COURT FILE NO.: CR 18-086 DATE: 2019/01/04

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN C. Gzik, for the Crown Respondent

- and -

JEREMY McDERMOTT M. Webster, for the Applicant Applicant

HEARD: December 19 & 20, 2018

PRETRIAL RULINGS – APPLICATION WITH RESPECT TO SS. 10(b) & 24(2) OF THE CHARTER OF RIGHTS AND FREEDOMS

A. J. GOODMAN J.:

[1] The applicant, Jeremy McDermott (“McDermott”) is charged with one count of robbery along with two other weapons related charges, contrary to their respective provisions in the Criminal Code. All of these offences are alleged to have occurred on August 11, 2017 in the City of Hamilton.

[2] The applicant seeks an order to exclude certain evidence seized by the police at the time of his arrest, with an order that his informal utterances provided to police upon his detention, along with his formal statement on August 12, 2017 were in violation of s. 10(b) of the Charter and, therefore, should be excluded pursuant to s. 24(2) of the Charter.

[3] Initially, the applicant brought an application alleging both s. 7, and s. 8 Charter breaches. This was all but abandoned during argument. The applicant concedes that he was justifiably searched incident to a lawful detention.

[4] A single voir dire was held with respect to all issues. The Crown called two police officers. The applicant did not testify and no affidavit was filed in support of his Charter applications.

Background:

[5] The facts are taken from the facta filed in this application and primarily from the viva voce evidence from the two officers who testified in this hearing.

[6] On August 11, 2017 at 8:30 p.m. a civilian witness called 911 to report a robbery in progress at Imperial Variety store.

[7] Two of the males, allegedly Daniel Fitzgerald, and a youth, entered the store. The other two males, the applicant and his brother remained outside. The first two males exited the store without buying anything. They met Jeremy and his brother who were standing at the corner of Robert Street and Wellington Street North. The four males walked away from the corner. It is alleged that ten minutes later, Fitzgerald and the youth went back into the store. Fitzgerald pulled out a large knife and started yelling “Give me the money” to the store keeper. As Fitzgerald approached him, he was sprayed with pepper spray by the store keeper and Fitzgerald retreated. He approached again, and he was sprayed again. Fitzgerald and the youth then left the variety store.

[8] Carl Strickland witnessed this incident from 207 Wellington Street, North and called the police. He saw two men come out of the store and two men outside of the store, “watching out." During that call he identified four people, two who went into the store and two who were waiting. One of the suspects was wearing a red hoodie.

[9] Constable Andrew Poustie (“Poustie”) responded to the call and one minute later, at 8:39 p.m., was advised that all four males have fled the scene on foot. Citizens direct him to an alleyway where he saw four males running southbound through the alley. The officer caught up to the four males, who matched the general descriptions. He directed them to stop. They all complied.

[10] At 8:42 p.m. Poustie placed all four males under investigative detention for robbery and advised them as a group of their s. 10(a) and 10(b) Charter rights. The officer was on his own dealing with the four persons awaiting backup.

[11] Just prior to being searched, one of the detainees, McDermott volunteered that he had bear mace in his possession. Poustie handcuffed him and conducted a search. A full can of bear spray was located in his front red hoodie pocket. Poustie located a large knife down the right side of McDermott's pants. He also found a large serrated knife in a bag that McDermott was wearing.

[12] At 9:00 p.m., Poustie arrested the applicant for robbery. He read the applicant his s. 10(b) Charter rights to counsel (“RTC”) from the card in the front of his notebook, this time asking him if he understood, to which the applicant said "yes," and then asking him, "Do you wish to call a lawyer now?" to which McDermott indicated he understood and wished to speak to a lawyer. However, McDermott then said "I want to go on record that those knives are carried for my protection, my brother got robbed". The officer cautioned him and advised he could be charged for carrying weapons. McDermott then stated "Yeah I know, I still want it on record that I carry those for my protection."

[13] At 9:32 p.m., McDermott was transported from the scene to Hamilton Police Service Central Station, arriving at 9:34 pm. Other detained persons were waiting to be processed, forcing McDermott and Poustie to wait.

[14] At 10:53 p.m., McDermott was placed into the cell at the station. Poustie left a message for duty counsel on behalf of the applicant. Duty counsel did call back, at some point, and spoke to the applicant at 11:25 p.m.

[15] At 1:57 a.m., approximately five hours after McDermott had been taken into police custody, he was formally interviewed by Officer Kevin Jones (“Jones”). The videotaped interview continued until 2:24 a.m. McDermott advised the officer that he had spoken to duty counsel and was satisfied.

Position of the Parties:

[16] Mr. Webster, on behalf of the applicant, submits his client was detained and a delay in the implementation of RTC was a fundamental breach of his client’s Charter rights.

[17] The applicant says that at the time of the initial detention the officer did not ask him if he wanted to contact counsel, nor did he offer him an opportunity to contact counsel. The detainees were not told that until they had had made a decision as to whether they wanted to speak to counsel.

[18] The applicant argues that the wording used by Poustie: "You are not obliged to say anything unless you wish to do so," is itself misleading, because the provision of an option to then speak focuses the arrestee's attention on a choice he has, but not on the rights and realities which should be considered before making such a choice.

[19] The applicant says that Poustie further breached this rights by not informing him that he had a right to remain silent, given that at that point it may have been difficult to allow him to actually contact counsel, because at that time he alone was detaining four individuals. However that changed once other officers arrived to render assistance. He told the applicant he could speak to counsel once they were back at the police station, because that is his practice.

[20] The applicant submits that the delay of two hours and 40 minutes or so between the initial detention by the police and his formal arrest and eventual contact with duty counsel was a violation of his s. 10(b) rights. While some RTC was read to him during this interval, the police did not fulfill their obligations to place McDermott with counsel. The applicant adds that in the circumstances of this case, the conduct of the police justifies exclusion of all of the evidence and his statements and utterances to the police.

[21] In response, the Crown submits that there was no violation of the applicant’s s. 10(b) Charter rights. The applicant was provided with the informational and implementation components of his rights as required under s. 10(b). The police held off all questioning until the applicant was placed in contact with duty counsel. The applicant advised the officer that he was satisfied that he had spoken with counsel. If there is a breach of his s. 10(b) rights the Crown submits that the evidence ought to be properly admitted under s. 24(2) of the Charter.

Section 10(b) of the Charter:

[22] Section 10(b) reads as follows:

Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.

[23] Once engaged, s. 10(b) imposes both an informational and implementational duty on the police. The informational duty requires that the detainee be informed of the 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. This obligation also requires the police to refrain from eliciting incriminating evidence from the detained person until he or she has exercised RTC and has been provided with a reasonable opportunity to reach a lawyer or has unequivocally waived his or her rights.

Section 10 of the Charter - Principles Applied to this Case:

[24] Poustie testified that before receiving unsolicited responses from McDermott, he had advised the applicant about his RTC in his own fashion without reference to the formal script. Poustie had four persons under detention in what was a rapidly evolving situation. Poustie added that he re-read the standard RTC from his notebook to McDermott after their arrival at the police station and before being paraded in front of the booking sergeant.

[25] Even if there was a “detention” of the entire group of individuals between 8:42 and 9:00 p.m., albeit not fleeting, it was of limited duration. During this interval there was no interrogation, focused questioning, or statements conscripted from the applicant. This was an ongoing investigation with the necessity for public and officer safety. A search was conducted after an admission of a potential weapon. One officer with four detainees.

[26] One fundamental purpose of the RTC is to make it possible for counsel to inform a detainee of his right to remain silent. As mentioned, I do not find any breach for the applicant’s suggestion that he was not provided with the informational component of his rights in a meaningful manner to bring it into alignment with constitutional standards. There is no evidence to sustain this assertion. I accept that McDermott was properly informed at the scene both informally and subsequently with the formal reading of his rights and caution and the applicant clearly understood his rights.

[27] As mentioned, the focus of the application is the approximate two hour and 40 minute delay from the time of his arrest to the time he was afforded the opportunity to speak with counsel. The applicant argues that this was not in conformance with the “without delay” requirement or immediacy requirement pursuant to s. 10(b) of the Charter. Further, the applicant argues that the officer should have provided him with a phone at the scene to speak with counsel without delay. Mr. Webster argues that there was a systemic practice or policy in the delay of implementing his client’s s. 10(b) rights.

[28] The Crown concedes that there was a delay in having the applicant put into contact with duty counsel. Nevertheless, no statement or conscripted evidence was obtained from the applicant during this interval and the police held off as mandated by the jurisprudence.

[29] Before dealing with the principal issue, I turn to Mr. Webster’s submission that the police delaying in taking a statement from the applicant for over five hours after his arrest violated the Charter. I dismissed that argument during submissions. Generally speaking, there is no prohibition against the police for the timing or scheduling of when to interview or take a formal statement from a suspect; after having been afforded the full opportunity to speak with counsel. In this case, there is no issue of voluntariness.

[30] Another point raised by Mr. Webster was the availability of the officer’s personal cell phone or a police cell phone at the scene in order to contact counsel immediately and without any delay in compliance with s. 10(b).

[31] Poustie testified that he was unable to provide McDermott with a phone at the roadside to make a call to counsel. Further, he could not facilitate privacy. He testified that "if I hand someone a phone they can phone anyone. It's more of a controlled environment both for my safety, other officer's safety. Like, because I can't just leave them alone in the car, sorry with a phone. I have to - we still have to have a certain level of ability to maintain sort of control of the situation, for lack of a better word”.

[32] Poustie testified that he understood the s. 10(b) right to contact a lawyer immediately mean as soon as practicable or as soon as possible. He added that "as officers on the road we don't have access to a phone someone can use." And "I cannot provide a - a private place to speak with a lawyer." Poustie acknowledged that he provided the applicant an opportunity to call a lawyer back at the station as that was his practice or training with the police service.

[33] I accept Poustie’s evidence for a variety of logical reasons. He was not going to provide his own personal cell phone for use by a person in custody for potential damage or destruction. I accept that the officer would have no idea who was being called on his phone and there would be negligible control over the device. Further, as the officer is tasked with the overall responsibility and duty to maintain control and ensure the safety of his prisoner, I accept that it is next to impractical to afford adequate privacy to the detained person in the police cruiser while accomplishing these duties.

[34] In submissions, counsel cited the case of R. v. Middleton, [2018] O.J. No. 2956 (C.J.) to support his argument that the police have an obligation to provide a cell phone to the detainee if one is available, in order to implement s. 10(b) rights. With respect, counsel misreads the conclusion in that case.

[35] While there is a duty on the police to facilitate s. 10(b) Charter rights at the first reasonable opportunity, there is no obligation in law on the police to furnish an officer’s personal or service issued cell phone to an accused at the scene of the arrest to conform to the implementation requirements.

[36] In Middleton, Parry J. discussed accessing the accused’s own cell phone in order to obtain a contact number for counsel of choice. The judge found that the police steered the offender to duty counsel. The trial judge opined that the police had acted maliciously refusing to allow the offender to facilitate counsel of choice. At paras. 61 and 62, the trial judge stated:

In facilitating the accused's right, the police are obliged to allow an accused person to access secondary sources for the purpose of contacting counsel; for example, access to phone books, address lists in cell phones, or access to third parties who can provide a lawyer's name and contact information. [See for example, R. v. Maciel, 2016 ONCJ 563; R. v. Sakharevych, [2017] O.J. No. 5209].

In the case at bar, the accused specifically asked for access to his phone. He specifically asked to do so for the purpose of accessing his contact list. He asked for his phone twice. He was ignored. I find that Mr. Middleton was reasonably diligent in asserting his right to counsel. I find that his acquiescence after being ignored was a reasonable response, given his lack of experience in the criminal justice system. In contrast, I find that Constable Maclean did not facilitate Mr. Middleton's access to his counsel of choice. He ignored the request for the phone and he ignored the reason given for that request. I doubt he did so out of malice. Rather, as I have already noted, he appears to have been bureaucratically indifferent to the animating principles of Mr. Middleton's right to counsel as he went through the motions of processing a routine Over 80 investigation.

[37] As the applicant points out, from the time of his detention, he was held in his cell, for more than two hours, until he was able to speak to duty counsel. Counsel argues that this delay further breached the applicant's right to retain and instruct counsel without delay in accordance with the case law.

[38] The Supreme Court of Canada held that rights to counsel must be provided immediately upon detention: R. v. Suberu, at paras. 40 and 42.

As with "detention", any interpretation of the phrase "without delay" must be consistent with a purposive understanding of the Charter provision in which it occurs. As this Court noted in R. v. Therens, [1985] 1 S.C.R. 613, at pp. 641-42, and in R. v. Bartle, [1994] 3 S.C.R. 173, the purpose of s. 10(b) is to ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.

… In our view the words “without delay” mean “immediately” for the purpose of s.10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified by 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.

[39] It is clear that the Supreme Court in Suberu at para. 38, dealt with the issue by addressing an offender’s rights against involuntary self-incrimination and the correlative obligations upon the police in providing s. 10 Charter rights.

[40] On this point, counsel cites various cases, which are distinguishable. For example, in R. v. McGuffie, 2016 ONCA 365, [2016] O.J. No. 2504 (C.A.) the issue was that the rights created by s. 10(b) attach immediately upon detention subject to legitimate concerns for officer or public safety. Unlike the case at bar, in McGuffie, after detention and being placed in the police cruiser, the officer did not inform the offender that he had a right to speak to his lawyer. There was also a finding that the second search of the appellant was unreasonable.

[41] In any event, I note that with many of the cases provided by the applicant, the courts dealt with the issue of unlawful detention along with the informational component or delay in providing s. 10(b) rights.

[42] Section 10(b) imposes both informational and implementational duties on the police. The informational duty requires that the detainee be informed of the right to retain and instruct counsel without delay. The implementational obligation imposed on the police requires them to provide the detainee with a reasonable opportunity to retain and instruct counsel. This obligation also requires the police to 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: Suberu, at para. 38:

[43] While there is some flexibility in providing RTC upon arrest in certain specific or exigent circumstances, an accused is entitled to the informational component of s. 10(b) and to be advised of the availability of legal advice, including the toll-free legal aid lawyer. Absent evidence of a waiver, the police are to hold off questioning of the accused, as was done in this case: R. v. Bartle, [1994] S.C.J. No. 74.

[44] I find that there was no s. 10(b) violation at the scene of the applicant’s arrest. There is no evidence to suggest that McDermott’s understanding of his RTC was infringed. The Crown has established a sufficient record of the interaction between the applicant and Poustie and has demonstrated that there was no unfairness to the applicant during the course of their interaction.

[45] Clearly, any judicious review of the implementation of RTC is not considered in a vacuum. Common sense and practical realities must prevail. At the scene, I am satisfied that the police had valid officer and public safety concerns and needed to address those issues. This was a rapidly evolving event with potentially serious ramifications; a robbery with weapons, four persons detained and an officer who required backup. After the scene was secure and all suspects in control of the police; having been advised of their RTC, the practice of transporting suspects and affording privacy at the police station in order to facilitate speaking with counsel is entirely reasonable.

[46] However, in this case, the interval of processing the applicant at the police station was due to the sheer volume of accused persons being transported and lodged in the queue that evening. Further, and more significantly, there is a limited, albeit unexplained gap of time as to why it took so long for McDermott to be placed in contact with duty counsel once the applicant was lodged and Poustie had no further involvement with him.

[47] This case does not stand for the proposition that any delay of over two hours to facilitate speaking with counsel gives rise to a breach of s. 10(b) rights. Indeed, every case must be decided on its own facts. However, in this case, the well over two-hour delay in implementing a call to duty counsel is excessive. Given the approximate two hour and 40 minute period, with the unexplained rationale for the delay at the police station, I find that the police did not facilitate a reasonable opportunity for the applicant to speak with counsel. I am satisfied that the applicant has established a violation of his s. 10(b) rights. I now need to address the s. 24(2) framework.

Section 24(2) of the Charter:

[48] Section 24 of the Charter states:

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

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

[50] In the seminal case of R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, the Supreme Court of Canada held that the purpose of s. 24(2) is to maintain the good repute of the administration of justice. The provision focuses not on immediate reaction to the individual case, but rather on the overall repute of the justice system. The court is tasked with maintaining the integrity of the justice system. It is an objective inquiry and it asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

[51] In Grant, at para. 75, the court stated that ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith. In R. v. Harrison, 2009 SCC 34 at para. 22, the Supreme Court of Canada points out that a reviewing court should be concerned or disassociate itself where the police knew or ought to have known that their conduct was not Charter-compliant.

[52] The approach to s. 24(2) requires consideration of the long-term, probable effect of admission of the evidence from the perspective of society at large. The focus is not on punishing the police or compensating the accused: Harrison, at para. 70.

[53] At para. 71 of Grant, the Supreme Court of Canada outlined the following three lines of inquiry to consider when determining whether the admission of the evidence brings the administration of justice into disrepute. They are:

(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.

[54] The main concern of the court is to preserve public confidence in the rule of law and its processes. Even a finding that a Charter breach falls at the most serious end of the spectrum is not dispositive of the s. 24(2) inquiry. An accurate assessment of the seriousness of a Charter breach requires an inquiry into where the police conduct falls on the continuum between good faith, lack of good faith, and bad faith.

Section 24(2) - Application of These Principles to the Present Case:

[55] I must consider each of the three lines of inquiry and then determine whether, on balance, the admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute.

The seriousness of the Charter-infringing state conduct:

[56] In considering the seriousness of the Charter-infringing state conduct, the court must ensure that it is not, in effect, condoning state deviation from the law. This is to be determined by looking at the breach on a spectrum where inadvertent or minor violations will be viewed differently from wilful or reckless disregard of Charter rights: Grant, at para. 74.

[57] The question under this first inquiry is whether admission of the evidence would bring the administration of justice into disrepute. Police conduct that show a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law: Grant, at para. 74.

[58] In Grant, the court, at para. 75 elaborated this factor by stating:

Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v. Silveira, [1995] 2 S.C.R. 297, per Cory J. ‘Good faith’ on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, [1990] 3 S.C.R. 3, at pp. 32-33, per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.

[59] I am persuaded that the police conduct in this case was not deliberate and they did not adopt a cavalier attitude towards the applicant’s rights. Poustie complied with the informational component of the RTC even in very challenging circumstances. The police held off questioning McDermott. In the normal course, the practice of transporting and lodging an accused and then affording him or her the opportunity to speak with counsel in private at the police station is not a systemic breach of Charter rights. As mentioned, in this case, for a variety of reasons; a backlog of both adult and youth offenders, a lack of staff, resources or both, there was a delay in lodging McDermott and facilitating the call to counsel.

[60] In my view, the admission of this evidence would not send a message that the justice system is somehow condoning serious state misconduct or would greatly undermine public confidence in the justice system. In my view, this factor weighs in favour of inclusion.

The impact of the Charter violation on the Charter-protected interests of the accused:

[61] The second branch of the test is outlined in Grant at paras. 76:

This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter right however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.

[62] In Grant, the Supreme Court described this line of inquiry as “the danger that admitting the evidence may suggest that Charter rights do not count”. The seriousness of the intrusion upon the rights of an accused may vary greatly. The measure of seriousness then is a function of the deliberate or non-deliberate nature of the violation by the authorities, circumstances of urgency and necessity, and other aggravating or mitigating factors.

[63] I have considered Grant, and R. v. Collins, [1987] 1 S.C.R. 265, at para. 35, and their prodigy in my review of the s. 24(2) jurisprudence on this point. It is well established that “[T]he use of self-incriminating evidence obtained following a denial of the right to counsel will generally go to the very fairness of the trial and should generally be excluded.”: Bartle, at para. 53, quoting Collins, quoting Clarkson v. The Queen, [1986] 1 S.C.R. 383.

[64] In my opinion, the impact on the applicant was significant. The inordinate delay in facilitating the right to speak with counsel and to be afforded that opportunity is often described as “a lifeline for detained persons”. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely alone while detained. While there is no cogent evidence raised by the applicant, the psychological value of access to counsel without delay should not be underestimated.

[65] Systemic or institutional abuse of constitutional rights may be an aggravating factor. The absence of evidence of systemic non-compliance with Charter requirements by the police is not a mitigating factor: Harrison, at para 25.

[66] It is true that the police did not take any further investigative action in this case in relation to the applicant. The police held off questioning as they are required to do. While I am not persuaded that the infringement is systemic or there was an absence of good faith by the police, does that address the ultimate issue under s. 24(2)?

[67] The applicant provides the case of R. v. Rover, 2018 ONCA 745, [2018] O.J. No. 4646 as authority on this point. The court dealt with a police practice prior to the obtaining of a search warrant. While the case is distinguishable on its facts, the legal principles discussed by the Court of Appeal are instructive: At paras. 27.

These cases have, however, emphasized that concerns of a general or non-specific nature applicable to virtually any search cannot justify delaying access to counsel. The police may delay access only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel. Even when those circumstances exist, the police must also take reasonable steps to minimize the delay in granting access to counsel: see e.g. R. v. Patterson, 2006 BCCA 24, 206 C.C.C. (3d) 70, at para. 41; R. v. Soto, 2010 ONSC 1734, at paras. 67-71; Learning, at para. 75; R. v. Wu, 2017 ONSC 1003, 35 C.R. (7th) 101, at para. 78.

[68] The Court went onto state at paras. 33 and 34:

In my view, to fall within the exception to the requirement that an arrested person be allowed to speak to counsel without delay, the police must actually turn their mind to the specific circumstances of the case, and they must have reasonable grounds to justify the delay. The justification may be premised on the risk of the destruction of evidence, public safety, police safety, or some other urgent or dangerous circumstance. Furthermore, if the police determine that some delay in allowing an arrested person to speak to counsel is justified to permit execution of the warrant, then they must consider whether it is necessary to arrest the individual before they execute the warrant. The police cannot create a justification for delaying access to counsel by choosing, for reasons of convenience or efficiency, to arrest an individual before seeking, obtaining, and executing a search warrant. Police efficiency and convenience cannot justify delaying an arrested person's right to speak with counsel for several hours.

The effective implementation of the right to counsel guaranteed by s. 10(b) depends entirely on the police. The police must understand that right and be willing to facilitate contact with counsel. The practice under which the officers involved in this case operated demonstrates a disregard of a fundamental constitutional right. The appellant's right to speak with counsel was denied at the time of his arrest, when the police refused his request to speak with counsel.

[69] I note that at para. 46 of Rover, the subject was placed in the cells without any explanation for the police refusal of access to counsel or any indication of when he might be allowed to speak with a lawyer. In this case, there was some evidence, albeit there is an unexplained gap of time between 9:34 p.m. and 11:25 p.m.

[70] The point raised by the appellant was also considered in R. v. Edwards, 2016 ONCA 389, [2016] O.J. No. 2656. At para. 105, the Court of Appeal held:

But the s. 10(b) breaches have a much greater impact on Ms. Pino's interests. These breaches were neither technical nor fleeting. Being forced to sit alone in a jail cell for over five hours after her arrest without access to counsel undermined the very interests s. 10(b) seeks to protect: correct information about the right to counsel and the immediate ability to consult with a lawyer. Ms. Pino was vulnerable and she needed counsel, not just for legal advice, but as a lifeline to the outside world. This second Grant factor also favours exclusion.

[71] I observe that the court went on to state: “The Charter-infringing state conduct in this case must be viewed as very serious. A police practice that routinely holds detained individuals incommunicado while the police go about obtaining and executing a search warrant must, over time, bring the administration of justice into disrepute”.

[72] As mentioned, specific circumstances may justify some delay in providing a detainee access to counsel. Those circumstances often relate to police safety, public safety, or the preservation of evidence. However, police efficiency and convenience or the lack of resources cannot justify delaying an arrested person's right to speak with counsel for several hours without adequate explanation.

[73] Clearly the facts in Edwards are distinguishable. While I do not find that this was a systemic disregard of rights, a declaration of a breach of s. 10 Charter rights tends to ring hollow if there is no remedy pursuant to s. 24(2). This factor weighs heavily in the exclusion of the applicant’s formal statement to the police.

Society’s interest in the adjudication of the case:

[74] In considering this factor, the question to be asked is “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion”. The reliability of the evidence is an important factor in this line of inquiry. In Grant, at para. 83, the Supreme Court of Canada discussed how the importance of the evidence to the Crown’s case is a relevant consideration:

The importance of the evidence to the prosecution’s case is another factor that may be considered in this line of inquiry. Like Deschamps J., we view this factor as corollary to the inquiry into reliability, in the following limited sense. The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.

[75] This aspect of the inquiry considers whether the truth-seeking function of the criminal trial process would be better served by admission or exclusion of the evidence. As the Supreme Court of Canada stated in Grant, at paras. 79 and 82:

Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society’s ‘collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law.’ … Thus the Court suggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.

The Court must ask itself “whether the vindication of the specific Charter violation through exclusion of the evidence exacts too great a toll on the truth-seeking goal of the criminal trial.

[76] As Crown counsel submits, should the evidence of the weapons be excluded, the prosecution will not have a case related to those charges. The same may not hold true for the applicant’s statement as it was both exculpatory and partially inculpatory.

[77] Indeed, there is a societal interest in ensuring that those who break the law are brought to trial and dealt with according to the rule of law. There is no doubt about society’s interest in prosecuting offences related to robbery and possession of weapons dangerous. With respect to the weapons, discoverability retains a useful role in assessing the actual impact of the breach. It is well established that this factor may weigh against a finding the breach had a meaningful impact on the accused’s Charter-protected interests.

[78] The final step is a balancing of all of these factors. In Harrison, the Supreme Court provided some guidance to trial judges, at para. 36:

The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether; having regard to all of the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.

[79] The impact on the Charter-protected interests of the applicant was serious However, I am satisfied that the police conduct in this case did not demonstrate a deliberate or systemic disregard for Charter rights. I do not find that the actions of the police would invite a negative impact on the public confidence in the administration of justice and the rule of law. However, a delay of over five hours to implement contact with duty counsel cannot be condoned.

[80] As stated, it is well established that the use of self-incriminating evidence obtained following a denial of the RTC will generally go to the very fairness of the trial and should generally be excluded; even in cases such as here where the police acted in good faith. An accused’s statement or conscriptive evidence arising from such a violation, if established, would rarely be admitted into evidence pursuant to the factors to be considered under s. 24(2) of the Charter.

[81] I am persuaded that the applicant’s formal statement to Jones must be excluded.

Exclusion of Evidence - Obtained in a manner requirement:

[82] The applicant submits that the evidence seized upon his arrest ought to be excluded based on the s. 10(b) breach and the obtained in a manner requirement. While I have sustained a Charter breach, I will not go as far as counsel suggests.

[83] One of the appellate authorities on point is found in Edwards. In that case, there were findings of both ss. 8 and 10(b) Charter violations. The Court of Appeal considered that the trial judge held that the RTC breaches occurred subsequent to the seizure of the marijuana during the search and thereby did not meet the “obtained in a manner requirement”. Paciocco J. (as he then was) concluded that appellate authority precluded the exclusion of evidence discovered before a Charter breach had occurred.

[84] Laskin J.A. for the court reviewed the jurisprudence at paras. 51-53:

Instead, beginning with Strachan, the Supreme Court has taken an increasingly generous and broad approach to the "obtained in a manner" requirement in s. 24(2) -- an approach that looks to the overall purpose of the section, whether admission of the evidence would bring the administration of justice into disrepute.

So, in Strachan itself, Dickson C.J.C. held that "obtained in a manner" did not require a causal connection between the Charter breach and the evidence. A temporal connection would be enough, so long as it was not too remote and so long as the breach and the discovery of the evidence occur "in the course of a single transaction". The Chief Justice emphasized that the court should look at the "entire chain of events". And there should be no bright line rule; "these situations should be dealt with on a case by case basis."

Two years after Strachan, in R. v. Brydges, [1990] 1 S.C.R. 190, at p. 210, Lamer J. held that the connection between the Charter breach and the evidence should be looked at broadly: "... s. 24(2) is implicated as long as a Charter violation occurred in the course of obtaining the evidence."

[85] The Court of Appeal at para. 72 provided guidelines on this very issue:

Based on the case law, the following considerations should guide a court's approach to the "obtained in a manner" requirement in s. 24(2): The approach should be generous, consistent with the purpose of s. 24(2). The court should consider the entire "chain of events" between the accused and the police. The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct. The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections. But the connection cannot be either too tenuous or too remote.

[86] The Court of Appeal found that the two s. 10(b) breaches along with the s. 8 breach meet the "obtained in a manner" requirement. The marijuana seized from the trunk of the appellant’s (Ms. Pino) car and all three Charter breaches were part of the same transaction. That transaction or the common link between the evidence and the breaches was the appellant's arrest.

[87] In Edwards, at para 74, the Court of Appeal went further to state that:

The connection between the evidence and the breaches is both temporal and contextual, and is neither too tenuous nor too remote. The connection is temporal because the three breaches are relatively close in time and. Are part of a continuum straddling Ms. Pino's arrest. The connection is also "contextual". I take "contextual" -- a word often used by lawyers and judges -- to mean pertaining to the surroundings or situation in which something happens. In this case, the something that happened is Ms. Pino's arrest. And the two s. 10(b) breaches and the s. 8 breach surrounded her arrest or arose out of it. Indeed, the trial judge found that the s. 10(b) breaches form "part of the context" in which the s. 8 breach occurred.

[88] The Edwards case is factually distinguishable from the case at bar in that there were a multitude of Charter breaches found to have existed in context to the breach. The judge found that the officers lied and failed to accurately inform the offender of her s. 10(b) rights, amongst other issues related to a search.

[89] Ever mindful of the direction from the appellate court, in this case, when considering the entire chain of events I find that there was no causal or temporal connection to the weapons seized or the voluntary utterances made by the applicant at the scene with the subsequent s. 10(b) breach. Further, the real evidence seized was not part of the same transaction or course of conduct.

[90] As I explained, it was the subsequent delay at the station in facilitating access to counsel in a reasonable timeframe that gives rise to the Charter breach. I am persuaded that the connection between the weapons seized and the spontaneous utterances with the breach is tenuous and remote.

[91] There is no dispute that the knives and bear spray were found incident to arrest, conceded by the applicant to be a lawful detention and search. The weapons existed independently of the s. 10(b) breach. The evidence is of great probative value to the Crown’s case as a whole considering the truth-seeking goal of the trial and the public interest in the prosecution of serious crime. Society’s interests in the adjudication of the case on its merits are best served by not excluding evidence that was obtained by means of a Charter breach, when its probative value is so strong. An overall consideration of this public interest factor militates in favour of admission of this evidence.

Conclusion:

[92] The s. 10(b) Charter application is granted in part.

[93] The applicant was properly advised of his jeopardy and RTC in a way that permitted him an opportunity to exercise his rights. However, the implementation of that right was inordinately delayed and not in accord with constitutional standards. I find that the applicant has established a breach of his s. 10(b) Charter rights.

[94] There is neither a casual nor temporal connection between the weapons found as a result of a search incident to the applicant’s arrest. Further, his utterances at the scene were voluntarily made in spite of being advised of his rights. In my opinion, both were not obtained in a manner that would bring the administration of justice into disrepute. Accordingly, the weapons seized and the applicant’s utterances to the police officer upon his arrest are admissible at the behest of the Crown.

[95] In balancing of all of the s. 24(2) factors, given the inordinate delay in facilitating the applicant’s rights to speak with counsel in the circumstances of this particular case, I conclude that the admission into evidence of his formal video statement to the police would bring the administration of justice into disrepute, and is excluded.

A.J. Goodman J. Released: January 4, 2019