side at Locksley Avenue and enter into a laneway/alley that runs parallel to Eglinton Avenue West and along the back of businesses on the north side of the street. D/C Mignardi followed on foot and observed him to move eastward along the laneway, jump a fence, enter onto another laneway and turn north at Glenholme Avenue back to Eglinton Avenue West. Then he walked westbound along the north side of Eglinton Avenue and over to the south side and continued several blocks where he entered a building at 1807 Eglinton Avenue West. The apartment building was known to the officers as a result of the landlord’s concern about drug trafficking activity therein and had provided the officers with a key to the apartment building entrance. Surveillance was discontinued that day.

[8] D/Cs McCartney and Mignardi, both with street level drug investigation experience, testified that Mr. Griffith appeared surveillance conscious as he went in and out of laneways/alleys, jumped a fence, going places off the main street where it was difficult to observe him. He appeared conscious of what was going on around him. D/C Mignardi observed him looking around and over his shoulder, in her view, to see if he was being followed. As she described it, he had “his head on a swivel”. The officers had seen similar behaviours in other drug investigations.

[9] On October 11, 2017 D/C Quinlan, attended to 1807 Eglinton Avenue West to ascertain whether Mr. Griffith could be located therein. He had knowledge of Mr. Griffith having investigated him a year earlier on a Guns and Gang matter. D/C Quinlan gained entrance to the building using the key provided by the landlord and attended to the third floor where he noted the door to Apartment 302 had no door knob, only a deadbolt. He saw Mr. Griffith exit apartment 302.

[10] On October 21, 2017 at 6:14 p.m. after a briefing about the observations of Mr. Griffith earlier the four MCU officers returned to the Eglinton Avenue West area and patrolled in plain clothes to locate, watch and follow Mr. Griffith. At 7:00 p.m., D/C Mignardi left the vehicle operated by D/C Quinlan and began on foot to look into nearby alleys and parks, areas where the officers knew drug trafficking occurred. D/C Quinlan parked on the north side of Vaughan Avenue and D/C Mignardi proceeding up Northcliffe Avenue toward Eglinton Ave. making her way to the St. Hilda parkette.

[11] D/C Mignardi notified the other officers that she could see Mr. Griffith down an incline sitting on a bench bordering a nearby school yard. He was sitting by himself speaking on his cell phone. D/C Mignardi testified that she was approximately 20 meters away looking down the incline toward the park bench.

[12] D/C Quinlan had parked on the north side of Vaughan Avenue. At the same time he received the information that Mignardi had “eyes on” Mr. Griffith, he saw two males on bicycles ride past him and into the parkette. He recognized one of the two males, named John Martin, a person he had seen almost daily pan-handling on Allen Rd. as he went to work and with whom he had dealings in 2014 at the time had been in possession of a crack pipe. He described him as an older male in his mid to late 50s, about 270 lbs. and a suspected drug user. He described both males as being dishevelled and dirty, similar in appearance to crack users in his experience.

[13] At 7:05 p.m. D/C Mignardi, still observing Mr. Griffith sitting on the bench, saw two males on bicycles ride directly to Mr. Griffith at the bench and stop. The officer observed two “hand-to-hand transactions”, as she described in her notes, between Mr. Griffith and each of the males. The encounter was very brief, taking less than 30 seconds, with limited or no conversation. After the hand-to-hand contact with Mr. Griffith, the two males rode off on their bicycles in the same direction they had come to the parkette. Mr. Griffith then left the area of the bench and walked up toward Eglinton Avenue West.

[14] Mr. Griffith, the target of the investigation was followed to a laundromat at 1686 Eglinton Avenue West where D/C Mignardi observed him place clothing items into a black plastic bag, leave the Laundromat, board a bus westbound on Eglinton Avenue West. At 7:42 p.m. he got off the bus from at Martha Eaton Way and walked to a storage facility, Storage Mart located at 555 Trethewey Drive. At 8:00 p.m. he left the locked facility without the plastic bag and boarded a number of buses, the officers eventually losing sight of him at 8:55 p.m.

[15] Subsequently, informations to obtain (ITO) and search warrants were prepared to obtain authorization to search the two addresses associated with Mr. Griffith during the surveillance, 302-1807 Eglinton Avenue West, and Storage Mart on Trethewey Drive.

[16] D/C McCartney was not available to testify on the voir dire and pursuant to s. 715 of the Criminal Code the evidence he gave at the preliminary inquiry was admitted on the voir dire. He testified that although they had reasonable grounds to arrest Mr. Griffith on October 21 when the hand-to-hand transactions were seen by D/C Mignardi, together with their earlier observations on October 10, they made a decision as a team to arrest him on October 24, at a time when they believed he would be in possession of narcotics to sell.

[17] The search warrant for 302-1807 Eglinton Avenue W. was granted in the morning, October 24, 2017. Due to an error in presenting the Storage Mart ITO the second warrant had not been obtained. After the briefing amongst the MCU officers at 11:36 a.m. D/C Mignardi, who had prepared the ITOs, attended the court to obtain the Storage Mart search warrant. It was granted at 12:25 p.m. and taken immediately thereafter to the facility in order to identify the specific locker accessed by Mr. Griffith to be searched after his arrest.

[18] In the afternoon the officers of the MCU continued to patrol the area to locate and arrest Mr. Griffith. At 12:18 p.m. Mr. Griffith was seen by D/C Pollard enter a small charcoal silver motor vehicle and to be driven westbound on Eglinton Avenue West. He was next seen at 3:16 p.m. when D/C Pollard saw Mr. Griffith leave the vehicle on Northcliffe Blvd. and walk into a laneway/alley between 686 and 688 Northcliffe Blvd. At 3:20 p.m. D/C Quinlan saw Mr. Griffith reappear from the laneway and walk northbound on Northcliffe Blvd. to Eglinton Avenue West. From there, he walked eastbound and went into a building at 1669 Eglinton Avenue West where the John Howard Society was located.

[19] A decision was made at that time to arrest him in the building. All four members of the MCU unit went into the John Howard Society Building to find and arrest him. They failed to locate him inside the building and at 3:35 p.m. left to continue looking for him outside. However, at 3:52 p.m. D/C Quinlan advised the crew that he saw him to exit the front entrance of the John Howard Society.

[20] At 3:53 p.m. D/Cs McCartney and Mignardi saw him cross Eglinton and walk into a nearby laneway between 1690 and 1692 Eglinton Avenue West where they lost sight of him momentarily. They exited their vehicle and entered the laneway to arrest him. Mr. Griffith had turned around and was walking toward them as D/Cs McCartney and Mignardi identified themselves verbally as members of the Toronto Police and displayed their badges. As Mr. Griffith turned away from them, D/C McCartney grabbed hold of him to effect the arrest and handcuff him. In the process, it caused his top to rise up and expose his waistband. D/C Mignardi saw a handgun in his waistband, pulled it out, then put it aside on the ground. At 3:55 p.m. D/C Quinlan entered the alley and assisted D/C McCartney to handcuff Griffith, who had been taken to the ground.

[21] At 3:56 p.m. D/C Mignardi seized a satchel Mr. Griffith had been carrying and searched it incidental to arrest to check for any further weapons. At that time, two packages believed to be crack cocaine and one package of powder cocaine, and $440.00 in Canadian currency, together with identification of Mr. Griffith were located. Subsequently, the substances were confirmed by testing as narcotics. D/C McCartney took possession of the firearm and in proving it safe found that one hallow point round chambered ready to fire. He ejected it and removed the magazine clip from the firearm, which contained 11 more rounds. The firearm was a semi-automatic 40 cal. S&W handgun.

[22] Mr. Griffith was turned over to uniformed police officers at 4:00 p.m. and he was placed in a patrol car.

[23] At 4:03 p.m. as recorded on the In-Car Camera, D/C Quinlan advised Mr. Griffith was under arrest for possession for the purpose of trafficking and possession of a loaded firearm. He was given his rights to counsel. When asked if he wished to speak with a lawyer he responded “Yes, Ted Royal”. He was cautioned and he indicated that he did not wish to say anything in answer to the charges. At 4:05 p.m. he was transported to 13 Division for booking. At 4:25 p.m. in the booking room at 13 Division he was reminded of the reasons for his arrest and his right to counsel. He reiterated that his lawyer was Ted Royal. The booking sergeant told him the police would attempt to contact his lawyer.

[24] During the time Mr. Griffith was being processed at 13 Division, the four MCU officers went to execute the two search warrants, 302-1807 Eglinton Avenue West and the Storage Mart storage unit leased to Mr. Griffith. Nothing of evidential value was located in either searches.

[25] A decision was made to temporarily suspend the implementation of Mr. Griffith’s access to counsel until the search warrants were completed out of safety concerns for the police and the public and/or to prevent possible destruction of evidence, as testified to by D/C Quinlan, Mignardi and Pollard.

[26] The search warrants were executed by 6:20 p.m. and on return to the Division D/C Mignardi placed a phone call to Mr. Royal’s office at 7:40 p.m., answered by an on-call lawyer for the office who spoke with Mr. Griffith.

[27] Later that evening Detective Constable Mignardi facilitated a call for Mr. Griffith to speak with his sister at 11:02 p.m.

Reasonable Grounds to Arrest and Search Incidental to Arrest

[28] The applicant contends that he was unlawfully arrested and searched because the police lacked any objectively reasonable grounds to arrest and search him based on an alleged hand-to-hand transaction in which no money or drugs were observed. The officer’s subjective belief that a drug transaction occurred was at best speculative and not objectively verifiable.

[29] The standard for an arrest is set out in s. 495 of the Criminal Code of Canada as “reasonable grounds to believe”. Section 495(1) states:

A police officer may arrest without warrant: (a) a person who has committed an indictable offence for who, on reasonable grounds, he believes has committed or is about to commit an indictable offence . . .

[30] In R. v. Storrey, [1990] SCJ No. 12 at para. 17 the Supreme Court in considering the requirements of reasonable grounds stated:

In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.

[31] In R. v. Amare, 2014 ONSC 4119 C. Hill J. provides a useful list of considerations in the assessment as to whether the police have objectively verifiable grounds to arrest a person, several of which are apposite in this instance:

• the police must not only have reasonable grounds in the subjective sense of a personal, honestly held belief, but also the asserted grounds must be justified upon an objective measure of a reasonable person standing in the shoes of the officer: R. v. McKenzie, 2013 SCC 50, [2013] 3 SCR 250 at paras. 62-3 83: R. v. Storrey supra at pp. 250-1.
• The “reasonable grounds to believe” standard consists of “compelling and credible information that provides an objective basis”, objectively discernable facts, for drawing inferences as to the existence of factual circumstances: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 SCR 100 at para 117.
• The fact “that an experienced constable has a honest subjective belief, while not conclusive, is itself some evidence that the belief is objectively reasonable”: R. v. Biccum, 2012 ABCA 80, at para. 21; see also R. v. Luong, 2010 BCCA 158 at para. 19; R. v. Chehil, 2013 SCC 49, [2013] 3 SCR 220, at para. 47.
• Reasonable probable grounds does not involve a mathematical assessment of facts and circumstances but rather a common sense, a non-technical approach – it is necessarily a qualitative standard upon which reasonable people can differ in some cases: R. v. Campbell (2010), 2011 SCC 32, 261 CCC 3rd 1 (OCA) at paras. 52-4 (aff’d) [2011] 2 SCR 549: Chehil, at paras. 29, 62-9: McKenzie, at para. 71: R. v. Ward, 2012 ONCA 660 at para. 116.
• The standard of reasonable probability applied to the totality of the circumstances considering the relevant facts cumulatively, where credibility based probability replaces suspicion and possibility, does not demand the police officers “always be correct, but that they always be reasonable”, United States v. Clutter, 674 F. 3d 980, 983 (8th Cir. 2012).
• A court reviewing the existence of reasonable grounds concerns itself “only with the circumstances known to the officers”: R. v. Wong, 2011 BCCA 13 at para. 19 (leave to appeal denied [2011] SCCA No. 90).

[32] In R. v. Lawes, 2007 ONCA 10 at para. 4 the Court of Appeal stated:

There is a lawful arrest when a police officer subjectively believes that there are grounds to do so, and those grounds are objectively reasonable. The totality of the circumstances relied upon by the arresting officer will form the basis for the objective assessment. It would constitute an error in law to assess each fact or observation in isolation. An objective assessment will include the dynamics within which the police officer acted, and his or her experience.

[33] D/C Mignardi had been involved in a number of drug surveillance investigations having witnessed about 50 hand-to-hand transactions. The reasonable probable grounds to arrest Mr. Griffith were set out in the evidence of D/C Mignardi, based on her cumulative observations of Mr. Griffith’s movements, behaviour and hand-to-hand transactions. On October 10, 2017 she saw Mr. Griffith take a circuitous route into and through laneways and over fences, while appearing to the officer as being surveillance conscious by him looking around, as she testified, with “his head on a swivel”. His behaviour was consistent with the experience of the officer, as well as D/C McCartney’s that drug transactions take place in out-of-the-way areas, such as laneways/alleys and parks, out of sight of others.

[34] Then on Saturday, October 21, 2017 at 7:00 p.m. D/C Mignardi, communicating her observations by cell phone to D/C McCartney, who in turn transmitted her call on speaker phone via radio to the other officers, found Mr. Griffith sitting on a bench by himself in an out-of-the-way area adjacent to a school yard, where a few minutes later two individuals, dirty and dishevelled suspected drug users, rode on bicycles directly to him. In a brief encounter, she saw the hand-to-hand transactions between both males and Mr. Griffith. She testified that the males, as well as Mr. Griffith were looking around with their heads on a swivel.

[35] She described the hand-to-hand exchanges as not being classic handshakes or fist bumps, but rather an extension of their arms with clenched fists as if holding something and then swiping or sliding their palms together, in her belief based on her experience, exchanging money for drugs. The encounter was brief and after the hand-to-hand transactions, the two males rode their bikes back in the same direction they had come. She maintained observation on Mr. Griffith as he left the parkette, and with the other officers followed him to Eglinton Avenue West and thereafter to the laundromat, and the Storage Mart, until they lost sight of the bus he was on, disengaging surveillance at 8:55 p.m.

[36] Counsel for Mr. Griffith submits that the grounds for arrest in this instance are deficient in that there is no compelling reliable evidence that a hand-to-hand drug transactions occurred because of deficiencies, as he characterizes them, in D/C Mignardi’s notes, which do not contain the details of the mechanism of the hand-to-hand transactions and her observations testified to at the preliminary inquiry and on the voir dire. He submits that the notation, “observed hand-to-hand transaction with both males and target” is not credible or reliable because she testified to observations in describing the hand-to-hand transactions in greater detail not contained in her notations.

[37] D/C Mignardi’s specific notations for what she observed on October 21 at the parkette are as follows:

• 19:00 go on foot – observe target in the parkette – south of Vaughan Road – target is sitting on bench solo – on the phone
• 19:05 observed two known males approach target at the bench
• 19:06 observed hand-to-hand transaction with both males and target – very limited conversation between parties – quick exchanging of objects – hand-to-hand drug transaction – the entire transaction between males and target were less than one minute
• 19:07 both males back on their bikes – at a way from target – target back on foot northbound on Northcliffe Blvd.

[38] Counsel contends that because D/C Mignardi supplemented these written observations in as she testified she is not only unreliable, but misleading as to the grounds for arrest because:

1. In her notes she indicates Mr. Griffith sitting on the bench when she saw him. In evidence at the preliminary she indicated that she saw him walking to the bench. On the voir dire she was uncertain if she saw him walk to the bench or saw him sitting when she first saw him.
2. In evidence on the voir dire she indicated that the two males had reached into their pockets not in her notes and they looked around during the encounter with Mr. Griffith.
3. She described the hand-to-hand exchange as involving “clenched fists” as if holding something and then a swiping motion across their palms.
4. In her notes she refers to two known males arriving and in evidence she indicated that one of them was known to her as a suspected drug user because in an investigation she entered a residence where there were a number of males present, including the person she saw meet the accused, and drugs were in the open. She was uncertain as to whether that was information known to her at the time or after. While she described them general as dirty and dishevelled as did Quinlan she said they were about 5’7” or 5’8” about 160-170 whereas Quinlan described the man he knew as tall about 270 lbs.
5. With respect to her observations on October 10, 2011 and October 21, she made reference to Mr. Griffith’s head on a swivel as he looked around, as were the two males at the time she observed them meet Mr. Griffith.
6. In her notes she referred to their being very limited conversation and in the evidence that there is no conversation as she was about 20 meters away and not close enough to hear.

[39] In effect counsel’s submission is that because of the additional details provided by D/C Mignardi with respect to the hand-to-hand transactions the court should not accept that she observed “hand-to-hand” transactions. All of the details should have been included in the notes, failing which her notes and evidence are unreliable.

[40] The logical extension of counsel’s argument is that the officer’s testimony would amount to just reading her notes, without elaboration for it to be considered reliable and credible.

[41] Given that the officer’s notes are made as an aide memoire to stimulate a visual memory of the observed event I find no merit in the submission. Notes are not akin to a video recording of the officer’s observations. The detail provided by D/C Mignardi developed as a result of questions asked of her. She was specifically asked to describe the “hand-to-hand transactions”. The officer offered to demonstrate what she had observed. Both by actions displayed in her demonstration with the prosecutor and the words she used to describe those actions, each male held out a clenched fist and swiped their palms so as to exchange something unseen in their hands.

[42] The fact that the officer did not make detailed observations about height and weight of the two males in my view in of no moment. I accept that her concentration was on the accused and to follow him.

[43] One of the other aspects of Mignardi’s evidence which counsel contends indicated that her evidence was unreliable was that the notation with respect to the arrest of Mr. Griffith was that it was made “without incident”. In evidence at the preliminary inquiry she referred to their having been a struggle as Mr. Griffith resisted. I find no merit in the suggestion in this instance. The evidence is consistent as between D/Cs Mignardi and McCartney. In his notes, McCartney writes that Mr. Griffith was taken to the ground for safety and placed under arrest and in D/C Mignardi’s evidence she states McCartney took a hold of Mr. Griffith as he turned away from them and took him to the ground both writing, the arrest was without incident, which I take to mean no one was hurt. In any event, the manner of arrest in no way bears upon the officers’ reasonable and probable grounds, formed by their observations prior to arrest.

[44] Mr. Aubin relies on R. v. Brown 2012 ONCA 225 as a situation similar to the instant case where the Court of Appeal concluded that notwithstanding the officer’s honest belief that the accused was in possession of drugs and attempted hand-to-hand transaction providing him with reasonable and probable grounds to arrest, the totality of the circumstances did not provide a basis upon which the belief could be said to have been objectively reasonable.

[45] The facts, however, were quite different from the case at bar. The arresting officer, on general patrol in a cruiser with another officer, observed the accused for the first time standing on the side of the street with his back to the cruiser “fully extend his right arm with a closed fist toward to a second person”. The officer could not tell whether the person was male or female. The second person was facing in the direction of the police car and did not have his or her hand toward the accused or reciprocate in any way to the gesture made by the accused as seen by the officer. The second person turn around abruptly and walk away at a fast pace. The officer then saw the accused walk across the street with his closed right hand by his side. The officer believed that the accused was concealing drugs in his hand and that a drug transaction was going on, based in part on his “experience on seeing hand-to-hand transactions in the past and arresting people based on that” observation. It was of some significance that the other officer who was in the passenger seat and in a better position to see the conduct did not see anything that was suspicious.

[46] In Brown at para. 14 the court stated:

In our view, however, there must be something in the conduct observed by the officer, placed in the context of the rest of the circumstances that lend some objective justification or verification to the officer’s belief.

[47] In the case at bar, unlike Brown, there had been prior observations of Mr. Griffith acting in a furtive manner, going in and out of laneways/alleys, looking about him displaying, in the officers’ view him being surveillance conscious. He was observed in an out-of-the-way area in the parkette, where he met with two individuals who rode directly up to him. During the brief encounter, the officer saw two hand-to-hand transactions. They were all looking around. The two males reached into their pockets and then extended their arms with clenched fists separately, as did the accused and swiped palms. They were not handshakes or fist pumps as would occur in a greeting.

[48] In the circumstances, the encounter had the appearance of a rendezvous because right after the hand-to-hand transactions the two males rode away in the same direction they had come and Mr. Griffith walked off in the other direction.

[49] In R. v. Johnson, [2006] OJ No. 2182 the Court of Appeal found that police observations of a hand-to-hand transaction, the location of the transaction and the known drug use of the recipient provided objectively reasonable grounds to arrest the suspected drug dealer. Further, there was no observation as to what was said or seen transferred during the hand-to-hand transaction.

[50] In R. v. McKenzie 2013 SCC 50 it was noted that in assessing whether there were objectively reasonable ground, common sense, flexibility and practical everyday experience must be applied through the lens of a reasonable person armed with the knowledge, training and experience of the arresting officers.

[51] A person “standing in the shoes of D/C Mignardi”, with the same experience in investigating drug cases and seeing hand-to-hand drug transactions, with knowledge of the prior observations of Mr. Griffith’s behaviour and the encounter in the parkette with the two males as she described, would in all the circumstances reasonably believe a drug transaction had occurred.

[52] It is the constellation of Mignardi and McCartney’s observations, common knowledge, training and experience that made it reasonable for them to believe they had reasonable probable grounds to arrest the accused on October 24, 2017. In this instance the totality in the circumstances relied on by Mignardi and McCartney provided sufficient basis to conclude that their belief they had reasonable and probable grounds to arrest the accused was objectively reasonable.

Rights to Counsel

[53] The applicant submits that he was not advised promptly as to the reasons for his arrest or provided his right to counsel immediately upon arrest, contrary to s. 10 of the Charter. Furthermore, he was not cautioned and advised of his right to silence upon arrest contrary to s. 7 of the Charter.

[54] Mr. Griffith was provided with the reasons for his arrest, advised of his rights to counsel and cautioned, within minutes of what the officers described as a “dynamic arrest” at approximately 3:56 p.m. involving taking him to the ground and handcuffing him, during which a loaded semi-automatic handgun with hallow point 40 calibre rounds was pulled from his waistband.

[55] Subsequently, given the presence of a loaded firearm carried by the accused, there was an appropriate search incidental to arrest in the interest of officer safety to determine whether he was in possession of other weapons. At 4:00 p.m. within a few minutes of his arrest, uniformed officers took control of the accused. Within three minutes, at 4:03 p.m., D/C Quinlan provided him with the reasons for his arrest, rights to counsel and cautions, out of the laneway, while safely contained in the police car.

[56] In R. v. Suberu, 2009 SCC 33 at para. 2 the Supreme Court observed that under s. 10 (b) of the Charter the moment an individual is detained the police have an obligation to inform the detainee of his or her right to counsel “without delay”, however, the “immediacy” of the obligation is only subject to concerns for officer or public safety, or to reasonable limitations prescribed by law.

[57] In R. v. Grant, 2015 ONSC 1646 at para. 106 K. Campbell J. noted that police officers cannot be expected to advise detained and arrested persons about their constitutional rights at a time when they reasonably believe that to do so could place their safety, or the safety of members of the public including the accused, at risk or at stake.

[58] The reasons for arrest and rights to counsel were provided promptly/immediately in the context of the dynamic circumstances surrounding the arrest in a manner that ensured public and police safety. The delay was both fleeting and reasonable.

Delay in Access to Counsel: s. 24(2) Analysis

[59] There was however, a breach of the accused’s right to contact counsel pursuant to s. 10(b) of the Charter when access to counsel was delayed until after the execution of the search warrants issued before his arrest. He was arrested at approximately 3:56 p.m. When he was advised of his rights to counsel at 4:03 p.m. he said he wanted to speak with his lawyer. It was not until 7:40 p.m. that he had telephone contact with a lawyer.

[60] I have concluded that the arrest of Mr. Griffith was lawful as was the warrantless search incidental to arrest. There were objectively reasonable ground to arrest and search in the circumstances. However, the delay by the police in implementing Mr. Griffith’s request to speak with counsel violated his s. 10(b) Charter of Rights to access counsel.

[61] Accordingly, I must consider the three-prong analysis of s. 24(2) of the Charter as set out in R. v. Grant, 2009 SCC 32, as to whether the admission of evidence would bring the administration of justice into disrepute – specifically, the seriousness of the Charter-infringing police conduct, the impact of the breach on the Charter protected interests of the accused, and society’s interest in an adjudication of the case on its merits.

[62] Both counsel have referred me to the recent Court of Appeal decision in R. v. Rover, 2018 ONCA 745, which bears some similarity to the instant case, and addresses the s. 24(2) Charter analysis in the context of the police delaying the accused’s access to counsel following his arrest and request to speak with counsel, until after the police obtained and executed a search warrant.

[63] In Rover, the police received a tip about a person dealing drugs from a residence. The accused, seen at the residence, matched the description given to the police in the tip. During the surveillance of the residence the police saw what they characterized as a pattern of traffic coming and going, which they believed confirmed the tip that drugs were being sold there by the accused. Two women, after leaving the residence, were arrested and admitted to purchasing cocaine, which was found in their vehicle.

[64] The police decided that they had reasonable probable grounds to arrest the accused, and then obtain a search warrant to search the residence. At the time of his arrest, he was advised of his right to counsel and he immediately said that he wished to speak to his lawyer. Contact was delayed several hours while the police applied to obtain and then execute the search warrant. During the search drugs were seized, the evidence that formed the basis of the various drug charges for which he was being tried.

[65] The Court of Appeal in Rover at paras. 26-27 noted that s. 10 (b) jurisprudence has always recognized that specific circumstances have been found to justify delaying an accused’s contact with counsel, which often related to police and public safety or the preservation of evidence. However, concerns of general or of a non-specific nature applicable to virtually every search cannot justify delaying access, as was the case at bar. “The police may delay access only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that the police or public safety or the need to preserve evidence, justifies some delay in access to counsel.” Even then, reasonable steps must be taken by the police to minimize the delay.

[66] In Rover at para. 33 Doherty J.A. stated:

In my view, to fall within the exception to the requirement that an arrested person be allowed to speak to counsel without delay, the police must actually turn their mind to the specific circumstances of the case, and they must have reasonable grounds to justify the delay. The justification may be premised on the risk of the destruction of evidence, public safety, police safety, or some other urgent or dangerous circumstance.

[67] The evidence in that case was that the police delayed the accused’s access to counsel as a result of following a routine practice where they intended to obtain a search warrant to search for evidence, drugs in that case, and they believed the location of the search was connected to the accused. It was as stated in evidence a “standard” or “customary” practice. No written policy to that effect was produced at trial.

[68] The trial judge in the s. 24(2) analysis found that the delay in allowing the accused access to counsel was serious. However, noting that the police did not question the accused and there is no causal connection between the breach and the evidence obtained during the search, he concluded that the impact on the accused’s Charter protected interests was moderate. With respect to the third factor, the evidence being real, reliable and crucial to the case, society’s interest in the adjudication of the matter on its merits were found to have “tipped the balance in favour of admissibility”.

[69] The Court of Appeal in its section 24(2) analysis concluded that the Charter infringing state conduct had to be viewed as very serious and would bring the administration of justice into disrepute, where the police practice “routinely holds detained individuals incommunicado while the police go about obtaining and executing a search warrant” without justification.

[70] Further, with respect to the impact on the accused Charter protected interest the breach rather than being moderate was considered significant, notwithstanding there being no causal connection between the breach and the evidence obtained.

[71] The seriousness of the police conduct and the impact of the breach on the Charter protected interests of the accused outweighed society’s interest in the adjudication of the case on the merits. To protect the long term interests of the justice system the evidence must be excluded.

[72] In this case, there was evidence that the delay in providing access to counsel was done in consideration of police/public safety and the preservation of evidence. D/C Quinlan testified that it was not in every case that the delay occurred, rather in this case there were heightened concerns regarding police safety given the arrest involved an accused who possessed a loaded firearm, and they did not know if the apartment they were to search, where they suspected drugs to be present, was occupied by others. Further, there was a concern about the possible destruction of evidence.

[73] In considering the police conduct, delaying access to counsel and failing to inform him as to why the delay occurred, while I am satisfied not done in bad faith, it must be serious misconduct, which in the analysis favours exclusion.

[74] In considering the impact of delaying his access to counsel, in this instance, I find that it had minimal negative impact. I take into account that the loaded firearm seizure was concurrent with his lawful detention and arrest, and that the drugs were found in his satchel immediately thereafter during a lawful search incidental to his arrest. In this case, there is no causal or indeed temporal connection between the s. 10 (b) breach and the evidence obtained – factors which mitigate the impact of the breach on his Charter protected interests: see R. v. Grant supra at para. 122.

[75] In determining whether the admission of evidence would bring administration of justice into disrepute, the third line of inquiry relates to society’s interest in having the case determined on its merits. The evidence in this case, the loaded firearm and seized drugs are reliable and crucial to the prosecution of what are considered very serious crimes. Lethal firearms and illegal drugs have been repeatedly referred to by the courts as a societal scourge that cause serious harm and death to others in the community. A loaded firearm and illicit drugs as a real evidence favour admission.

[76] In weighing and balancing the seriousness of the breach, the minimal negative impact on the accused’s Charter protected interests in that the loaded firearm and illicit drugs were seized at the time of his arrest and prior to the breach, together with society’s interest in an adjudication of serious matter on the merits, the admission of the loaded firearm and the illicit drugs into evidence in the circumstances would not bring the administration of justice into disrepute.

[77] The application to exclude evidence is dismissed.

A.J. O’Marra, J. Released: November 1, 2018