COURT FILE NO.: CR-17-0000504 DATE: 20190426 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Respondent Craig Brannagan for the Crown
- and -
RANDI WASYLYK Applicant Tyler Smith for Ms. Wasylyk
HEARD: March 4, 5, and 7, 2019.
RULING RE: APPLICATION TO EXCLUDE EVIDENCE
CORRICK J.
Introduction
[1] The applicant, Randi Wasylyk, is charged with unlawful possession of a loaded firearm contrary to s. 95(1) of the Criminal Code, unlawful possession of a firearm contrary to s. 92(1) of the Criminal Code, and accessory after the fact to the offence of discharging a firearm contrary to s. 463(b) of the Criminal Code.
[2] Ms. Wasylyk was charged on August 20, 2016. That evening, at approximately 10:58 p.m., a man was shot on the street near Jones and Danforth Avenues in Toronto. Witnesses called 911 to report the shooting, and provided descriptions of the people involved. Police were dispatched to the area to look for the shooter.
[3] At approximately 11:06 p.m., police approached Ms. Wasylyk and her former co-accused, Daniel Green, as they were walking near Strathcona Avenue, about 350 metres away from the site of the shooting. The police searched a bag Ms. Wasylyk was carrying, and discovered the firearm that had been used in the shooting at Jones and Danforth earlier that night. The firearm was loaded, with a bullet in the chamber.
[4] Ms. Wasylyk applies to exclude the firearm from evidence pursuant to s. 24(2) of the Charter of Rights and Freedoms on the basis that her rights guaranteed by ss. 8, 9, 10(a) and 10(b) of the Charter were violated.
[5] Counsel agreed that the court would hear the evidence on the Charter application and the trial together.
[6] I will deal with the Charter application in the chronological sequence in which the breaches are alleged to have occurred.
Breaches of Sections 8 and 9
Summary of the Evidence
[7] Two sets of officers were involved in the arrest and search of Ms. Wasylyk: Officers Hardie and Bertin, and Officers Amah and Zhou. All of the officers, except Officer Zhou, gave evidence relevant to the alleged breaches of Ms. Wasylyk’s ss. 8 and 9 rights. Their evidence is as follows.
[8] Officers Hardie and Bertin testified that they were on general patrol in a stealth car when they heard a radio call at 10:56 p.m. regarding the sound of gun shots. Soon thereafter, they heard a call confirming that there had been a shooting. Officer Amah also testified that he heard a radio call reporting gun shots, but he recalled the time as 11:01 p.m. He and his partner, Officer Zhou, were driving a marked police van at the time.
[9] Further information was broadcast over the radio when the two sets of officers were en route to the area of the shooting. Officer Hardie recorded the information in her notes as follows:
Suspect southbound on Jones Avenue, male, black, white t-shirt, 5’10” or 5’11”, 20 years, black bag, southbound on Jones from Danforth.
Receive information that male suspect was with female, white, heavy set, same height, brown hair.
[10] Officer Bertin testified that this call came in at 10:59 p.m. He recorded the description of the suspect as follows:
Male, black, 20 years, white t-shirt, black bag, 5’10” - 5’11”, southbound on Jones from Danforth.
[11] Officer Amah recorded more detailed information in his memo book as follows:
- suspect is male, black, 5’10” - 5’11”, 20 years old, white t-shirt, black bag, southbound on Jones.
- approximately three shots – saw three males leaving on foot.
- looks like one male grabbed something from another male’s pocket.
- caller says a male with a female saw this male with a gun shoot towards the intersection. (Amah testified that he recorded this information incorrectly. It should have read a caller saw a male and a female shoot through the intersection.)
- male, Hispanic, 6’ tall.
- male, black, mid 20’s - 26, 5’6”, slim, wearing light blue and white basketball shorts.
- description of a female, heavy set, long dark hair, almost same height as male black, wearing dark clothing, possibly capri pants.
[12] The two pairs of officers responded to the call. Both pairs proceeded toward the Blake/Boultbee area because it was known to them as a high crime area that could be easily accessed through side streets, back lanes and alleyways.
[13] En route, Officers Hardie and Bertin stopped and spoke to a pedestrian and a cyclist who were travelling northbound on Jones Avenue. Neither person had seen anyone running south on Jones Avenue.
[14] Officers Hardie and Bertin arrived in the area first, and parked on Strathcona Avenue across from a school. Officer Bertin testified that they parked at 11:04 p.m. At that time, he heard over the radio that the male suspect was with a white, heavy-set female. He did not know whether the female was involved in the shooting.
[15] Officers Amah and Zhou arrived soon after. They also parked near the school on Strathcona Avenue.
[16] Officer Hardie testified that at 11:06 p.m., she saw two people, holding hands, walking south through the school parking lot. Officers Hardie and Bertin testified that the individuals matched the descriptions broadcast over the radio. Officer Hardie noticed that the female had a black bag over her shoulder.
[17] Officer Hardie testified that she and Officer Bertin discussed the descriptions and agreed that they had grounds to arrest both people for attempted murder. Officer Bertin denied this conversation. He testified that he said, “Let’s investigate these two,” and then got out of the car to investigate to be sure that they were the two people they were looking for before arresting them. Officer Hardie testified that her grounds to arrest Ms. Wasylyk were formed at the conclusion of her discussion with Officer Bertin in the car. She agreed that the only information she had about the involvement of the female in the shooting was that she was in the company of the male suspect.
[18] Officer Amah also described seeing two people enter the school parking lot who matched the suspects’ descriptions. He got out of the police van and intended to arrest both people – the male for attempted murder and the female for accessory to attempted murder because she was with him. He testified that his bases for arresting the two people were that they matched the descriptions broadcast over the radio, the fairly quick pace at which they were walking, their proximity to the location of the shooting and the bag the female was carrying. In cross-examination, Officer Amah admitted that he had formed his grounds for arresting Ms. Wasylyk before he noticed that she was carrying a bag.
[19] Officers Hardie and Bertin and Officers Amah and Zhou approached the couple at approximately the same time.
[20] Officers Hardie and Amah approached the female, while Officers Bertin and Zhou approached the male. According to Officer Amah, he first tried to approach the male, but the male slipped from his grasp and he turned his attention to the female. According to Officer Hardie, the two individuals appeared startled and nervous when approached by the officers.
[21] Officer Hardie testified that she was concerned for officer safety and wanted to locate the firearm. She testified that when approached, the female was protective of the bag over her left shoulder, which led her to believe that the female was armed.
[22] Officer Amah testified that he asked the female what was in the bag. She replied, “No, you can’t have it,” and pulled away. He repeated his question and the female replied, “Nothing.” Officer Hardie testified that the female never responded to Officer Amah’s questions. Officer Amah grabbed the bottom of the bag and felt a heavy object. He ripped the bag off of her shoulder, opened it, and saw a firearm. He testified that he seized and searched the bag before he arrested Ms. Wasylyk and recited her rights to counsel because he believed, based on his experience, that the bag contained the firearm used in the shooting. Officer Amah testified that Officer Hardie then arrested the female.
[23] When Officers Bertin and Zhou approached the male, the male was argumentative and began to back away. Officer Bertin testified that his grounds for arresting the male crystallized at that point. When he put his hand on the male to arrest him, the male resisted. Officer Bertin called for Officer Amah to assist them, which he did. The struggle with the male lasted approximately 20 seconds.
General Comments on the Evidence
[24] I accept Mr. Smith’s submission that there were deficiencies in the evidence of Officers Amah and Hardie. Indeed, Mr. Brannagan acknowledged that the police evidence was not without its difficulty, particularly as it related to their notes.
[25] Officer Hardie, who had been a police officer for only a year at the time of these events, had difficulty recalling important details. Her notes, which were very brief but took her two days to complete, did not assist in refreshing her memory. She was unable to explain why it took her two days to complete four and one-half pages of notes.
[26] Officer Amah was impeached on when and with whom he made his notes. He also gave evidence that was inconsistent with his notes on significant points. Although he testified that he began making his notes in the police van, during cross-examination, he agreed that he did not start making his notes until after he returned to the police station, several hours after the events had occurred. He also testified in chief that he made his notes alone, but in cross-examination, agreed that he made his notes with the other officers involved in the events. He said that they compared times at which things happened. He also had a printout of the ICAD report when he made his notes. This report contained the text of the radio calls that had been broadcast that evening about the events. There was no on-board computer in the police van Officer Amah was in that night, so he did not see the text of the radio calls as they were broadcast.
[27] Finally, the evidence of Officers Amah, Bertin, and Hardie was inconsistent on important details.
[28] These concerns affect the reliability of Officer Amah’s and Officer Hardie’s evidence in general. For that reason, I have carefully scrutinized their evidence.
[29] It is difficult for officers, or anyone, to recall events that occurred two and a half years ago. And it is easy to recollect events in a manner that is influenced by later events. I have borne that in mind when considering the reliability of the officers’ evidence.
[30] Where the evidence of Officer Amah is inconsistent with that of Officers Hardie and Bertin on the times at which events occurred, I accept the evidence of Officers Hardie and Bertin. Their timeline of events between the call about the sound of gun shots at 10:56 p.m. and reporting that all was in order after the arrests and seizure of the firearm at 11:08 p.m. makes more sense than Officer Amah’s between 11:01 p.m. and 11:06 p.m.
[31] Officer Amah recorded the content of seven radio calls in his notebook. He testified that he relied on some of that information to form his grounds for arresting Ms. Wasylyk. For example, he testified that he had heard over the radio that one male was seen taking something from another male’s pocket. This supported his belief that the male suspect had given the firearm to a female. However, Officers Bertin and Hardie were listening to the same radio frequency. Officer Hardie said that she was listening very carefully. Neither of them heard any of the information Officer Amah recorded in his notebook other than the first description of the suspect and the description of the female. Officers Hardie and Bertin had an on-board computer in their police car that evening, which allowed them to read the text of the radio call in addition to hearing it. In contrast, Officer Amah did not have a computer in the police van.
[32] It is not possible that Officer Amah remembered the contents of all of the radio calls when he was preparing his notes hours after the events. However, the contents of the radio calls were transcribed on the ICAD report that Officer Amah had before him when he prepared his notes. I suspect that he has confused what he heard over the radio with what he read in the ICAD report, which is understandable. For this reason, I am unable to accept his evidence that he heard the radio calls outlined in sub-paragraphs 2 to 6 of paragraph 11 of these reasons.
Analysis
[33] Section 9 of the Charter protects individuals from unlawful state interference. It guarantees everyone the right not to be arbitrarily detained or imprisoned. A lawful arrest is not arbitrary within the meaning of s. 9 unless the law authorizing it is arbitrary itself: R. v. Mann, 2004 SCC 52, at para. 20.
[34] The Criminal Code authorizes a police officer to arrest without warrant a person whom the officer believes on reasonable grounds has committed an offence: s. 495(1)(a).
[35] The “reasonable grounds” element requires two things. The officer must subjectively believe that there are reasonable grounds for making the arrest. In addition, a reasonable person standing in the shoes of the officer must be able to conclude that there were reasonable grounds for the arrest: R. v. Storrey, [1990] 1 S.C.R. 241 at pp. 250 – 251.
[36] I find, as a fact, that Officers Amah and Hardie honestly believed that they had reasonable grounds to arrest Ms. Wasylyk for attempted murder or accessory to attempted murder. I did not understand Mr. Smith to contest that. The issue to be determined is whether their subjective belief was objectively reasonable. I have determined that it was.
[37] In coming to that conclusion, I have applied the following principles.
- The standard of reasonable grounds does not require proof of the commission of the offence alleged beyond a reasonable doubt or even on a balance of probabilities: R. v. MacKenzie, 2013 SCC 50, [2013] S.C.J. No. 50 at paras. 84 – 85; R. v. Jacobson, 2006 ONCA 411, [2006] O.J. No. 1527 (C.A.) at para. 22.
- Reasonable grounds require something more than reasonable suspicion. Reasonable suspicion is about the possibility of a crime. Reasonable grounds are about the probability of crime: R. v. Chehil, 2013 SCC 49 at paras. 27 – 28.
- In determining whether an arresting officer’s subjective belief was objectively reasonable, the court must consider all of the circumstances known to the officer, and consider that a trained police officer is entitled to draw inferences from circumstances based on experience and training: R. v. Bush, 2010 ONCA 554 at para. 61.
- Reasonable grounds to arrest can be based on circumstances that came to the attention of the officer after deciding to arrest a suspect, but before the arrest is made: R. v. Desbiens, [1996] J.Q. no. 4036 (Que. C.A.) This makes sense since the court must determine the validity of the arrest, “in relation to the circumstances which were apparent to the peace officer at the time the arrest was made:” R. v. Roberge, [1983] 1 S.C.R. 312 at p. 323.
[38] Applying these principles to the circumstances of this case, I have concluded that a reasonable person standing in the shoes of the officers would have concluded that there were reasonable grounds to arrest Ms. Wasylyk for the following reasons.
[39] First, Mr. Green and Ms. Wasylyk were similar to the descriptions that had been broadcast following the shooting. The points of similarity and differences are the following. Mr. Green is a black male. Ms. Wasylyk is a heavy-set white female with brown hair, although her hair was tied up in the back. They were walking together. They were the same height. However, they were not 5’10” or 5’11” as described, but were approximately 5’6”. In addition, Mr. Green was wearing a grey, not white, t-shirt and Ms. Wasylyk was wearing long dark shorts, not capris. Finally, she (and not Mr. Green) was carrying a black bag.
[40] Second, they were walking southbound from Danforth, just west of Jones, which is the direction the suspect was last seen heading.
[41] Third, officers saw them very shortly after the shooting. Ms. Wasylyk and Mr. Green were observed by the officers only ten minutes after the radio call reporting the sound of gun shots, and seven minutes after the radio call reporting that the suspect was southbound on Jones from Danforth.
[42] Fourth, they were seen only 350 metres from the site of the shooting. The officers were cross-examined extensively on their grounds for believing that Ms. Wasylyk was even at the scene of the shooting. It was reasonable for the officers to infer that she was there given the very short amount of time that had elapsed between the radio call describing the suspect and the call describing the female, and in light of the temporal and geographic proximity of her location to the shooting scene when the officers saw her.
[43] Fifth, Officers Amah, Bertin and Hardie testified that they knew from their experience as police officers in 55 Division that the Blake Street/Boultbee Avenue area was a neighbourhood experiencing a great deal of violence and gang activity. They knew that there were many lanes and alleyways leading south from Danforth that allowed an individual to retreat to the area without travelling on the main streets. This was the reason that both sets of officers, independent of each other, set up on Strathcona Avenue to look for the suspect in the shooting. Officer Amah testified that he was aware of numerous cases in which crimes were committed on Danforth Avenue and the perpetrator had escaped through the back laneways into the Blake/Boultbee area.
[44] Sixth, Officer Amah testified that he formed his grounds to arrest Ms. Wasylyk before he saw that she was carrying a black bag. However, once he saw the bag on her shoulder, he believed it contained the firearm. He based this belief on his experience of carrying his own firearm. Officer Amah did not think that Mr. Green could be concealing the gun in his basketball shorts, particularly given the quick pace at which he was walking. He admitted that it was possible that Mr. Green had discarded the gun. In his experience, however, it was not uncommon for police to discover when investigating a man and a woman that the woman is carrying the gun for the man because people think that police are less likely to search women. His belief was strengthened when he saw that the bag Ms. Wasylyk was carrying was similar to the type that he carried his own firearm in when working undercover. It was a satchel-type bag that could be slung on one’s shoulder allowing easy access to its contents.
[45] Seventh, “the fact that an experienced constable has an 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. In this case, two sets of officers got out of their vehicles at approximately the same time, believing that Ms. Wasylyk and Mr. Green were the suspects in the shooting. This, too, is some evidence that their subjective beliefs were objectively reasonable.
[46] Finally, I have considered the entire context within which the officers had to make a decision. A shooting had occurred just moments before. The shooter had not been apprehended. The firearm used had not been recovered. Justice Doherty’s words are worth recalling in this situation:
Often, the officer’s decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete: R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.) at p. 750, leave to appeal to S.C.C. refused May 4, 1998.
[47] As I have found that Ms. Wasylyk’s arrest was lawful, the seizure and search of the bag containing the firearm was also lawful as a search incident to arrest. Although Officer Amah seized the bag prior to Ms. Wasylyk’s arrest, I have already found that Officer Amah had reasonable grounds to arrest her when he seized and searched the bag. The seizure and search of the bag, therefore, did not violate s. 8 of the Charter: see R. v. Debot (1986), 30 C.C.C. (3d) 207 (Ont. C.A.) at p. 223, aff'd on other grounds, R. v. Debot, [1989] 2 S.C.R. 1140; R. v. Polashek (1999), 45 O.R. (3d) 434 (Ont. C.A.) at p. 443.
Conclusion on Sections 8 and 9
[48] For the reasons I have outlined, I find that the officers’ subjective beliefs that they had reasonable grounds to arrest Ms. Wasylyk were objectively reasonable. Her arrest was lawful, and was therefore not arbitrary. The seizure and search of the bag was incident to a lawful arrest. Ms. Wasylyk’s rights protected by ss. 8 and 9 of the Charter were not breached.
Breaches of Section 10
[49] Mr. Smith submits that Ms. Wasylyk’s rights guaranteed by ss. 10(a) and 10(b) were violated that night. Mr. Smith argues that Ms. Wasylyk was not informed promptly of the reason for her arrest contrary to s. 10(a) of the Charter. He also argues that she was not informed upon arrest of her right to counsel nor was she permitted to contact counsel “without delay” contrary to s. 10(b) of the Charter.
Summary of the Evidence
[50] Officers Amah and Hardie testified that they intended to arrest Ms. Wasylyk when they approached her at approximately 11:07 p.m. Officer Hardie was going to arrest her for attempted murder. Officer Amah was going to arrest her for accessory to attempted murder.
[51] Neither officer told Ms. Wasylyk that she was under arrest or in investigative detention until after Officer Amah had seized the bag and discovered the firearm. At that point, which was approximately 11:08 p.m., Officer Hardie testified that she arrested Ms. Wasylyk for possession of a firearm, and handcuffed her. Neither Officer Hardie nor Amah read Ms. Wasylyk her rights to counsel at that time. Officer Amah quickly became engaged with Mr. Green, who was resisting arrest, and Officer Hardie testified that it was not a safe opportunity to read Ms. Wasylyk her rights to counsel because of the chaos being caused by Mr. Green.
[52] Officer Park arrived at the scene at 11:10 p.m. He spoke to Officer Hardie and then took custody of Ms. Wasylyk. Despite his conversation with Officer Hardie, he had not been told that Ms. Wasylyk had been arrested. He knew that she was in the physical control of a police officer, that there had been a shooting, and that a firearm had been recovered.
[53] The chronology of events at the scene, according to the evidence of Officers Park and Bertin, is as follows:
11:10 Officer Park arrests Ms. Wasylyk for assault with a weapon involving a firearm. He recites her rights to counsel and cautions her. She replies that she understands and that she wishes to speak to her mother and duty counsel. Officer Park informs her that she can use the phone when he can give her privacy. 11:11 Officer Park repeats the rights to counsel and caution to Ms. Wasylyk when she is placed in the police car while the in-car camera is recording. She again indicates that she wishes to speak to duty counsel. Officer Park tells her that once she is booked into the police station, she will be allowed to have reasonable use of the telephone.
[54] After Ms. Wasylyk was placed in the police car, the chronology of events is as follows:
11:25 Ms. Wasylyk arrives at 55 Division. 11:33 Ms. Wasylyk is paraded before the booking officer. 11:37 Ms. Wasylyk is searched. 11:40 The search is completed and Ms. Wasylyk is placed in a room where access to counsel can be facilitated. 12:25 Officer Bertin receives authorization to conduct a gunshot residue (GSR) test on Mr. Green and Ms. Wasylyk. 12:27 Ms. Wasylyk is returned to the booking area where her clothing is seized and her hands are bagged in preparation for the GSR test. [1] 12:34 Ms. Wasylyk is escorted to a room where access to counsel can be facilitated. 12:49 Officer Bertin begins the GSR test on Ms. Wasylyk. 1:10 Officer Bertin completes the GSR test. 2:00 Officer Park calls Ms. Wasylyk’s mother and permits her to speak to her. 2:04 Officer Sunega calls duty counsel.
[55] Officer Park did not tell Ms. Wasylyk what charges she was facing before she spoke to duty counsel. Officer Park testified that he never learned what charges Ms. Wasylyk was facing.
[56] Officer Park testified that he was responsible as the arresting officer to facilitate Ms. Wasylyk’s access to counsel. He testified that he made his best efforts to do so.
[57] From 11:40 p.m. to 12:34 a.m., Ms. Wasylyk was in a room where she could have accessed counsel. Officer Park testified that he did not facilitate access to counsel for Ms. Wasylyk during this time because he did not know the charges Ms. Wasylyk was facing and that would be the first question duty counsel would ask him. He further testified that he completed other tasks in relation to the investigation during this time. He caught up on his notes with his partner, he spoke to investigators to try to determine what charges Ms. Wasylyk was facing, he moved the police car from the sallyport, and he had to fire up the work station where calls to counsel are logged. These are not satisfactory explanations for failing to give Ms. Wasylyk access to counsel.
[58] Officer Park could not explain why he had not called duty counsel once the GSR test was completed at 1:10 a.m., other than that he had not been informed that the test had been completed.
[59] Mr. Brannagan concedes a breach of the implementational component of s. 10(b) between 1:10 a.m. and 2:04 a.m.
Analysis
[60] Sections 10(a) and 10(b) of the Charter guarantee that everyone on arrest or detention has the right “to be informed promptly of the reasons therefor” and “to retain and instruct counsel without delay and to be informed of that right.”
[61] The two sections are closely linked. Section 10(a) requires the police to explain to the arrested individual, in clear and simple language, the reason for the arrest. Although precise and technical language is not required, the arrested individual must understand the reason for the arrest and the extent of their jeopardy to permit them to exercise their right to counsel in a meaningful way: R. v. Evans, [1991] 1 S.C.R. 869 at para. 30; R. v. Roberts, 2018 ONCA 411 at para. 78.
[62] The word “promptly” in s. 10(a) and the phrase “without delay” in s. 10(b) have been interpreted as meaning “immediately,” subject to the limited exception permitting some delay based on concerns for officer or public safety: R. v. Gonzales, 2017 ONCA 543 at para. 123.
[63] Officer Hardie testified that she arrested Ms. Wasylyk for possession of a firearm as soon as Officer Amah discovered the firearm. This evidence is contradicted by Officer Park, who testified that Ms. Wasylyk had not been arrested when he arrived at the scene but was in custody.
[64] Upon arriving, Officer Park spoke to Officer Hardie, and took over custody of Ms. Wasylyk, at which point he arrested her for assault with a weapon involving a firearm. Had Officer Hardie already arrested Ms. Wasylyk for possession of a firearm, it would have been unnecessary for Officer Park to arrest her for assault with a weapon involving a firearm and to repeat that when Ms. Wasylyk was placed in the cruiser and the in-car camera was recording. Officer Hardie testified that she heard Officer Park give Ms. Wasylyk her right to counsel and caution her. If she had already arrested Ms. Wasylyk for possession of a firearm, she would have corrected Officer Park when he told Ms. Wasylyk that she was under arrest for assault with a weapon involving a firearm.
[65] I find that Ms. Wasylyk was not informed that she was under arrest until Officer Park did so, shortly after 11:10 p.m. She was therefore not promptly advised of the reason for her arrest and her right guaranteed by s. 10(a) was violated.
[66] Officer Park did not use precise language when he informed Ms. Wasylyk that she was under arrest for assault with a weapon involving a firearm. He was not obliged to.
[67] In all of the circumstances of this case, including the fact that mere moments earlier Officer Amah had discovered a firearm in a bag that Ms. Wasylyk was carrying on her shoulder, I am satisfied that Officer Park gave Ms. Wasylyk sufficient information to understand why she was being arrested to permit her to meaningfully exercise her right to counsel.
[68] I turn now to Ms. Wasylyk’s right to counsel guaranteed by s. 10(b).
[69] It is well-settled law that s. 10(b) imposes upon police both informational and implementational duties. Specifically, police have the following duties upon arresting or detaining an individual:
- to inform the detainee of the right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;
- if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and
- to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger): R. v. Bartle, [1994] 3 S.C.R. 173 at para. 18.
[70] Officer Hardie admitted that she did not inform Ms. Wasylyk of her right to counsel after she had taken custody of her. She testified that it was not a safe opportunity to do so because Mr. Green was resisting arrest and three officers were trying to restrain him. The scene was chaotic.
[71] Mr. Smith pointed out that Officer Bertin testified that the struggle with Mr. Green lasted only 15 to 20 seconds. The scene would have therefore been under control within seconds of Ms. Wasylyk being in custody.
[72] I am not persuaded that the timing of the struggle with Mr. Green and the detention of Ms. Wasylyk was as synchronized as Mr. Smith submits. Officer Bertin testified that he called out for Officer Amah to assist him to arrest Mr. Green. Officer Amah did so. This was after he had seized the bag from Ms. Wasylyk, and discovered the firearm. I am satisfied that it was reasonable during that very brief time while Mr. Green was being arrested, that Officer Hardie did not read Ms. Wasylyk her rights to counsel.
[73] However, once Mr. Green was arrested which, on Officer Bertin’s evidence, was shortly after 11:06 p.m., there was no longer any reason based on officer or public safety not to advise Ms. Wasylyk of her rights to counsel. Officer Hardie’s failure to do that at that time was a violation of Ms. Wasylyk’s rights.
[74] A more significant breach of Ms. Wasylyk’s rights to counsel occurred after she was informed of them by Officer Park. At issue is whether the officer’s implementational duties were properly executed. I find that they were not.
[75] The duty to facilitate access to counsel arises immediately upon the request to do so by the arrested individual. The arresting officer must facilitate access to counsel at the “first reasonably available opportunity.” The Crown must demonstrate that any delay is reasonable in the circumstances of the case: R. v. Taylor, 2014 SCC 50 at para. 24.
[76] Justice Doherty in R. v. Rover, 2018 ONCA 745 at para. 33 noted that the justification for a delay in facilitating access to counsel “may be premised on the risk of the destruction of evidence, public safety, police safety, or some other urgent or dangerous circumstance.” However, even where these circumstances exist, police officers must take reasonable steps to minimize the delay in facilitating access to counsel: Rover at para. 27.
[77] No satisfactory explanation was offered for the failure to facilitate Ms. Wasylyk’s access to counsel between 11:40 p.m. when she was placed in an interview room and 12:25 a.m. when Officer Bertin was authorized to conduct a GSR test on her hands. There is no evidence that Officer Park knew before 12:25 a.m. that a GSR test was going to be conducted. Ms. Wasylyk’s hands were not bagged during that time. Officer Park’s explanations for failing to contact duty counsel after Ms. Wasylyk had indicated that she wanted to do so at 11:11 p.m. did not justify the delay. There were no safety concerns for the police, public or Ms. Wasylyk. Ms. Wasylyk had no medical concerns. A telephone and privacy were available to Ms. Wasylyk. As I already indicated, Officer Park did not know that a GSR test would be conducted, so there was no risk of the destruction of evidence.
[78] During this 45-minute period, Ms. Wasylyk was not told why she was not permitted to speak to counsel.
[79] As Mr. Brannagan concedes, there is no satisfactory explanation for the failure of police to facilitate access to duty counsel after the GSR test was concluded at 1:10 a.m. and 2:04 a.m. when duty counsel was called. Again, during this 56-minute time period, Ms. Wasylyk was not told why she was not permitted to speak to counsel.
[80] Having found that Ms. Wasylyk’s right to counsel was violated in the periods before and after the GSR test, I turn to consider whether the delay occasioned by the GSR test was reasonable.
[81] Mr. Brannagan submits that completing a GSR test on Ms. Wasylyk was an important and reasonable investigative step for the police to take, and the 45-minute delay it occasioned was reasonable. I do not accept this submission.
[82] Mr. Smith argues that the delay between 12:27 a.m. and 1:10 a.m. was significant and unnecessary because the gunshot residue test on Ms. Wasylyk should not have been ordered or even requested.
[83] Officer Bertin testified that he knew that the Centre for Forensic Sciences (“CFS”) had a policy of not analyzing GSR tests conducted on anyone who was not alleged to be the person who shot the firearm. He testified, however, that he also knew that exceptions were sometimes made, so he thought it would be prudent to conduct the test while he could. As it turned out, CFS did not analyze the test.
[84] Officer Bertin explained the importance of preventing the disturbance of any gunshot residue on an individual’s hands prior to a GSR test. To accomplish this, paper bags are placed on the individual’s hands, and the individual is handcuffed to the rear prior to the test.
[85] These important steps were not taken in this case. Ms. Wasylyk had been in police custody for one hour and 15 minutes before her hands were bagged. Neither Officer Bertin nor Park could say whether she had been handcuffed to the rear while seated in the interview room.
[86] Officer Bertin did not know whether Ms. Wasylyk had been given access to counsel before he conducted the test. He made no enquiries about that. He did not turn his mind to the specifics of Ms. Wasylyk’s circumstances as he is required to do, before deciding to conduct the GSR test on the off chance that CFS would analyze it, which further delayed Ms. Wasylyk’s access to counsel: see Rover at para. 27. In my view, the GSR test was not a reasonable justification for further delaying Ms. Wasylyk’s access to counsel.
[87] Leaving aside the 45 minutes during which Ms. Wasylyk’s hands were bagged and the GSR test was completed, Ms. Wasylyk was denied her right to consult counsel for more than an hour and a half, or 101 minutes to be precise, for no justifiable reason. If I am correct that the 45 minutes it took to conduct the GSR test was not a justifiable reason for delaying access to counsel, Ms. Wasylyk was denied her right to retain and instruct counsel for more than two and one-half hours. In either case, her right to retain and instruct counsel without delay was violated.
Conclusion on Section 10
[88] For the reasons I have outlined, I find that the officers breached Ms. Wasylyk’s ss. 10(a) and 10(b) rights. Although Ms. Wasylyk received sufficient information to understand why she was being arrested to permit her to meaningfully exercise her right to counsel, she was not informed that she was under arrest until Officer Park did so shortly after 11:10 p.m. This was not prompt and therefore violated her s. 10(a) right. In addition, Ms. Wasylyk was denied her right to consult counsel for more than an hour and a half, at minimum, or more than two and a half hours, at most. Either way, this delay was not justified, and her s. 10(b) right was therefore violated.
Section 24(2) Analysis
[89] Having found a violation of Ms. Wasylyk’s ss. 10(a) and 10(b) Charter rights, I must now determine whether the firearm should be excluded from evidence. The burden of proof is on Ms. Wasylyk to establish, on a balance of probabilities, that the admission of the firearm would bring the administration of justice into disrepute: See R. v. Fearon, 2014 SCC 77 at para. 89.
[90] The breaches of Ms. Wasylyk’s ss. 10(a) and 10(b) rights occurred after the discovery of the firearm. However, applying a generous approach to the words “obtained in a manner,” I find that there was a sufficient connection to engage s. 24(2). The breaches and the discovery of the firearm occurred close in time and are part of the course of conduct engaged in by the police arising from the arrest of Ms. Wasylyk: see R. v. Pino, 2016 ONCA 389.
[91] To determine whether evidence should be excluded, the following factors must be considered:
- The seriousness of the Charter-infringing conduct;
- The impact of the breach on the Charter-protected interests of the accused; and
- Society’s interest in the adjudication of the matter on its merits: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71
[92] These factors must be balanced to determine whether the admission of the evidence would bring the administration of justice into disrepute.
Seriousness of the Conduct
[93] The officers in this case violated long-established rules by failing to inform Ms. Wasylyk promptly of the reasons for her arrest and failing to facilitate access to counsel without delay. The vast majority of the delay in facilitating access to counsel is unexplained. The police officers demonstrated a careless and casual attitude toward Ms. Wasylyk’s constitutional rights.
[94] Although the breaches were not the result of systemic or institutional practices, as in Rover, the violation of Ms. Wasylyk’s right to be informed promptly of the reason for her arrest and her right to consult with counsel without unreasonable delay was serious. As Justice Laskin noted when commenting on the plight of a detained woman who had been denied access to counsel, she was “vulnerable and she needed counsel, not just for legal advice, but as a lifeline to the outside world:” Pino, at para. 105.
[95] This first factor of the s. 24(2) analysis favours exclusion of the evidence.
Impact of the Breach
[96] On the one hand, the impact of the breach on Ms. Wasylyk’s Charter-protected interests was significant. She was kept in custody for more than an hour and a half, at minimum, or more than two and one-half hours, at most, without access to counsel and without being told why she was not given access. However, the delay in informing her of the reason for her arrest and of her right to counsel was slight, approximately two minutes.
[97] On the other hand, there is no causal connection between the breach of Ms. Wasylyk’s rights and the discovery of the firearm. This mitigates, to some degree, the impact of the breach: R. v. Tennant, 2018 ONCA 264 at paras. 5 – 6; R. v. Williams, 2018 ONSC 3654 at para. 273.
[98] In addition, the police made no effort to interview Ms. Wasylyk to obtain inculpatory statements from her following the violation of her rights. No physical evidence was seized from her as a result of the violations. Finally, the Crown does not rely on anything she said or did while in detention to further its prosecution.
[99] On balance, this factor weighs in favour of admission.
Society’s Interest in the Adjudication of the Matter on the Merits
[100] This factor engages the truth-seeking function of the trial. Would it be better served by the admission of the firearm, or its exclusion? The court must consider the reliability of the evidence, and its importance to the Crown’s case.
[101] The seized firearm is reliable real evidence that is essential to the proof of the Crown’s case.
[102] Although rigorous constitutional standards must be applied to all evidence, including illegal firearms, it is impossible to ignore the public interest in the prosecution of firearm offences on the merits. The residents of Toronto are concerned about the gun violence in the city and its deadly consequences.
[103] This factor weighs in favour of admission.
Balancing the Factors
[104] There is no governing rule about how the factors should be balanced. It is not based on a mathematical formula. Each case must be assessed on its own facts.
[105] I have concluded that the police conduct in this case was careless. Insufficient effort was made to ensure that Ms. Wasylyk was provided access to counsel. However, the firearm is a reliable piece of evidence that is critical to the prosecution and society has a strong interest in the adjudication of this trial on its merits.
[106] Balancing all of the factors therefore leads me to conclude that admitting the evidence of the firearm would not bring the administration of justice into disrepute.
[107] The evidence of the firearm is admissible.
Conclusion
[108] In summary, I have found that Ms. Wasylyk’s rights guaranteed by ss. 8 and 9 of the Charter were not breached. Her rights guaranteed by ss. 10(a) and 10(b) were breached.
[109] Notwithstanding the breaches, after weighing and balancing all of the relevant factors, I have concluded that the admission of the evidence of the firearm is admissible.
Corrick J. Released: April 26, 2019
[1] Officer Park was unable to say when he was detailed to seize Ms. Wasylyk’s clothing and bag her hands. I find that it was not prior to 12:25 a.m. when Officer Bertin received authorization to conduct the GSR test.