BARROE COURT FILE NO.: CR-18-107 DATE: 20190403 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – ALCESTE PILEGGI Applicant
Counsel: Phillip J. Brissette, for the Respondent Louie R. Genova, for the Applicant
HEARD: March 25 and 26, 2019
RULING RE BREACH OF CHARTER RIGHTS
SUMMARY
1On May 3, 2017, police executed a telewarrant pursuant to the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”), at 83 Warman Street in the Town of New Tecumseth. This is the residence of the Applicant, Alceste Pileggi, the target person named in the search warrant. Following the search of the residence, both Mr. Pileggi and his wife were charged with various offences. The charges against Mrs. Pileggi were ultimately stayed.
2Mr. Pileggi faces two charges in this trial: possession of cocaine for the purposes of trafficking pursuant to s. 5(2) of the CDSA; and possession of property obtained by the commission of an offence pursuant to s. 354(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (“Criminal Code”).
3Mr. Pileggi submits that there were serious breaches of his s. 8, 9, 10(a) and 10(b) Charter rights, all of which had a significant impact on him. Accordingly, Mr. Pileggi seeks to exclude, not only all of the evidence obtained during the search of 83 Warman Street, but also any evidence obtained during his detention and questioning, pursuant to s. 24(2) of the Charter.
4For the reasons that follow, I find that Mr. Pileggi’s Charter rights were not infringed.
5I note that no viva voce evidence was proffered, and all references herein to testimony reference testimony provided at the preliminary enquiry.
CHARTER BREACHES
6The nature of the Charter breaches alleged by Mr. Pileggi are as follows:
i) That his section 8 right against unreasonable search and seizure was violated by the police when they, a. failed to comply with the requirement of impracticability to obtain a telewarrant pursuant to s. 487.1 of the Criminal Code; and b. departed from the common “knock and announce” standard, and the requirements under s. 12(b) of the CDSA and section 25 of the Criminal Code to use only as much force as is necessary;
ii) That his section 9 right against arbitrary detention was violated when he was handcuffed, un-cuffed and then re-cuffed, without the attending officers ever re-assessing the initial decision to handcuff him;
iii) That his section 10(a) right to be promptly informed of the reasons for his arrest was violated by the police when they withheld the true nature of the jeopardy he faced for an extended period of time;
iv) That his section 10(b) right to retain and instruct counsel without delay and to be informed of that right was violated when, a. he was not immediately informed of his right to counsel; and b. his right to retain counsel was consistently delayed without reasonable justification, he was questioned without access to counsel, and he was never given access to counsel of his choice.
7I will address each alleged breach in the order set out above.
Section 8: “Everyone has the right to be secure against unreasonable search or seizure.”
8Under this alleged Charter breach, Mr. Pileggi submits it was unreasonable to use the telewarrant procedure.
9At 12:33 a.m., the morning of May 3, 2017, Detective Constable James Hargreaves requested and thereafter obtained a telewarrant to search 83 Warman Street, New Tecumseth, pursuant to section 487.1 of the Criminal Code.
10The telewarrant application was supported by three confidential sources who informed police that Mr. Pileggi was a drug dealer, that he sold drugs from his home at 83 Warman Street, and that they had attended at 83 Warman Street to buy oxycodone from him.
11In addition, an anonymous source through Crimestoppers advised that drugs were being trafficked from 83 Warman Street, and that they had seen ‘exchanges’ take place between Mr. Pileggi and the driver of a black pickup truck.
12There was no evidence that Mr. Pileggi had any criminal associations, or that there were weapons in the home.
13Pursuant to s 487.1 of the Criminal Code:
If a peace officer believes that an indictable offence has been committed and that it would be impracticable to appear personally before a justice to make an application for a warrant in accordance with section 487, the peace officer may submit an information on oath by telephone or other means of telecommunication to a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter.
14The requirements for an information to obtain (ITO) are set out in s. 487.4 of the Criminal Code:
(4) An information submitted by telephone or other means of telecommunication shall include
(a) a statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice;
(b) a statement of the indictable offence alleged, the place or premises to be searched and the items alleged to be liable to seizure;
(c) a statement of the peace officer’s grounds for believing that items liable to seizure in respect of the offence alleged will be found in the place or premises to be searched; and
(d) a statement as to any prior application for a warrant under this section or any other search warrant, in respect of the same matter, of which the peace officer has knowledge.
15In the ITO, D. C. Hargreaves advised that it was impracticable to wait and appear personally before a Justice of the Peace as that office would not be open until the morning, and by waiting until then, some of the items, which were consumable, might be trafficked away. Any delay would result in a limited amount of evidence, which could adversely affect the prosecution.
16The warrant was issued at 1:35 a.m. on May 3, 2017, and was operative between the hours of 2:00 a.m. and 8:59 p.m.
17PC Sharp, who assisted with the execution of the warrant, testified at the preliminary inquiry that the street crime unit carried out two drug warrants that day. The first one, in the morning, was unrelated to Mr. Pileggi; and the second, at Mr. Pileggi’s home, was after lunch.
18The search uncovered approximately 1 kilogram of cocaine, 90 oxycodone pills, 246 grams of marijuana, 1350 unknown pills, a pill press, three 5 kg buckets of white powder, three digital scales, and a black safe containing $3,695 CDN.
19At the preliminary inquiry, DC Hargreaves testified that he submitted the ITO when the court was closed, and it was therefore impracticable for him to make an in-person application. Further, he was to be in court in Collingwood on May 3, 2017, at 9:30 a.m., and it would have been impracticable to make an in-person application at 9:00 a.m. at the courthouse in Barrie, and then be in Collingwood by 9:30 a.m.
20Mr. Pileggi relies on R. v. Lao, 2013 ONCA 285, 277 C.R.R. (2d) 362, in support of his submission that it is a violation of s. 8 of the Charter to resort to a telewarrant for the sole purpose of convenience (at para. 65):
It will be recalled that s. 487.1 of the Criminal Code permits an application for a search warrant to be made by telecommunication where it would be “impracticable” to attend personally. The trial judge found that while it would have been inconvenient for DC Wallace to attend in person to apply for the warrant, it was not impracticable. Having found that the standard of impracticability had not been met, use of the telewarrant procedure was in breach of s. 8 of the Charter.
21The efforts that go into keeping our communities free from drugs do not fit nicely within a typical 9:00 to 5:00 work day. I find that R. v. Clark, 2015 BCCA 488, 380 B.C.A.C. 15, aff’d 2017 SCC 3, is instructive when examining the procedure of obtaining a telewarrant, and the realities of conducting this work (at para. 66):
The telewarrant procedure was designed to make it possible for law enforcement officers to apply for a search warrant 24 hours a day, seven days a week. Whether the application is made in-person or by fax the reasonable-grounds standard must be met before a warrant can be issued. The impracticability-requirement is concerned with whether it is impracticable to make an in-person application at the time the application is brought; it does not require that an immediate need for a warrant be demonstrated.
22Para. 66 goes on to quote from Justice Levine in R. v. Le, 2009 BCCA 14, 268 B.C.A.C. 58:
The appellant suggests that there was no urgency to carry out the search. Constable Lane should have waited until the next day when she could have appeared in person to obtain the warrant, or she should have asked another officer, who was working during the day, to obtain the warrant. In my opinion, the telewarrant procedure is available so that police officers who work on shifts or in communities where justices of the peace are not available at all hours may carry out their duties, and it is not for the court to interfere in the management of police investigations by requiring them to organize themselves to avoid using the telewarrant procedures in the Code or risk being found in violation of those provisions. [Emphasis in original.]
23DC Hargreaves did not avail himself of the telecommunication method of submitting an ITO because it was more convenient for him than attending in person. The courthouse was closed by the time he completed his application at 12:30 a.m. on May 3, 2017. He had to be in Collingwood for court at 9:30 a.m. that same morning, and it would be impossible for him to be in both places at once.
24The threat to preservation of the evidence was not, as submitted by Mr. Pileggi, supplanted by the desire for lunch. The warrant was valid until 8:59 p.m. that evening. This was a product-driven CDSA search, and DC Hargreaves felt it was prudent to submit the telewarrant for potential early morning entry in order not the lose evidence of the offence. DC Hargreaves was not present for the execution of the search (as he was in Collingwood), so was unaware of the exact time it would be implemented.
25This is not a situation like that in Lao, where the ITO was sent to the telewarrant centre at 8:15 a.m., and authorized at 9:15 a.m. There, the trial judge concluded that while it might have been inconvenient for the officer to attend in person, it was not impractical.
26I find it was impracticable for DC Hargreaves to make an in-person application with respect to the ITO. As such, there is no violation of Mr. Pileggi’s s. 8 Charter right to be free from unreasonable search and seizure, or of s. 487.1(4) of the Criminal Code.
Section 8: “Everyone has the right to be secure against unreasonable search or seizure.”
27To comply with s. 8 of the Charter, a search must be reasonable: “A search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the manner in which the search was carried out was reasonable.” R. v. Collins, [1987] 1 S.C.R. 265, at para. 23.
28The CDSA limits the use of force in section 12(b):
- For the purpose of exercising any of the powers described in section 11, a peace officer may (a) enlist such assistance as the officer deems necessary; and (b) use as much force as is necessary in the circumstances.
29Pursuant to s. 25 of the Code:
25(1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law (a) as a private person, (b) as a peace officer or public officer; or (c) in aid of a peace officer or public officer, or (d) by virtue of his office, is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as necessary for that purpose.
30Sergeant Buligan was the supervising member of the search warrant conducted at 83 Warman Street. Sgt. Buligan testified that members of the Emergency Response Team (“ERT”) assisted with the search because DC Hargreaves was unavailable, and because there were some new members of the street crime unit who had not been trained in warrant execution.
31At 1:06 p.m. on May 3, 2017, Sgt. Buligan conducted a briefing for the team members, numbering ten in total, who would be conducting the search. This took place at the detachment. During this briefing the manner of entry was discussed. The plan was to enter by surprise, although the ultimate manner of entry was not determined at that time.
32PC Sharp, ERT member, was assigned to the battering ram. He testified at the preliminary inquiry that before using the ram, the lead officer would first check the front door to see whether it was unlocked or locked. If it was unlocked, then they would open the door, enter and announce; if it was locked, then a signal would be given to use the ram.
33The warrant was executed at 1:43 p.m. PC Sharp was given the signal to breach the door with the battering ram, which he did. Officers entered, some with guns drawn, announcing “police, search warrant.” There is confusion, however, as to who the lead officer was.
34Both PC Sharp and PC Black, also an ERT team member, testified that Sgt. Buligan was the lead officer. However, Sgt. Buligan testified that he was toward the end of the group of officers on the porch, and thus was not the lead officer tasked with checking the front door.
35PC Sharp’s testimony is unequivocal, however, that he would not have used the ram without being given the signal to do so.
36Mr. Pileggi submits that using the ram to batter down his door, and officers entering with guns drawn, was an unnecessary use of force.
37One motivating factor to depart from the standard “knock and announce” entrance was to ensure evidence was not destroyed. Here, police were searching for oxycodone pills, which could be easily flushed down a toilet depending on the quantity within the home.
38DC Hargreaves testified that, in search warrants involving pills, to the best of his recollection, all had been forced entry. Sgt. Buligan testified that in virtually every drug case there is a risk that evidence will be flushed down the toilet.
39This is not an idle observation. Drugs are notoriously easy to dispose of expediently. As explained by Fontana and Keeshan, The Law of Search and Seizure in Canada (10th ed.) (Markham: LexisNexis, 2017) Ch. 6 (3)(c), “Unlike most other property or evidence, drugs can be disposed of quickly and easily in a toilet in the short span of time between announcement and entry by the police.”
40Sgt. Buligan took into account the size of 83 Warman Street. In his past experience, homes of that size had two washrooms, upstairs and downstairs, and these were the types of homes where suspects had flushed drugs down the toilet during the execution of a warrant. Sgt Buligan had no idea where Mr. Pileggi might be in the home but believed that wherever he was located, he would have quick and ready access to a washroom in which to dispose of the pills, if entry were to be announced.
41Another motivating factor for departing from the “knock and announce” standard, is the safety of the officers conducting the search. PC Sharp testified that while there was no information regarding weapons in the home, that did not necessary mean that weapons would not be there.
42PC Black testified that on numerous occasions weapons have been located at search warrants despite not having information about them. Further, in his experience, when executing drug warrants, weapons will be found in the residence.
43Cromwell J., in R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, set out the steps that are required when deviating from “knock and announce”, at para. 20:
Where the police depart from this approach, there is an onus on them to explain why they thought it necessary to do so. If challenged, the Crown must lay an evidentiary framework to support the conclusion that the police had reasonable grounds to be concerned about the possibility of harm to themselves or occupants, or about the destruction of evidence. The greater the departure from the principles of announced entry, the heavier the onus on the police to justify their approach. The evidence to justify such behaviour must be apparent in the record and available to the police at the time they acted. The Crown cannot rely on ex post facto justifications…
44The Supreme Court went on to say that s. 8 of the Charter does not require the police to put their lives or safety on the line if there is even a low risk of weapons being present (at para. 20).
45When assessing the decisions made by police who have used a forced entry, a trial judge should look at what was or should reasonably have been known to the police at the time: see Cornell, at para. 24:
These sorts of after-the-fact assessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances.
46The Supreme Court further held:
The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback.
47In Cornell, the police tactical team carrying out the search used a hard entry to avoid destruction of evidence and to protect the safety of the police and the public. At para. 31, the court speaks about the nature of the entry:
The appellant objects to the use of masks by the police. My view, however, is that the question for the reviewing judge is not whether every detail of the search, viewed in isolation, was appropriate. The question for the judge, and the question the judge in this case answered, is whether the search overall, in light of the facts reasonably known to the police, was reasonable. Having determined that a hard entry was justified, I do not think that the court should attempt to micromanage the police’s choice of equipment. I should add that R. v. Lau, 2003 BCCA 337, 175 C.C.C. (3d) 273, and R. v. Schedel, 2003 BCCA 364, 175 C.C.C. (3d) 193, are of no assistance to the appellant. In neither case was there any mention of the police wearing balaclavas. Both cases concerned police reliance on a blanket policy (one that did not involve balaclavas), of which there was evidence in those cases, always to use a hard entry for the search of suspected marijuana grow operations even in the complete absence of evidence of risk of violence or destruction of evidence. There is no such “blanket policy” in evidence here and the record shows that there were ample grounds for the police to be concerned about violence and destruction of evidence in this case…
48This is a far cry from the scene at 83 Warman Street. The officers were not wearing balaclavas. There was no gratuitous force – only the front door and its frame were damaged. It was not readily apparent to the police that Mr. Pileggi and his wife would be found in their bedroom, Mrs. Pileggi with a coffee in her hand.
49Mr. Pileggi submits that the forced entry approach was indicative of a blanket policy which violates the requirements set out in the Criminal Code, the CDSA, and the common law, for a reasonable search and seizure.
50In support, Mr. Pileggi relies on Lau. Mr. Lau’s home supported a two-stage marijuana production operation, with over 250 marijuana plants. Police decided to use a battering ram to enter the premises, based on a policy that required surprise entry with every marijuana grow operation. The B.C. Court of Appeal, at para. 92, found this was excessive, particularly where there was no concern that the evidence could be destroyed:
But good motives do not permit the force to formulate policies which are contrary to legislative requirements. The difficulty in this case is that s. 12 of the Controlled Drugs and Substances Act does not permit the formulation of a blanket policy for searches under s. 11 of the Act. By s. 12 Parliament has required that the use of force be as is necessary in the circumstances. Therefore each case must be considered independently.
51In R. v. Rutledge, 2017 ONCA 635, 387 C.R.R. (2d) 78, the court considered the use of tear gas during the execution of a warrant. In upholding the trial judge’s decision that the use of tear gas was reasonable in the circumstances, the court stated, at paras. 25 and 26:
In reaching our conclusion, we have in mind that police decisions about the manner in which a search will be carried out fall to the adjudged by what was or should reasonably have been known to them at the time the search was conducted, not through the lens of how things turned out to be. Hindsight is not our measuring stick.
We also recognize that police are entitled to some latitude on how they decide to enter premises under a warrant. Omniscience is not a prerequisite for a search to be conducted in a reasonable manner. In an assessment of the manner in which a search has been executed, a reviewing court balances the rights of suspects, on the one hand, with the requirements of safe and effective law enforcement, on the other. The trial judge did this. This is no place for the Monday morning quarterback.
52I do not find, on the evidence before me, that there existed a blanket policy to conduct forced entries.
53Therefore, the question this court must answer is whether the search overall, in light of the facts reasonably known to the police, was reasonable. I find that there is sufficient evidence upon which to conclude the search was reasonable, and the police were justified in departing from the “knock and announce” standard. During the briefing at the attachment the particular circumstances of the search at 83 Warman Street were considered, and a plan formed on that basis. Further, the facts known to police prior to entering, along with their experience in carrying out many similar searches, supported a forced entry.
54Mr. Pileggi’s s. 8 Charter rights were not violated by the departure of the “knock and announce” rule.
Section 9: “Everyone has the right not to be arbitrarily detained or imprisoned.”
55When PC Black and PC Hamilton found Mr. Pileggi in his upstairs bedroom, his hands were raised in submission. PC Black ordered Mr. Pileggi to kneel on the floor and advised him he was under arrest for possession for the purposes of trafficking oxycodone. PC Hamilton placed handcuffs on Mr. Pileggi. Mr. Pileggi was cooperative throughout.
56Mrs. Pileggi was arrested as well, but instead of being handcuffed she was permitted to sit on the bed. Mrs. Pileggi was not the target of the search warrant.
57It took approximately seven minutes to clear the home to ensure officer safety. Mr. Pileggi remained on his knees in the bedroom the entire time. Once the home was cleared, DC Wray entered the bedroom and replaced PC Hamilton’s handcuffs with his own. DC Wray and PC Hamilton work in different detachments, and this switch was done simply to keep tabs on inventory. DC Wray next provided Mr. Pileggi with his rights to counsel and a primary caution, and then turned over custody of Mr. Pileggi to PC Wells for transport back to the detachment.
58Prior to departure, however, Sgt. Buligan went through the two-page warrant with Mr. Pileggi.
59Mr. Pileggi submits that by handcuffing him reflexively, and not reassessing that decision when DC Wray exchanged the handcuffs, his detention was arbitrary. In support he relies on R. v. Ahmed-Kadir, 2015 BCCA 346, 22 C.R. (7th) 1, when the accused was detained and handcuffed as part of a domestic dispute. After the premises were cleared for safety, the handcuffs were removed because Mr. Ahmed-Kadir was cooperative, and police were trying to determine whether a domestic dispute had, in fact, occurred.
60An officer who attended the premises a few minutes later recognized Mr. Ahmed-Kadir and advised his colleagues of Mr. Ahmed-Kadir’s affiliation with a gang. Mr. Ahmed-Kadir was handcuffed once again, despite posing no risk.
61The court, in finding that Mr. Ahmed-Kadir’s s. 9 rights were breached, held that while the police had the authority to continue to detain Mr. Ahmed-Kadir while they determined whether an assault had taken place, re-handcuffing him was not reasonably necessary.
62This was not the situation in the case at bar. Mr. Pileggi was arrested upon police entry into 83 Warman Street. As evidenced by the judicial authorization of the telewarrant, police had the requisite reasonable and probable grounds to do so.
63The use of handcuffs was appropriate during the safety check of the house. Thereafter, Mr. Pileggi was being transported to the detachment for processing. Police were acting under proper authority, with a valid warrant, and they were entitled to apply handcuffs and keep them on until Mr. Pileggi was processed at the detachment. I find it is of no moment that DC Wray switched the first pair of handcuffs with a second pair.
64There was nothing arbitrary about his detention. I find that Mr. Pileggi’s s. 9 Charter rights have not been violated.
Section 10(a): “Everyone has the right on arrest or detention to be informed promptly of the reasons therefor.”
65Section 10(a) of the Charter provides that a person charged with an offence has the right to be informed without reasonable delay of the specific offence.
66When PC Black arrested him, Mr. Pileggi was informed he was under arrest for possession for the purpose of trafficking oxycodone. This charge was laid on the strength of the search warrant.
67At about 2:00 p.m. on May 3, 2017, once the Pileggis were taken to the detachment, the search of the home got underway. During the course of the search, the drugs and paraphernalia noted earlier were found in the home. Early on in the search a large bag of white powder was found. Concern arose as to whether the white powder could be fentanyl, which would represent a risk to the officers. The search in the basement was halted until the contents of the plastic bag were identified. About an hour later the all-clear was given by Sgt. Buligan to continue searching the basement. The entire search was completed by 4:50 p.m.
68Given the results of the search, the police were required to consider what new charges would follow. Mr. Pileggi was unaware of any additional charges until DC Hargreaves attended at the detachment to interview him at around 9:30 that evening, when he was re-arrested on the final set of offences. At that point he was offered the opportunity to once again consult counsel (the issue of counsel will be discussed in greater detail when examining Mr. Pileggi’s 10(b) rights), which he declined.
69Mr. Pileggi argues that the violation was aggravated when DC Wray spoke with him upon returning to the detachment that evening, and did not indicate that he was facing additional charges.
70Mr. Pileggi submits that his jeopardy increased significantly following the search of his home, yet he was unaware of this for hours. He states it is this failure of the police, to inform him of the true jeopardy he faced, which violated his right to be informed of the reason for his detention and arrest under s. 10(a) of the Charter. Mr. Pileggi submits that this failure also prolonged the violation of his rights to counsel under s. 10(b) of the Charter.
71As Sopinka J. held in R. v. Evans, [1991] 1 S.C.R. 869, at para. 48:
I should not be taken as suggesting that the police, in the course of an exploratory investigation, must reiterate the right to counsel every time that the investigation touches on a different offence. I do, however, affirm that…the police must restate the accused’s right to counsel when there is a fundamental and discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence than that contemplated at the time of the warning.
72The Crown submits that Mr. Pileggi’s jeopardy did not change significantly based on the results of the search. As the Court of Appeal held in R. v. Guthrie, 2016 ONCA 466, additional charges that are related offences, or are not significantly more serious, do not constitute a change in jeopardy requiring an additional opportunity to consult counsel: see paras. 11-12.
73With the exception of the possession of property obtained by crime, the additional offences Mr. Pileggi faced were all CDSA matters. None could have exceeded the penalty for possession for the purpose of trafficking oxycodone because that offence carries a maximum punishment of imprisonment for life. Thus, submits the Crown, Mr. Pileggi never faced a more serious offence than the original charge he was informed of, at the time of arrest.
74At the time of Mr. Pileggi’s initial arrest, he was advised that he was being charged with possession for the purposes of trafficking. It was impossible for the police to know what further charges might lie until the search was complete.
75While it would have been preferable for Mr. Pileggi to have known the full extent of his jeopardy when he first spoke with counsel, he certainly knew he was charged with possession for the purposes of trafficking oxycodone, a very serious offence.
76I do not find that the failure of the police to advise him of the additional charges until 9:30 p.m. on the night of his arrest constitutes a breach of Mr. Pileggi’s s. 10(a) Charter rights.
Section 10(b): “Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.”
77The Supreme Court of Canada described the magnitude of being detained by the police, and the importance of the right to counsel at the point of detention, in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 41:
A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interface with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase “without delay” must be interpreted as “immediately”. If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises.
78And further, at para. 42:
Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.
79In addition to informing the detainee of the right to counsel and facilitating access to counsel, police also have a concomitant duty to refrain from eliciting information from the detainee who has not yet had an opportunity to speak with counsel.
80Mr. Pileggi states that he was not immediately informed of his right to counsel. Once informed, however, he states that his right to retain and instruct counsel was consistently delayed without reasonable justification; that he was questioned without access to counsel; and that he was never given access to counsel of his choice.
81As noted earlier in these reasons, Mr. Pileggi was arrested at 1:43 p.m. He was not read his rights until 1:50 p.m., once the safety check of his home was completed. Mr. Pileggi believes this seven-minute delay breached his s. 10(b) right to be informed of his right to counsel without delay.
82It is the context that is important in considering the seven-minute delay from the time Mr. Pileggi was arrested, to the time he was provided the informational component of his s. 10(b) right. Police officers were executing a search warrant using a forced entry. Searching and securing the residence is a legitimate reason for this short delay. I think it is reasonable for the police to conduct the search, secure the parties and the residence, and in effect, gain control of the situation prior to meeting their obligation to inform Mr. Pileggi of his s. 10(b) rights: see R. v. Strachan, [1988] 2 S.C.R. 980, at para. 34. Once control of the residence was obtained, DC Wray read Mr. Pileggi his rights to counsel immediately.
83When he was read his rights to counsel, Mr. Pileggi indicated that he understood his rights. He told DC Wray that he would like to call his father to arrange for a lawyer. DC Wray explained to Mr. Pileggi that he could not call his father himself, but that they (the police) could call his father and find out what lawyer Mr. Pileggi wanted to contact. Mr. Pileggi then advised that he did not actually have a lawyer.
84DC Wray explained that the police could make arrangements for Mr. Pileggi to speak with duty counsel if he wanted to do so before finding out who his lawyer was. DC Wray testified that Mr. Pileggi seemed agreeable to that.
85Within minutes, DC Wray handed off Mr. Pileggi to PC Wells for transport to the detachment. DC Wray testified that it is his practice to confirm a detainee’s right to counsel will be facilitated by the other officer at the hand off. DC Wray has no notes to confirm that he advised PC Wells of his conversation with Mr. Pileggi, or of DC Wray’s assurances to him that the police would contact his father to get the name of a lawyer, and that in the interim duty counsel would suffice.
86When questioned as to why a call to counsel was not facilitated from Mr. Pileggi’s home, DC Wray testified that in his eight years of arresting people, the goal has always been to get them to a detachment so they can have a private conversation with counsel.
87PC Wells transported Mr. Pileggi to the detachment. Once there, he did not take any action to help facilitate Mr. Pileggi’s right to access counsel of his choice, or duty counsel. This was left to PC Jacome at the detachment. PC Jacome was on general duties at the station, and she assisted with the Pileggis. She was not involved in the investigation itself. No evidence as to any discussion between PC Wells and PC Jacome was proffered to the court.
88PC Jacome testified that she called duty counsel at 2:39 p.m., for both Mr. and Mrs. Pileggi. Duty counsel called back at 3:01 p.m., but only in respect of Mrs. Pileggi – he was not authorized to speak with Mr. Pileggi. Duty counsel advised PC Jacome that someone would have to call back and make a request for duty counsel specifically for Mr. Pileggi.
89Accordingly, at 3:05 p.m. PC Jacome called duty counsel a second time, leaving a message with regards to Mr. Pileggi. By 3:42 p.m. duty counsel had not yet called back, and PC Jacome informed Mr. Pileggi about the delay. Her notes do not indicate whether she asked Pileggi if he wanted to speak to someone other than duty counsel.
90This was the last contact PC Jacome had with Mr. Pileggi. During the balance of her shift, which was approximately 3.5 hours, PC Jacome was unaware of whether duty counsel ever called to speak with him.
91During cross-examination PC Jacome agreed her log notes indicate that, when at 3:01 duty counsel advised a second call would have to be made for Mr. Pileggi, she was told that police would have to call back in an hour, when duty counsel’s co-worker came in. PC Jacome could not explain what duty counsel meant by this.
92What occurred next in respect of Mr. Pileggi’s right to retain and instruct counsel of choice, is not known with certainty. DC Wray testified that upon his return to the station at 4:55 p.m., he was advised by Acting Sergeant Dzurus that Mr. Pileggi had requested a lawyer, and that the police had facilitated this by placing a call to the requested lawyer. A/Sgt. Dzurus also advised DC Wray that the requested lawyer said a partner would call back, but as at 4:55 p.m., the partner had not yet called back. The court can only assume Mr. Pileggi’s request to speak with counsel of his choice occurred after 3:42 p.m. and before 4:55 p.m.
93Unfortunately, this is the extent of the information available in respect of Mr. Pileggi’s request to speak with counsel of choice. There is no evidence as to how Mr. Pileggi got the name of a lawyer, how this name was relayed to police, and who actually placed the call. Finally, there is no information to suggest the lawyer called back while Mr. Pileggi remained in custody.
94After speaking with A/Sgt. Dzurus, DC Wray went to speak with Mr. Pileggi in the cell area and explained to him what had happened. Because the lawyer Mr. Pileggi requested had not yet called back, DC Wray asked Mr. Pileggi whether he would like to speak to duty counsel, so he would have some legal counsel. Mr. Pileggi agreed, and at 5:00 p.m. DC Wray left a third message for duty counsel for Mr. Pileggi. Duty counsel called back at 5:15 p.m., and Mr. Pileggi had a ten minute phone call with him in a private room.
95DC Wray testified that he would have relayed to duty counsel, when he left the message, that Mr. Pileggi was charged with possession for the purposes of trafficking oxycodone. His notes do not indicate, and he cannot remember, when he called at 5:00 p.m., whether he knew that the powder they found was cocaine and, if so, whether this information was left for duty counsel as well.
96It may be instructive at this point to provide a timeline of Mr. Pileggi’s interaction with police on May 3, 2017.
| Time | Event |
|---|---|
| 1:43 p.m. | Mr. Pileggi placed under arrest |
| 1:50 p.m. | Mr. Pileggi read his rights to counsel |
| 2:08 p.m. | Mr. Pileggi driven to detachment |
| 2:37 p.m. | Mr. Pileggi brought into detachment lodging area (sally port busy, hence lodging delayed) |
| 2:39 p.m. | Duty counsel called, message left (call #1) |
| 3:00 p.m. | Duty counsel calls for wife, advises another call must be made for Mr. Pileggi |
| 3:05 p.m. | Duty counsel called again, message left (call #2) |
| 3:42 p.m. | Mr. Pileggi updated and advised that duty counsel has not yet called |
| Unknown | Mr. Pileggi asks to speak with lawyer X, call made (call #3) |
| 4:55 p.m. | DC Wray advised that Mr. Pileggi has not yet spoken with duty counsel |
| 5:00 p.m. | DC Wray calls duty counsel again, message left (call #4) |
| 5:15 p.m. | Mr. Pileggi speaks to Duty Counsel |
| 9:32 p.m. | D.C. Hargreaves offers to call duty counsel after re-arresting Mr. Pileggi on the additional charges (although this offer is declined) |
97By my calculation, 3 hours and 25 minutes lapsed from the time Mr. Pileggi was read rights to counsel until he spoke with counsel. During this time, however, four calls to counsel were made on Mr. Pileggi’s behalf – three to duty counsel, and one to counsel of Mr. Pileggi’s choosing. A breakdown of these calls is outlined below.
98The first call to duty counsel was made almost immediately after Mr. Pileggi was brought into the station. An unusual situation then arose when duty counsel responding to that call advised he was calling to assist Mrs. Pileggi, not Mr. Pileggi. However, within five minutes a second call to duty counsel was made. Forty-seven minutes after this second call, Mr. Pileggi was advised duty counsel had not yet called back. It is unknown whether Mr. Pileggi, at that point, asked to speak with a specific lawyer.
99However, we do know that at some point over the next sixty-three minutes, Mr. Pileggi provided police with the name of a lawyer he wanted to speak to, and call number three was placed. When DC Wray arrived back at the detachment and learned Mr. Pileggi had not received a call back from counsel of his choosing, DC Wray asked Mr. Pileggi if he would like to speak with duty counsel in the interim. Mr. Pileggi agreed with this, and call number four was placed.
100Mr. Pileggi submits that, based on PC Jacome’s log notes, call number two should be discounted, given duty counsel’s advice that the call back for Mr. Pileggi be in an hour when his co-worker came in, and the call was actually made just five minutes later.
101Even if this call were eliminated from the equation, there were still three calls made to counsel on Mr. Pileggi’s behalf while he remained at the detachment.
102This is not a situation where the police intentionally withheld Mr. Pileggi’s right to access and instruct counsel on a timely basis. There was clearly a delay of over 3 hours, but I find that this delay was inadvertent rather than deliberate.
103Further, I find that Mr. Pileggi was not denied access to counsel of his choice. Upon being read his rights to counsel Mr. Pileggi said he would like to call his father to find out what his lawyer’s name was. When DC Wray offered to contact Mr. Pileggi’s father to obtain the name of his lawyer, Mr. Pileggi advised he actually did not have a lawyer. DC Wray explained that in the meantime, if he wanted to speak to duty counsel before finding out who his lawyer was, that could be arranged. Mr. Pileggi agreed.
104DC Wray did fail to tell PC Wells that someone needed to call Mr. Pileggi’s father to get the name of a lawyer, so only duty counsel was contacted initially. However, at some point between 3:42 p.m. and 4:55 p.m., while still at the detachment, Mr. Pileggi instructed police to place a call to a lawyer of his own choosing. This was call placed for him.
105In R. v. Mortensen, 2011 ONSC 6393, at para. 32, on appeal from a summary conviction, Warkentin J. stated:
When determining whether the detainee has been given a reasonable opportunity to exercise his or her right to counsel of choice, it is not for the court to determine whether the police could have done more in the circumstances, but rather, whether what they did was reasonable.
Where a detainee speaks with alternate counsel, someone other than counsel initially requested, and there is no complainant at any time about the advice received, this may properly be viewed as a waiver of the detainee’s right to counsel of choice. Speaking with alternate counsel is a choice every detainee is entitled to make.
106Mr. Pileggi spoke with duty counsel at 5:15 p.m. Following this call Mr. Pileggi did not complain about the advice he received.
107The 3-hour delay would have not been tolerable if the police had questioned Mr. Pileggi before he had an opportunity to speak with counsel. As the Supreme Court has held in R. v. Manninen, [1987] S.C.J. No. 41, s. 10(b) imposes two duties on police over and above the duty to inform an accused of their rights. The first duty is to provide an accused with a reasonable opportunity to exercise their right to retain and instruct counsel without delay.
108The second duty is elucidated at para. 23:
Further, s. 10(b) imposes on the police the duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel. The purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advise as to how to exercise those rights.
109It is true that Mr. Pileggi was not questioned while detained at the detachment. Nevertheless, it bears noting that before Mr. Pileggi was transported to the detachment, while still in his home, and before speaking with counsel, Sgt. Buligan reviewed the warrant with him. During this exchange, Mr. Pileggi was asked whether he wanted to tell Sgt. Buligan “where anything was.” On its face this is entirely inappropriate, and could certainly push Mr. Pileggi’s delayed contact with counsel into territory bordering on a Charter breach. However, the transcript clarifies that while Sgt. Buligan did ask this, it was in direct response to a spontaneous statement made by Mr. Pileggi, which was not prompted by a question.
110I find that Mr. Pileggi was properly informed of his rights to counsel, and given a reasonable opportunity to exercise these rights. As such, his s. 10(b) Charter rights were not breached.
SECTION 24(2) ANALYSIS
111In the event I am wrong in finding that Mr. Pileggi’s Charter rights were not infringed, I am not satisfied that, when viewed either independently or cumulatively, the alleged breaches were such that the evidence should be excluded.
112As Justice Henschel held in R. v. Ruscica, 2017 ONCJ 864, 401 C.R.R. (2d) 224, at para. 98:
Exclusion of evidence is not automatic upon a finding that it was obtained in a manner that violated the Charter. Section 24(2) of the Charter requires the Court to exclude evidence only if it is established that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute. The accused bears the burden of proving this on a balance of probabilities.
113The leading authority for the application of s. 24(2) is set out in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32. There, the Supreme Court set out a three-part test to be applied when considering the admissibility of evidence when Charter breaches are alleged (at para. 71):
When faced with an application for exclusion under 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to:
(1) the seriousness of the Charter-infringing state conduct;
(2) the impact of the breach on the Charter-protected interests of the accused; and
(3) society’s interest in the adjudication of the case on its merits.
114With respect to the first branch of the test, if there was an infringement of Mr. Pileggi’s Charter rights, there was nothing in the evidence before me to suggest that the police – either those in the crime unit or those at the detachment – willfully neglected or disregarded Mr. Pileggi’s Charter rights.
115During the briefing conducted by Sgt. Buligan at the detachment, the layout of Mr. Pileggi’s home was considered when the decision was made to carry out a surprise entry. This was not unreasonable given the stated rationale of avoiding the destruction of evidence. Further, given that this was a drug warrant, consideration was given as to whether weapons might be present, either on Mr. Pileggi himself, or in the home. This uncertainty also supported a surprise entry. To this end, if it is found that a surprise entry was unnecessary and therefore, the actions of the police resulted in a breach of Mr. Pileggi’s s. 8 Charter right, I find that the breach occurred within the context of valid concerns for officer safety and destruction of evidence.
116In discussing a similar finding by the trial judge, the Ontario Court of Appeal, in R. v. Nguyen, 2007 ONCA 645, 51 C.R. (6th) 356, stated, at paras. 39-40:
The law regarding the factor of police misconduct resulting in a Charter violation is not simply one of good faith or bad faith. Rather, police misconduct is to be placed on a continuum for the purposes of assessing the seriousness of the conduct: see Harris, supra, at para. 62. That continuum includes conduct between that of a good faith error and a blatant disregard for constitutional rights: see R. v. Kitaitchik (2002), 166 C.C.C. (3d) 14 at 26-27 (Ont. C.A.). Here, the trial judge's opinion can be fairly interpreted to mean that she viewed the police conduct as falling considerably nearer the good faith end of that continuum.
In any event, the absence of good faith is but one factor, albeit an important one, that is considered when assessing the seriousness of a Charter breach. Therefore, even if it could be said that the trial judge unreasonably found good faith in this case -- although I believe she properly did so -- it does not necessarily end the matter. The trial judge's assessment about the seriousness of the breach also included:
- The evidence led to a reasonable belief that the premise was not being used as a dwelling at the time the warrant was executed.
- The decision to enter without knock and notice was based on a genuinely held belief that it was safer to do so in the circumstances. It was based on the officer's fear of the unknown in the context of a drug bust and the dangers he knew sometimes occur.
- The officer did in fact employ knock and notice in other instances where he knew enough about the persons or circumstances within to alleviate the concern for a violent greeting if persons inside had the time to organize it.
- The ultimate decision to enter without knock and notice was not made exclusively on the basis of a police policy.
- When the officer later came to have clear legal direction regarding "knock and notice", he thereafter complied with the direction.
- The otherwise reasonable manner in which the warrant was executed, which included the fact that uniformed officers announced their presence as police several times, and the fact that officers holstered their weapons as soon as they realized that the appellant and another occupant, who would not present themselves upon command and were hiding in the basement, were not a threat.
- The fact that the officers operated under a lawfully issued judicial authorization to search.
117In consideration of the of the following facts, I find that any breach connected to the no-knock entry, would fall at the good faith end of the continuum:
- This type of entry was employed on the basis of a genuinely held belief that it was safer to do so for both officer safety reasons and to prevent the destruction of evidence.
- The decision was evaluated relative to the specific factors in this case and not on the basis of a blanket police policy.
- The warrant was executed in an otherwise reasonable manner.
- Officers were operating under a lawfully issued judicial authorization to search the home.
118In terms of the impact on Mr. Pileggi’s Charter protected interests, the police were going to enter the residence with a valid search warrant, with or without the surprise entry. This type of entry did not change the discovery of the evidence within the home. However, because of the high degree of privacy expected in one’s home, and the intrusive nature of a no-knock entry, if it is found to be a violation of s. 8, it would be a serious breach favouring the exclusion of evidence.
119On the third prong, exclusion of this evidence, highly reliable evidence of possession for the purpose of drug trafficking, would devastate the Crown’s case. This factor strongly favours inclusion of the evidence. Balancing the three factors, considering the seriousness of the charges, the evidence ought to be included in order that the case be adjudicated on its merits.
120I find there was nothing egregious about Mr. Pileggi being handcuffed, either during the time it took to clear the home to ensure officer safety, while being read his rights, or while being transported to the detachment.
121In respect of s. 10(a), Mr. Pileggi was told what he was being arrested for immediately. That the charges evolved during the course of the search is to be expected, and Mr. Pileggi was advised of these additional charges when the lead investigator, DC Hargreaves, interviewed him later that evening.
122If it is found that a breach of Mr. Pileggi’s 10(a) right occurred, I find that it is not a case where the police did so with the intent to mislead him. In the context of an evolving investigation, the delay in advising Mr. Pileggi of the additional charges was not with the intent to elicit information from him during an interview. Mirroring the analysis above, a breach in this context is on the minor end of the spectrum and it did not seriously impact Mr. Pileggi’s Charter protect interests as no evidence was ultimately obtained during this delay in advising him of the exact charges to be laid. Even if it is found that this breach occurred as part of one transaction, connected to the search of his home, the administration of justice favours inclusion of the evidence obtained, both before and after the breach.
123Turning to s. 10(b), I would agree that a delay of over three hours is not commendable. However, the reasons for the delay do not approach the level of seriousness that would warrant exclusion of the evidence. Police did make timely efforts to ensure Mr. Pileggi spoke with counsel. A call was made to duty counsel once Mr. Pileggi was brought into the station for processing. When Mr. Pileggi later said he wished to speak to a specific lawyer, a call was made to that individual.
124Similar to the accused in Ruscica, if there was a violation of s. 10(b), it was not a complete denial of the right to counsel. Mr. Pileggi ultimately spoke with duty counsel, and received legal advice before giving a statement.
125The police efforts to contact counsel were reasonable in the circumstances and any breach falls on the good faith end of the spectrum. While the delay in speaking to counsel and the subsequent impact on Mr. Pileggi may be considered a moderate breach, I still find that the final factor weighs heavily in favour of admitting the evidence. Society’s interest in the adjudication of this case on the merits is a high one. The evidence uncovered during the search of Mr. Pileggi’s home is integral to the Crown’s case, and excluding it would seriously undermine public confidence in the criminal justice system.
CONCLUSION
126I do not find that Mr. Pileggi’s s. 8, 9, 10(a) or 10(b) Charter rights were infringed. Accordingly, Mr. Pileggi’s application to exclude the evidence obtained during the search of 83 Warman Street, and the detention and questioning of Mr. Pileggi, is dismissed.
Delivered orally on April 3, 2019
NOTE: This ruling, as delivered orally, is to be considered the official version and takes precedence over these written reasons read into the record. If there are any discrepancies between the oral version and this written version, it is the oral version that is the official record to be relied upon.
