Court File and Parties

Newmarket Court File No.: CR-16-198-00 Date: 2019-04-12 Ontario Superior Court of Justice

Between:

HER MAJESTY THE QUEEN – and – JOHN KALDUS Defendant/Applicant

Counsel: Avik Ghosh, for the Crown Deepak B. Paradkar, for the Defendant/Applicant

Heard: March 25, 26, and 27, 2019

Reasons for Decision

DE SA J.:

Overview

[1] The Applicant is charged with various drug related charges. The Applicant now seeks to exclude evidence obtained by the police at the scene of his arrest (namely, the drugs). The Applicant argues that in the course of the investigation, police violated his section 8, 9, 10(a) and 10(b) Charter rights. Given the severity of the breaches, and the flagrant disregard for constitutional standards, the Applicant submits that exclusion of the evidence is necessary to maintain respect for the administration of justice.

[2] I agree with the Applicant. In my view, the breaches at issue and the impact of those breaches on the Charter protected interests warrant exclusion of the evidence.

[3] The reasons for my decision are outlined below.

Summary of Facts

[4] On December 24, 2015, at approximately 11:21 p.m., Police Constable Strome (PC Strome) was dispatched to a call for a possible impaired driver in the area of King Road and Weston Road in the Township of King.

[5] At 11:26 p.m., PC Strome located the vehicle travelling eastbound on King Road, just west of Dufferin Street in the Township of King. PC Strome testified that he observed the vehicle fading slightly right to left in the lane which made him believe the driver was possibly impaired. PC Strome activated his emergency lights to pull over the vehicle.

[6] As PC Strome activated his roof lights, he noted that the driver’s side window was partially rolled down and the driver threw what seemed to be five to six pieces of paper out of the window. While not evident from the in-car video, PC Strome also testified that he observed what he believed to be a baggie of marijuana tossed out. [^1]

[7] PC Valin was on route, and also heading towards the vehicle’s location. Over the radio, PC Strome described the location where the items were thrown, and asked PC Valin to try and locate the items tossed from the vehicle.

[8] The vehicle travelled approximately 100-150 metres eastbound on King Road at which time the vehicle came to a stop at an Esso parking lot on the southwest corner of Dufferin Street and King Road. After stopping the vehicle, PC Strome exited his car, and approached the driver’s side of the vehicle. PC Strome testified that as he stood by the driver’s side window, he detected a strong smell of marijuana.

[9] At approximately 11:28 p.m., PC Strome advised the accused who was the driver of the vehicle that he stopped him because of a driving complaint. PC Strome asked the accused how much marijuana he threw out of the window. The accused told PC Strome that it was a gram and a half of marijuana.

[10] PC Strome testified that after briefly speaking with the accused, he no longer had any concerns regarding possible impairment. PC Strome had the accused and passenger remain in the vehicle as PC Valin and other officers who had then arrived on scene searched for what had been thrown out. PC Strome advised the occupants that they were under investigative detention for the possession of marijuana. He left the accused and passenger alone in the vehicle as he returned to the cruiser. He thereafter returned to the accused’s vehicle and continued speaking with the occupants as the other officer searched for the discarded items.

[11] At approximately 11:36 p.m., the police had still not discovered what had been thrown out by the accused. PC Strome asked the accused to exit the vehicle for the purpose of conducting a “pat down” search. PC Strome testified that he wanted to do a “pat down” search of the accused for officer safety. In his evidence, PC Strome did not identify anything specific that gave rise to a specific safety concern.

[12] As the Applicant exited the vehicle for the pat down search, PC Strome heard the sound of a pill bottle tipping over, and pills pouring out. PC Strome looked inside the opened door of the vehicle and saw that pills from a pill bottle had spilled all over the driver’s side floor. PC Strome believed the pills were controlled substances. Based on his observations, at 11:39 p.m., PC Strome arrested the Applicant for possession of a controlled substance.

[13] PC Strome searched the accused’s vehicle incident to the arrest and found 240 pills underneath the driver’s seat and two large pill bottles. One pill bottle had the label partially torn off and the other bottle had no label at all.

[14] Back -up officers eventually found a 100 mcg fentanyl patch and 8 grams of marijuana on the road in the area where the Applicant was believed to have thrown the items out of his vehicle.

[15] At 12:05 a.m., PC Strome arrested the accused for the marijuana and for the pills located in the vehicle. At this time, PC Strome advised the Applicant of his rights to counsel and caution for the first time. This was close to 40 minutes after the accused had been detained for the marijuana investigation. After being given the rights to counsel, the accused stated that he would like to speak with counsel.

[16] When PC Strome was asked in cross-examination why he did not provide the accused with the rights to counsel at the outset when the accused was detained for the marijuana, he testified that he was going to wait until the search was complete to see everything that was seized. At that point, he could provide the accused with a full understanding of his jeopardy. He also testified that he was intending to release the accused at the scene. As such, he did not expect that delaying the right to counsel would be of any significance.

[17] The evidence seized from inside the vehicle was 240.5 opiate and pain killer pills (34 x 5 mg oxycontin, 48 x 5 mg oxycocet, 68 x 60 mg morphine, 50.5 x 80 mg oxycodone, 40 x 80 mg oxycontin). There were also business cards, documents and a driver’s license in the Applicant’s name.

[18] The Applicant was transported to 4 District Headquarters. He eventually spoke to duty counsel at 12:26 a.m. on December 25, 2015.

Charter Issues Raised by the Applicant

[19] The Applicant takes the position that PC Strome violated his section 8, 9, and 10(a) and (b) Charter rights in the course of his interactions with the Applicant. In short, the Applicant argues:

1. PC Strome unreasonably detained the Applicant for the marijuana investigation and violated his sections 10(a) and 10(b) Charter rights with the initial questioning;
2. PC Strome did not have lawful authority to ask the Applicant to step out of the vehicle and thereby conducted an illegal search (section 8 of the Charter);
3. PC Strome violated the Applicant’s section 10(b) Charter rights by delaying the provision of his rights to counsel;
4. The Charter breaches taken together warrant the exclusion of the evidence under section 24(2).

Analysis

1) Was the initial detention unlawful and/or did the initial questioning violate the Applicant’s section 10(b) Charter rights?

[20] The Applicant takes the position that the detention was not authorized by section 216(1) of the Highway Traffic Act (HTA). According to the Applicant, detentions under section 216 of the HTA are circumscribed by their purpose and must be brief, unless other grounds are established for further detention. According to the Applicant, the police officer did not have a basis to detain him for a criminal investigation given the limited observations up to this point.

[21] If he did have a basis to detain, the Applicant argues that PC Strome’s initial questioning was in violation of section 10(a) and 10(b) of the Charter. The Applicant argues that the questioning was not related to the HTA/impaired investigation. PC Strome’s questioning improperly invited the accused to incriminate himself in relation to a criminal investigation. The defence relies on R. v. Mellenthin, [1992] 3 S.C.R. 615, where the Supreme Court explained:

Check stop programs result in the arbitrary detention of motorists. The programs are justified as a means aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by dangerous vehicles. The primary aim of the program is thus to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars. The police use of check stops should not be extended beyond these aims. Random stop programs must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search.

It has been seen that as a result of the check stop the appellant was detained. The arbitrary detention was imposed as soon as he was pulled over. As a result of that detention, it can reasonably be inferred that the appellant felt compelled to respond to questions put to him by the police officer.

The police questions pertaining to the appellant's gym bag, the search of the bag and of the appellant's vehicle were all elements of a search. Furthermore, that search was made without the requisite foundation of reasonable and probable grounds. It was therefore an unreasonable search in contravention of s. 8 of the Charter. [Emphasis added]

[22] In this case, the initial detention was for the complaint of impaired. There is no real dispute that the initial stop was authorized under section 216(1) of the HTA.

[23] In the circumstances, in my view, it would have also been reasonable for the officer to make general inquiries regarding the item thrown from the vehicle. R. v. Peterkin, 2015 ONCA 8. The circumstances gave rise to the spectre that an offence had been committed and evidence was discarded. I agree with the Crown that the officer would have been justified in asking the accused some exploratory questions with a view to “sorting out” the situation. R. v. Sawatsky. As explained in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 at paras. 28 and 29:

As discussed more fully in Grant, in a situation where the police believe a crime has recently been committed, the police may engage in preliminary questioning of bystanders without giving rise to a detention under ss. 9 and 10 of the Charter. Despite a police request for information or assistance, a bystander is under no legal obligation to comply.

The line between general questioning and focussed interrogation amounting to detention may be difficult to draw in particular cases. It is the task of the trial judge on a Charter application to assess the circumstances and determine whether the line between general questioning and detention has been crossed. While the trial judge in this case did not have the benefit of the test refined in Grant, his findings on the facts, supported by the evidence, lead to the view that a reasonable person in the circumstances would have concluded that the initial encounter was preliminary investigative questioning falling short of detention. [Emphasis added]

[24] No doubt exploratory questioning will often elicit incriminatory responses. Preliminary questioning for the purpose of “sorting out” a situation, however, is still permitted because the purpose of inquiry is not directed at incriminating the accused. Legitimate police questioning in these contexts is directed at assessing whether an investigation is warranted. R. v. Hall, [1998] O.J. No. 2607 (C.J.). The brief “physical delay” occasioned by the police engagement is also justified for the limited purpose of allowing the officer to sort out the situation. R. v. Suberu, supra. [^2]

[25] A similar approach to police powers can be observed in various other contexts where the Charter rights of a citizen are potentially implicated. In various contexts, the courts have focussed on the police purpose as the basis to authorize the police conduct in question, but have also used this same purpose to strictly limit the scope of the police authority at issue. Dedman v. The Queen, [1985] 2 S.C.R. 2. See also R. v. Evans (1996), [1996] 1 S.C.R. 855, 104 C.C.C. (3d) 23 (S.C.C.). As Sharpe J.A. commented in R. v. Mulligan, in the context of the implied license doctrine at para. 21 and 27:

As Sopinka J. stated in R. v. Evans, supra at 29: “not every form of examination conducted by the government will constitute a ‘search’ for constitutional purposes”. The reason is clear. If every police inquiry or question constituted a search, the public’s interest in law enforcement would be unrealistically curtailed in favour of an absolute right of privacy of all individuals against state intrusion, without regard to the level of intrusion.

As with all police investigative powers, this licence must be strictly curtailed to avoid the risk of abuse. The officer must have a bona fide belief that gives rise to a reasonable suspicion of criminal activity being perpetrated against the owner or occupant or the property.

[26] In the same way, the scope of authorized police questioning must be carefully limited to what is reasonably necessary to “sort out” the situation. In the course of such interactions, it is also incumbent on officers to treat the potential detainee fairly, and to give proper consideration to the subject’s section 10(b) Charter rights. The police must not improperly exploit a detainee’s position of vulnerability as a means to subvert his/her Charter rights. As Doherty J.A. explained in R. v. Sawatsky:

The right to counsel enshrined in s. 10 (b) of the Canadian Charter of Rights and Freedoms is a principle of fundamental justice and reflects a commitment to the fair treatment of persons detained by the police even at the expense of investigative efficiency: R. v. Clarkson, [1986] 1 S.C.R. 383 at p. 394, 25 C.C.C. (3d) 207 at pp. 217-18.

Section 10 (b) recognizes that persons detained by the police operate under a very real disadvantage and must be able to seek the assistance of counsel in a timely fashion.

The noble purposes underlying s. 10 (b) identified by the Chief Justice must animate any consideration of its application to a given fact situation. A s. 10 (b) claim cannot be approached as if it were an attempt to place a technical obstacle in the way of effective law enforcement.

[27] In this case, while the officer may have been uncertain as to what was discarded, he was unfair in the manner in which he engaged the accused with his questioning. PC Strome specifically questioned the accused with the purpose of implicating him in the suspected criminal offence.

[28] PC Strome’s testimony also makes it clear that the initial questioning was not related to the HTA/impaired investigation. Rather, PC Strome wanted to verify his suspicion regarding the items thrown from the vehicle. Accordingly, I agree with the defence that the Crown cannot rely on the Orbanski line of authority to justify the questioning. As the Supreme Court explained in R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3 at para. 57:

As described earlier, the scope of authorized police measures is carefully limited to what is reasonably necessary to achieve the purpose of screening drivers for impaired driving. Further, the limitation on the right to counsel has strict temporal limits — there is no question that the motorist who is not allowed to continue on his way but, rather, is requested to provide a breath or blood sample, is entitled to the full protection of the Charter right to counsel. [Emphasis added.]

[29] In the circumstances here, I agree with the defence that the question, as framed, was specifically directed at incriminating the accused in relation to the drugs that had been discarded. Accordingly, I find the questioning violated the Applicant’s 10(a) and 10(b) Charter rights.

2) Did PC Strome have lawful authority to ask the Applicant to step out of the vehicle and thereby conducted an illegal search (section 8 of the Charter)?

[30] The Applicant submits that the police did not have the lawful authority to ask the Applicant to step out of the vehicle. According to the Applicant, the police actions amounted to an unreasonable search. The Applicant argues that the request to exit, and the “pat down” of the Applicant was a veiled attempt to search the accused and the vehicle for drugs.

[31] In R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, the Supreme Court took the opportunity to address the limits to the authority to conduct a “safety search”. The Supreme Court required that there be an objectively discernible basis for the concern. Police could not just routinely search everyone for “safety” reasons. Nor could safety searches be based solely on the personal idiosyncratic views of the officer.

[32] As the Supreme Court explained, there must be an objectively discernible basis or “reasonable grounds” to believe that there is an imminent threat to their safety. Additionally, the nature of the search conducted must be confined to what is required to eliminate the perceived threat. At paras. 43-44 the Court explained:

[T]he law will justify the exercise of this police power only if exercising it is reasonably necessary in order for the police to conduct the safety search in question (Clayton, at paras. 21, 26 and 31). As I explained above, it is only when police officers have reasonable grounds to believe that there is an imminent threat to their safety that it will be reasonably necessary to conduct such a search. This limit guarantees that the lawful police power is not excessively broad. In so doing, it ensures that the law itself is reasonable and can be reasonably delineated.

This common law power to conduct searches for safety purposes is the reasonable lawful authority for the search carried out by Sgt. Boyd. The power was engaged because Sgt. Boyd had reasonable grounds to believe that there was an imminent threat to the safety of the public or the police and that the search was necessary in order to eliminate that threat. [Emphasis added]

[33] Obviously, the assessment must look at the situation and the circumstances known to the officer at the time. In addition, the police must be given a certain amount of latitude in their assessment of the situation, and the steps that are necessary to ensure their safety. The question is not whether the reviewing justice would have acted in the manner the officer did. It is whether or not there was an objectively discernible basis for the officer to have the concern and whether the nature of the search was justified in the circumstances. The Supreme Court’s comments in R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, albeit in the context of a dynamic entry, at paras. 22-23 have evident bearing on the issue:

First, the decision by the police must be judged by what was or should reasonably have been known to them at the time, not in light of how things turned out to be. .. Whether there existed reasonable grounds for concern about safety or destruction of evidence must not be viewed “through the ‘lens of hindsight’”: Crampton v. Walton, 2005 ABCA 81, 40 Alta. L.R. (4th) 28, at para. 45.

Second, the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannot be expected to measure in advance with nuanced precision the amount of force the situation will require: R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at para. 73; Crampton, at para. 45. It is often said of security measures that, if something happens, the measures were inadequate but that if nothing happens, they were excessive. 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. 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.

[34] I agree with the Crown that the court should not be playing the role of a Monday morning quarterback in evaluating the officer’s decisions. The potential dangers often faced by police in what may seem to be even the most innocuous of situations cannot be ignored. Police are authorized to engage in acts “reasonably necessary” to ensure their safety in the course of carrying out their duties. As Doherty explained in R. v. Golub at para. 44-46:

... In deciding whether the police were justified in taking steps to ensure their safety, the realities of the arrest situation must be acknowledged. Often, and this case is a good example, the atmosphere at the scene of an arrest is a volatile one and the police must expect the unexpected. The price paid if inadequate measures are taken to secure the scene of an arrest can be very high indeed. Just as it is wrong to engage in ex-post facto justifications of police conduct, it is equally wrong to ignore the realities of the situations in which police officers must make these decisions.

In my opinion, one cannot ask the police to place themselves in potentially dangerous situations in order to effect an arrest without, at the same time, acknowledging their authority to take reasonable steps to protect themselves from the dangers to which they are exposed. If the police cannot act to protect themselves and others when making an arrest, they will not make arrests where any danger exists and law enforcement will be significantly compromised. The frustration of the effective enforcement of the criminal law is the hallmark of the exceptional circumstances identified in Feeney.

I would hold that where immediate action is required to secure the safety of those at the scene of an arrest, a search conducted in a manner which is consistent with the preservation of the safety of those at the scene is justified. [Emphasis added]

[35] While I recognize that deference is warranted, in this case, the officer was not able to point to anything that gave rise to a specific safety concern in the circumstances. The in-car video reveals that the officer left the occupants unsupervised more than once as he returned to his cruiser. He allowed the passenger to roam around the car without exercising any control over him. He only decided to conduct a safety search when the officers were not able to locate what was discarded.

[36] In the circumstances, I do not accept that the officer asked the Applicant to exit the car for safety reasons. I agree with the Applicant that this direction was a veiled attempt to search the accused and the vehicle for evidence of the suspected offence.

[37] Accordingly, in the circumstances, I find that the request to exit the vehicle was an unreasonable search.

3) Did PC Strome violate the Applicant’s 10(b) Charter rights by delaying the provision of his rights to counsel?

[38] The Applicant submits that the police officer’s decision to delay the provision of his rights until completing the search violated his right to counsel. The Applicant argues that he should have been afforded his section 10(b) Charter rights at the moment PC Strome decided to further investigate the offence of marijuana. The delay in the provision of the 10(b) Charter right was not justified in the circumstances.

[39] Section 10(a) of the Charter requires that a person be informed of the reasons for the arrest or detention immediately; the reasons should be conveyed before questioning: R. v. Evans, [1991] 1 S.C.R. 869, at para. 71. The underlying purpose is obvious: an individual can only exercise his section 10(b) Charter right in a meaningful way if he knows the “extent of his jeopardy”: R. v. Black, [1989] 2 S.C.R. 138, at pp. 152-3. [^3]

[40] Once an individual is detained, section 10(b) is also engaged and guarantees their right to retain and instruct counsel without delay, and to be informed of that right.

[41] This right imposes both an “informational” and an “implementational” duty on police. The informational duty requires that police inform the detainee about their right to retain and instruct counsel without delay. The implementational duty requires that police provide the detainee with a reasonable opportunity to retain and instruct counsel. The implementational duty also requires that police refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach a lawyer, or the detainee has unequivocally waived the right to do so.

[42] In this case, clearly the Applicant’s section 10(b) Charter rights were violated with the delay. The accused was detained for close to 40 minutes before being given the rights to counsel. PC Strome testified that he intended to release the accused at the scene after the search of the vehicle was completed. According to PC Strome, there was no way to provide the accused with “privacy” at the roadside. Giving the accused immediate access to a lawyer was not feasible in the circumstances. PC Strome also testified that he wanted to wait until the search was completed so that he could provide the Applicant the full nature of the jeopardy he faced.

[43] Even if PC Strome’s explanation could justify a delay of the implementational duties, it does not excuse the failure to provide the Applicant with the informational rights.

[44] Section 10(b)’s purpose is to ensure that individuals know of their right to counsel, and can access that right in situations where they are vulnerable to the exercise of state power and in a position of legal jeopardy. The right to counsel is meant to help detainees regain their liberty, and guard against the risk of involuntary self-incrimination: R. v. Bartle, [1994] 3 S.C.R. 173, at para. 17. As the Supreme Court explained 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 interference 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.

[45] I agree with the Applicant that the delay in the provision of rights clearly violated his section 10(b) Charter rights. In this case, the Crown reasonably concedes that the accused’s 10(b) rights were violated.

4) Should the evidence be excluded under Section 24(2) of the Charter?

[46] The Supreme Court elucidated a three-branch formulation of the section 24(2) analysis in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 and R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494. In Grant at para. 71, the Court summarized the framework for determining whether the administration of justice would be placed into disrepute if the evidence was to be excluded:

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

[47] The onus is on the accused to establish on a balance of probabilities that admission of the evidence would bring the administration of justice into disrepute.

[48] In this case, the seriousness of the police conduct is at the higher end of the spectrum. This is not a case of an inadvertent or minor error. Nor can the Crown rely on a claim of “good faith” to excuse conduct which falls so far below what is reasonably expected. The police approach was problematic from the outset. While the initial detention was lawful, under the first branch the conduct following that detention fell well below what is expected of the police in the circumstances.

[49] When dealing with a detained citizen, the police must be cognizant and respectful of the accused’s Charter rights. The police actions here were a flagrant breach of the Charter rights at issue. The accused’s section 10(a) and 10(b) rights were violated at the outset with the officer’s inappropriate questioning. The accused was detained for close to 40 minutes without being informed of the right to counsel. Moreover, the delay was not justified by the officer for any reason other than administrative convenience.

[50] Similarly, the officer’s search of the Applicant and vehicle (request to exit) under the guise of a “pat down” safety search is also at the more serious end of the spectrum. Exigency and public safety cannot be used as pretext to improperly interfere with Charter rights.

[51] Under the second branch, the impact of the breaches on the Charter protected interests was also significant. The request to exit, and the pat down search constituted a serious intrusion on the privacy of interests of the accused. Absent a lawful basis, individuals have the right not to be searched.

[52] The failure to advise the Applicant of the rights to counsel following the detention also had a serious impact on the Charter protected interest. The right to counsel in the face of detention and arrest is critical to maintaining the balance in a free and democratic society. As Doherty J.A. explained in R. v. McGuffie, 2016 ONCA 365, [2016] O.J. No. 2504, at para. 80, “access to legal advice while detained is fundamental to individual liberty and personal autonomy in a society governed under the rule of law.”

[53] The Crown argues that the impact on the Charter protected interests is diminished by the fact that no statements are being relied upon by the Crown. Moreover, the police would have discovered the evidence sought to be tendered in any event. The police would have arrested the Applicant once the drugs were located at the roadside, and would have been in a position to search the vehicle.

[54] Under the third branch, the Crown also points out that the evidence at issue is reliable evidence, and is necessary to prove the Crown’s case. The Crown also emphasizes the fact that the offences themselves are very serious.

[55] There is no doubt that society’s interest in adjudicating the case on its merits is high. When exclusion of the evidence will essentially end the prosecution on serious charges, the third branch will strongly favour admission. There is no doubt that the administration of justice suffers significant harm by a failure to have serious charges adjudicated on their merits.

[56] However, to permit the third branch to be used as a means to routinely excuse serious Charter violations would inevitably undermine the significance of Charter rights altogether. The courts cannot condone serious Charter violations by always giving undue weight to the seriousness of the charges in the analysis. It is the long-term repute of the administration of justice which must always be considered. As explained in Grant at para. 84:

The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.

[57] In this case, the serious nature of the breaches weighs heavy in the analysis. In my view, admission in the circumstances would send the wrong message regarding the significance of the rights in question given the extremely flagrant nature of the breaches. In my view, the long term repute of the administration of justice requires that the evidence be excluded.

[58] Police must respect the right to counsel particularly in contexts where an accused is the most vulnerable. As Doherty J.A. explained in McGuffie, at para. 83, “[t]he court can only adequately disassociate the justice system from the police misconduct and reinforce the community’s commitment to individual rights protected by the Charter by excluding the evidence. . . . This unpalatable result is the direct product of the manner in which the police chose to conduct themselves.”

[59] Given the exclusion, the Crown has acknowledged it will not be in a position to establish the offences. Accordingly the charges against the accused are dismissed.

[78] I thank both counsel for their submissions.

Justice C.F. de Sa Released: April 12, 2019

Footnotes

[^1]: Audio from the dispatch recordings does not support the testimony of the officer in this regard. After speaking with the driver, the officer states over the police radio that the driver may have thrown envelopes containing marijuana out of the window. [^2]: Obviously, if the nature and extent of the “delay” exceeds what is reasonable in the circumstances to sort out the situation, both sections 9 and 10 of the Charter will be engaged. Detention is determined both by the context of the encounter as well as the nature and extent of the delay: See R.v. Suberu, supra. 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. [^3]: The courts have recognized exceptions when the circumstances warrant it. For example, where health and safety is at stake or where there is a specific exception in place for an HTA/regulatory purpose, there may be a basis to delay providing a detainee the right to counsel.