Court File and Parties

COURT FILE NO.: CR-17-50000477 DATE: 20190719 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Erin Pancer for the Crown Crown

- and -

ANDREW BOND Hans Cedro for Mr Bond Accused

JUDGMENT

D.L. Corbett J.:

[1] On June 11, 2018, I found Andrew Bond guilty of possession of about 613 grams of cocaine for the purposes of trafficking, and illegal possession of a loaded semi-automatic handgun, and related offences. I found that he was an armed drug dealer. Mr Bond had an extensive prior criminal record, including prior firearms convictions. At the time of the offences for which I found Mr Bond guilty, he was subject to three separate firearms prohibitions. On October 28, 2018, I sentenced Mr Bond to 8 years and 1 month in prison based on a global sentence of 11 years less credit for time served.

[2] During the trial the defence sought to exclude evidence on the basis that it was obtained in violation of Mr Bond’s rights to be free from unreasonable search and seizure. This application had two aspects argued before me:

(a) Police obtained warrants on the basis of information from confidential informants. The defence argued that the warrants could not be upheld on the basis of unredacted portions of the Information to Obtain (“ITO”) used before the issuing justice.

(b) Police obtained information about Mr Bond’s whereabouts by “pinging” the phone with which he was associated. Police did this with the assistance of Bell Canada without first obtaining a warrant to so do. The defence argued that this was a warrantless search and all information obtained by police as a result of this “pinging” should be excluded.

[3] The defence also argued that Mr Bond’s rights to counsel were infringed or denied because Mr Bond was detained in custody without an opportunity to speak to a lawyer for roughly ten hours.

[4] The Crown conceded that the unredacted portions of the ITO were not sufficient to support the warrant. The Crown provided a fresh redacted version of the ITO that disclosed more information. The Crown then applied to the court pursuant to step 6 of Garofoli for warrants obtained as a result of information from confidential informants. In support of this application, the Crown provided a draft proposed judicial summary, and argued that, taken altogether, the revised redacted ITO, together with the judicial summary, was sufficient to enable the defence to challenge the warrant, and to enable the court, on a review of the unredacted ITO, to conclude that (a) the warrants should be upheld; and (b) the defence had been provided sufficient information to be able to contest the warrants fairly while still protecting the identity of the confidential informant.

[5] The Crown argued that the “pinging” of the cellphone (a) was justifiable as a warrantless search on the basis of apprehended exigency; (b) produced no material evidence on the question of guilt or innocence of Mr Bond; and, in the alternative, (c) if it was an unreasonable search, ought not lead to exclusion of evidence in light of the test in R. v. Grant.

[6] I conducted a step 6 Garofoli analysis and upheld the warrants in the result. I gave brief oral reasons at the time of the ruling, reserving the option of providing fuller reasons later. I accepted the Crown’s arguments respecting the “pinging” of Mr Bond’s phones and dismissed the defence argument respecting breach of Mr Bond’s rights to counsel, again with brief reasons, with the option of further reasons to follow.

Summary

[7] On the basis of information received from four confidential informants, three of whom had proven reliable previously and one of whom had never previously provided information to police, police believed that Andrew Bond was dealing cocaine at 2195 Jane Street, Toronto. They believed that Mr Bond was armed, habitually carrying a semi-automatic handgun tucked in the waistband of his pants.

[8] Police investigated and learned of three addresses to which Mr Bond was associated other than the Jane Street apartment building where he was suspected to be dealing cocaine. Further investigation led police to believe that Mr Bond was spending time at two of these places: a residential apartment (which turned out to be rented by Mr Bond’s mother) and a commercial unit in a warehouse-style, low-rise commercial building divided into multiple small units within a larger office-style suite of offices. Police also learned that Mr Bond appeared to have the use of a car, registered to owner Amanda Bond (with an address in Hamilton), and of a cellphone not registered in Mr Bond’s own name. Police also learned from their investigation that Mr Bond had an extensive criminal record including prior firearms offences and three subsisting prohibition orders.

[9] Police believed that they had sufficient information to justify issuance of search warrants for the two premises and a car they associated with Mr Bond:

(a) 1393 Wilson Avenue, apt. #308, Toronto (the “Apartment”);

(b) 1970 Ellesmere Road, unit #16, Toronto (the “Commercial Condo”); and

(c) A green 2004 Honda Accord, Ontario license CAZZ 493 (the “Car”).

Police applied for warrants to search these places. A Justice of the Peace rejected the request. Police resubmitted their request for warrants to Justice Brownstone of the Ontario Court of Justice. Police advised Justice Brownstone that a previous request for warrants had been denied by a Justice of the Peace, and provided the reasons they had been given for the denial. Justice Brownstone authorized the requested warrants. This is not impermissible judge-shopping: it was within Brownstone J.s discretion to decide the warrant request, and he did so on full and fair information: R. v. Campbell, [2014] OJ No. 6541 (SCJ), per McMahon J.

[10] When police executed the warrants, at around 5:30 am on December 28, 2016, they found Mr Bond at the Apartment. He had apparently been sleeping on a couch in the living room. His mother was also located in the apartment: she had apparently been sleeping in the one small bedroom.

[11] Police located various property apparently associated with Mr Bond in the apartment, including clothing and other items in storage boxes in the living area of the apartment. They also located identification for Mr Bond, a quantity of cocaine and paraphernalia for preparing crack from cocaine. Mr Bond was arrested and charged with possession of cocaine for the purposes of trafficking.

[12] When police searched the Commercial Condo, they found that it was comprised of a reception area and a long corridor off which were separate locked office premises. They entered and searched room #10, which was associated with Mr Bond. Police found evidence in this office linking the office to Mr Bond, including personal papers, CD’s of Mr Bond’s music, and clothing. Police discovered a knapsack containing personal papers of Mr Bond’s, in which was found cocaine in a quantity sufficient to give rise to an inference that it was possessed for the purposes of trafficking.

[13] Police also found a loaded handgun in the Commercial Condo, under a coffee table, and, in addition, separately found firearm ammunition.

[14] Among the papers found in the Commercial Condo was a storage locker rental agreement in Mr Bond’s name. Having discovered drugs at both the Apartment and the Commercial Condo, and the handgun and ammunition at the Commercial Condo, police considered that they had grounds to obtain a warrant to search the storage locker. Police prepared a request for a warrant to search the storage locker. When the warrant was issued, they searched the storage locker, in which was full of ordinary residential furniture. Police also found a small case holding a pair of sunglasses in which they also found a small quantity of cocaine.

[15] When police searched the Car they did not find any material evidence.

Structure of these Reasons

[16] The search warrants for the Apartment and the Commercial Condo could not be justified without the information received from the confidential informants. The Crown concedes that it must succeed on step 6 of a Garofoli analysis for the search warrants to be upheld. Therefore I start with this issue: it is not necessary to decide the second and third issues if the Crown cannot meet step 6 of Garofoli.

[17] Second, since, as I explain below, I am satisfied that the Crown has met the test under step 6 of Garofoli, I then consider the warrantless “pinging” of Mr Bond’s cellphone. This analysis involves three steps:

a. First, I am satisfied that there was exigency to justify proceeding without a warrant in the circumstances of this case, though it would have been better for police to have obtained a warrant during the course of their investigation – even if they had not done so the first time they “pinged” the cellphone. It took police several days to confirm Mr Bond’s whereabouts and association with the apartment and the commercial condo, and a warrant could have been obtained for the “pinging” during this time.

b. Second, even if I had concluded that the “pinging” was an unreasonable search and seizure, I would not have struck down the search warrants or ruled the evidence obtained during the searches inadmissible because of the “pinging”. The results of the “pinging” were used by police in their investigation to locate Mr Bond. Other evidence of Mr Bond’s location was also used by police to satisfy the issuing justice that the Apartment and the Commercial Condo were associated closely enough to Mr Bond to provide reasonable and probable grounds to believe that evidence could be found in those places. In other words, I conclude that the information received from the “pinging” supplemented information police obtained legitimately, and that police could have proceeded as they did without the information they received from “pinging” the cellphone associated with Mr Bond.

c. Third, in the further alternative, if it was considered that the “pinging” was an unreasonable search and seizure, and if it was considered that material information to support the warrants was obtained as a result of the “pinging” such that exclusion of the derivative information would undercut the reasonable and probable grounds for issuing the warrants, I would nonetheless decline to exclude the evidence discovered during the searches on the basis of a Grant analysis.

[18] Finally, I consider Mr Bond’s position that his exercise of his rights to counsel was unduly delayed, infringing his rights under s.10(a) of the Charter. Police delayed permitting Mr Bond to speak to counsel until they had obtained and executed the warrant to search the storage locker. Police moved with reasonable dispatch to complete this step. It was reasonable to defer implementation of the rights to counsel in these circumstances, to reduce the risk that counsel could have been used unwittingly to convey information to a confederate of Mr Bond’s, thus reducing the risk that a confederate could use the delay in police executing a search warrant on the storage locker to enter the locker and hide or destroy evidence. Mr Bond suffered no actual prejudice from the delay.

First Issue: Garofoli Step 6

[19] The Crown conceded in para. 9 of its factum that “as a result of substantial editing of the ITO, the authorization on the basis of the edited material cannot be supported.” (emphasis in original). The Crown therefore applied pursuant to step 6 of Garofoli to have the court review the edited portions of the ITO in order to support the ITO. To quote from Garofoli:

6. If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. The trial judge should acceded to the request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function…. R. v. Garofoli, [1990] 2 SCR 1421, at para. 179.

[20] The Crown provided a proposed draft judicial summary. For brief reasons given orally during the trial, I was satisfied with the judicial summary and did not propose adding additional information.

[21] As disclosed in the judicial summary and redacted ITO, police relied on evidence from four different confidential informants who provided information respecting events within five months of the date of issuance of the warrants:

(i) All four of the confidential informants provided detailed and specific first-hand information, identifying Andrew Bond as a cocaine dealer, carrying on business as such at 2195 Jane Street, Toronto, and provided information that Mr Bond possessed and used a firearm in his drug-dealing. Each of the confidential informants stated that s/he had seen the handgun in Mr Bond’s possession.

(ii) Each of the confidential informants identified a photo of Andrew Bond as the armed drug dealer.

(iii) Three of the confidential informants gave the same nickname for Mr Bond. The fourth gave a shortened version of that nickname.

(iv) Three of the confidential informants described the firearm as a semi-automatic handgun (one of whom described it as “Glock-style, police-style”) and said that Mr Bond keeps the gun tucked in his front waistband.

(v) Three of the confidential informants were proven reliable sources of information in past. The fourth informant had not previously provided police with information.

(vi) Each of the four confidential informant’s evidence is strongly corroborated by the evidence of the other three confidential informants.

(vii) The specific and detailed information provided by the confidential informants was not “widely known” or “easily ascertainable”.

[22] This information was not corroborated by police. But by the nature of this information, it could not be corroborated readily. The multiplicity of informants more than makes up for the absence of police corroboration that Mr Bond was dealing drugs.

[23] I am satisfied that this information, taken together, provide evidence:

a. That the person being described by the confidential informants is one and the same person (the “Subject”), going by the same street nickname, conducting business as an armed drug dealer at 2195 Jane Street;

b. That the Subject is habitually armed with a semi-automatic handgun which the Subject carries by tucking the gun in at the waist of his pants.

c. That the informants are very afraid of the Subject.

d. That the Subject is Andrew Bond.

[24] The confidential informants did not provide information linking Mr Bond to a residential address other than 2195 Jane Street and they did advise that Mr Bond did not live there.

Police Evidence

[25] Police conducted database searches that disclosed the following information:

a. Mr Bond’s extensive criminal record, including three prohibition orders pursuant to s.117.01(1) of the Criminal Code;

b. Mr Bond’s physical description;

c. Mr Bond gave the Apartment as his address in a police occurrence report when he was ticketed for trespassing on December 20, 2014 (two years prior);

d. Mr Bond’s driver’s license showed his home address as the Apartment;

e. A telephone number associated with Mr Bond was provided to social services as Mr Bond’s contact number (police could not be certain but it was likely this information was provided to social services by Mr Bond). The billing name for the phone was “Rhonda Anderson” and the person listed as the user of the phone was “Justine Savage”;

f. On March 27, 2016, there was a radio call for a company alarm that sounded at the Commercial Condo. When officers attended the alarm, they found a male identified as Andrew Bond in unit 10 at the Commercial Condo.

[26] Police conducted surveillance that provided the following information:

a. Mr Bond was seen at a Tim Horton’s store at Jane and Wilson in Toronto on December 22, 2016. Bond drove the Car to the building in which the Apartment is located (1393 Wilson Ave.). Mr Bond got out of the car and entered the Apartment building at about 10:44 am, December 22, 2016. Shortly after, Mr Bond came back out of the building and drove off in the Car.

b. On December 27, 2016, 6:00 am, the Car was observed parked at the rear of and near to an entrance door to the Commercial Condo. Surveillance continued on the Car and it remained parked in this location until, shortly before 3:00 pm, Mr Bond was seen leaving the Commercial Condo, entering the Car, and driving off. At about 4:07 pm the Car was seen at Jane and Wilson. At 4:18 pm, Mr Bond drove in the Car from a TD Bank branch at Jane and Wilson to the Apartment building. Mr Bond exited the Car and entered the Apartment building.

c. On December 28, 2016, 6:00 am, the Car was observed parked at the Apartment building, in the same position in which it had been parked the previous afternoon by Mr Bond.

[27] Police contacted Pizza Pizza and requested information about any orders received from the cellphone number associated with Mr Bond. There were two such orders, both delivered to the Commercial Condo, at the rear door (the door which police subsequently observed Mr Bond using):

a. October 3, 2016, ordered by “Kevin”

b. December 19, 2016, ordered by “Jason”

[28] Police obtained information from Bell Canada (discussed further below) in respect to the location of the cellphone associated with Mr Bond at various times, which showed that the cellphone associated with Mr Bond was in the area of the Apartment and the Commercial Condo on December 19 and 20, 2016.

Requirements for the Warrant

[29] The statutory preconditions to authorization of warrants in this case are found in s.487 of the Criminal Code. The standard of proof is “reasonable probability” that evidence can be found in the places sought to be searched: R. v. Debot, [1989] 2 SCR 1140.

[30] “Reasonable grounds” in s.487 has both an objective and a subjective component. Subjectively, the affiant police officer must honestly believe that the suspect has committed an offence and that evidence of the offence will be found at the place to be searched: R. v. Farrugia, 2012 ONCJ 830, at para. 36.

[31] The objective component of the analysis is whether the officer’s subjective view is supported by the objective facts: whether a reasonable person in the position of the officer would be able to conclude that reasonable grounds existed: R. v. Farrugia, 2012 ONCJ 830, at para. 36.

[32] Here, the totality of information from the confidential informants grounded the officer’s belief that Mr Bond was an armed and dangerous drug dealer, selling cocaine in Toronto. Objectively, a reasonable person in the position of the officer would so conclude. What is lacking from the confidential informants is information related specifically to the places police wished to search.

[33] As noted by my colleague Code J., step 6 in Garofoli has not been litigated often. The case at bar is an example of a situation where its use is apposite. On the basis of information from the confidential informants and the fruits of police investigation, described above, Mr Bond appears to be a very dangerous man, systematically dealing hard drugs, carrying a loaded semi-automatic handgun, in defiance of multiple prohibition orders. He seems to be at pains to keep his whereabouts opaque. But of course he must sleep somewhere, and discreet traces of his life were detectable through old-fashioned police surveillance and review of databases. This part of the investigation was simply focused on finding the man and identifying places where he was thought to be regularly, places which might be called his residence or his place of business. R. v. Learning, 2010 ONSC 3816. Since Learning, see R. v. Sahid, 2011 ONSC 979; R. v. Farrugia, 2012 ONCJ 830, R. v. Crevier, 2015 ONCA 619, R. v. Reid, 2016 ONCA 525.

[34] The judicial summary and the redacted ITO make it clear that police had reasonable and probable grounds to believe Mr Bond had committed criminal offences and was probably still committing them on an ongoing basis. In terms of the test in Debot, the totality of this evidence is “credible, corroborated and compelling”: R. v. Debot, [1989] 2 SCR 1140. Direct evidence from four informants, three of whom had previously proved reliable, is a very strong case to establish reasonable grounds to believe that a crime has been and will be committed. The weaker part of the evidence in support of the warrants concerns whether the places to be searched are sufficiently connected to Mr Bond to justify authorization of search warrants. And the evidence in respect to these issues is not found in the information obtained from the confidential informants. The defence has full access to the information before the issuing justice on these contested points, and is able to challenge it fully in this court.

[35] The evidence pointing to the Apartment and the Commercial Condo, fully disclosed to the defence as it was provided to the issuing justice, was more than sufficient to ground issuance of the warrants. The Crown has satisfied step 6 of Garofoli in respect to the basis for believing Mr Bond was an armed drug dealer. The warrants are upheld.

The Pinging of Mr Bond’s Phone

[36] The pinging of the cellphone took place over two days – December 19 and 20 – as police were trying to locate Mr Bond. Police had information tying Mr Bond to the Apartment and the Commercial Condo. The “pinging”, it was hoped, might tend to corroborate these suspected addresses.

Voluntary Disclosure by the Cellphone Provider

[37] Police requested the cell-phone provider, Bell Canada, to “ping” the phone associated with Mr Bond and advise police of any information received as to the phone’s whereabouts.

[38] The cellphone provider has a policy about disclosure of cellphone information to police. It reads as follows (Exhibit 4):

We only provide GPS information to law enforcement agencies without a warrant when there is a clear reason to believe a life may be in immediate danger, for example an attempted suicide, abduction, or a missing person. Under any other circumstances we require a warrant or a court order. In either case, law enforcement agencies work with a single office within Bell to manage their requests and we don’t charge for the service. Of course, under CRTC regulations all carriers provide, when possible, information on location for calls to 911, to assist emergency services to locate individuals in need of assistance.

[39] Police advised Bell that the circumstances were exigent and that they had urgent need to locate Mr Bond. Bell provided the following information to police as a result of the “pings” carried out at police request:

a. December 19, 2016, 8:00 am – phone in the vicinity of Jane and Wilson;

b. December 19, 2016, 10:24 am – phone in the vicinity of Ellesmere and Bellamy Rd.;

c. December 20, 2016, 3:20 am – phone in the vicinity of Montana Ave. and Privett Road, Downsview (near the Apartment);

d. December 20, 2016, 3:30 am – phone in vicinity of Privett Road, Downsview;

e. December 20, 2016, 5:47 am – south of Wilson Ave (close to the previous two “pings”).

The Law

[40] Sproat J. summarized the nature of the evidence that can be obtained about location of cellphones as follows:

Mobile telephones check into wireless networks by connecting to antennas that are generally mounted on towers. Cell phones typically access the closest tower but may access more remote towers due to obstructions such a buildings or due to high demand having utilized capacity at the closest tower. A record is created whenever the telephone attempts to completes a communication which could be a phone call, text message or email. The record identifies the particular tower at which the phone connected to the network. Each tower serves a geographical area ranging from a 10-25 kilometer radius in the country to less than two kilometers in the city. R. v. Rogers Communications Partnership, 2016 ONSC 70, at para. 4, per Sproat J.

In this case decided by Sproat J., the issue was obtaining “tower dump” records that would show all activity associated with a particular antenna during a particular period, in an effort to identify potential suspects for a robbery that occurred in the vicinity.

[41] In the case before me, the information sought from Bell was more precise. Police did not want to know about all activity at a particular antenna at a particular time. Police wanted Bell to send an electronic signal to the phone associated with Mr Bond to prompt an electronic reply. If there was a reply, police wanted to know the location of the antenna that received the reply. In this way, police would be able to identify the general geographic area in which the phone was located.

[42] The information to be thus obtained would not be expected to be evidence of a crime. Rather, it was evidence of Mr Bond’s location, to assist police to identify premises with which he was associated (where evidence might be found), and to provide information about where Mr Bond might be found in order to detain him for purposes of investigation.

[43] Although the scope of the information sought by police from Bell was much narrower and more focused than the “tower dump” records before Sproat J., the rights analysis proceeds following the same framework. And that framework starts with the principle, as stated by Sproat J., that “[c]ommon sense indicates that Canadians have a reasonable expectation of privacy in the records of their cellular telephone activity…. The location of a person at a particular time… raises privacy concerns”: R. v. Rogers Communications Partnership, 2016 ONSC 70, at para. 19, per Sproat J. See also R. v. Mahmood, 2011 ONCA 693.

[44] As noted in Trapp, 2011 SKCA 143, police should not be able to use private cellphones as tracking devices without a warrant, except in exigent circumstances. In the case at bar, police were not trying to “track” Mr Bond so much as to find him. Police wished to establish premises associated with Mr Bond – his residence or places he used as a residence, so that they could effect his detention and search the premises associated with him.

[45] All of this must be placed in the context as it appeared to police. Police had reasonable and probable grounds to believe that Mr Bond was an armed and dangerous drug dealer. It appeared that he was organizing his affairs to leave little trace of his whereabouts: premises with which he appeared to be associated were not in his name, the car he used was not registered to him, and the cellphone to which he was associated was registered to two other people. On the basis of the limited information that they did have, he was associated with the Apartment, the Commercial Condo and the Car, and they were seeking confirmatory information as to his whereabouts.

The Exigent Circumstances

[46] Bell Canada required exigent circumstances to provide information after “pinging” the phone. Police told Bell Canada that there were exigent circumstances. Bell Canada accepted this statement and provided the information to police as requested.

[47] I assume without finding that exigent circumstances are required to obtain this information from Bell Canada without a warrant. Police and Bell Canada proceeded on this basis, and the Crown did not argue before me that this basis was in error.

[48] Bell Canada is not required to inquire into the exigent circumstances asserted by police; it is entitled to accept the position taken by police. It is then up to the courts to assess the claim of exigency.

[49] The basis for the subjective belief of police that there was exigency was provided by Confidential Informant #4 (see Exhibit 4). All of the information pertaining to exigency was redacted. Subjectively, I am satisfied that police believed they urgently needed to locate Mr Bond. I cannot explain the basis for this conclusion without disclosing information that has not been disclosed in the redacted ITO or the judicial summary. This, of course, leaves the defence in the position that it cannot challenge the Crown’s argument about exigency.

Section 24(2)

[50] If it was thought that there were no exigent circumstances justifying obtaining “ping” information from Bell without a warrant, or if it was thought that the Crown could not rely upon exigent circumstances that are undisclosed to the defence to protect confidential informant privilege, then exigent circumstances are not established. In this event, the search would be an unreasonable search and seizure within the meaning of s.8 of the Charter. This would take the analysis to remedy under s.24(2) of the Charter.

[51] Under Grant, [2009] 2 SCR 353, I would view the infringement as of moderate seriousness. The protected interest – to have privacy respected and not to permit the state to use cellphones as personal tracking devices – is an important one. Here, the impact on Mr Bond’s protected interests is modest but real: police were not tracking him around the city, but trying to confirm his place of residence. On the third branch of Grant, however, the analysis diverges depending on the view one takes of the rest of the evidence.

[52] In my view, even if the evidence from the “pings” was excluded, the Crown’s case would not be materially affected. Police had an independent basis for believing that Mr Bond was living at the Apartment, and that basis was sufficient for granting the warrants. The “pings” were not relevant to any issue other than identifying Mr Bond’s whereabouts, an issue, itself, only relevant to identifying the premises to be authorized under the warrants. The warrants were justified without the “pings”, and so excluding the “pings” would not affect anything else: none of the evidence admitted against Mr Bond, other than the “pings” themselves, was derived from the “pings”. Indeed, police subsequently conducted direct surveillance that provides a much stronger basis – the one truly relied upon by the Crown – to tie Mr Bond to the premises searched. On this analysis, society’s interest in adjudication on the merits would be unaffected by exclusion of the evidence, and I would exclude the evidence under s.24(2).

[53] If it was thought that the pings were necessary to establishing a basis for granting the warrants to search the Apartment and the Commercial Condo, then the third factor in Grant would weigh heavily in favour of admitting the “pings” into evidence. A warrant would have been granted for the “pings”, and I would not exclude the evidence to the prejudice of the Crown’s case because, in retrospect, the Crown was unable to establish an objective for the officer’s sincerely held belief that circumstances were exigent.

Alleged Breach of Rights to Counsel

[54] Mr Bond was arrested at about 5:30 am, December 28, 2019, at the Apartment. He was cautioned for trafficking cocaine after the search of the Apartment, and then was cautioned again respecting the charges related to the semi-automatic handgun after it was found at the Commercial Condo.

[55] There is no issue with the manner in which Mr Bond was cautioned, and that it included advising him of his rights to counsel. There is no issue respecting the timing of these cautions: they were administered within a reasonable time after police decided to charge Mr Bond. What is in issue is the implementation of Mr Bond’s rights to counsel.

[56] After Mr Bond was taken into custody, he was transported to a police station, processed, and placed in a detention cell at a police station. He was not given an opportunity to call a lawyer until about 6:00 pm that same day. This delay (which the Crown and defence agree was about 10 hours from the first reasonable opportunity police could have permitted Mr Bond to call counsel) is argued to be a breach of Mr Bond’s rights to counsel under s.10(a) of the Charter.

No Prejudice Caused by the Delay

[57] Police did not seek to obtain a statement from Mr Bond prior to affording him his right to speak with counsel. Mr Bond did not make an utterance upon which the Crown relies on the question of guilt or innocence during the period of delay.

[58] Theoretically, Mr Bond’s ability to seek interim judicial release could have been delayed by the delay in implementing his rights to counsel. Counsel cannot prepare for and bring a bail application before being contacted by her client. However, this potential prejudice is notional in this case. First, the delay is not so long, in the context of the charges against Mr Bond, to be unreasonable. These are very serious charges. Second, given Mr Bond’s criminal record, and given the alleged breach of three prohibition orders, the chances of Mr Bond receiving early interim judicial release were low. In fact, Mr Bond did not receive interim judicial release at all in this case, and so his time in custody was not prolonged by the delay in affording him his right to consult with counsel.

Police Justification for the Delay Was Reasonable

[59] As disclosed in the Agreed Statement of Fact respecting Rights to Counsel, Mr Bond was detained and removed from the Apartment at 5:18 am. Mr Bond was then taken from the Apartment and moved up to the 4th floor of the Apartment building by P.C. Magee, and was advised that he was under investigative detention. Mr Bond is provided with his rights to counsel shortly thereafter, at around 5:30 am. Mr Bond asked officers to make sure that his mother was okay. He is then asked if he wants to speak to a lawyer, to which he responds “No, I just want my mom taken care of.”

[60] Cocaine was then located in the Apartment and Mr Bond was placed under arrest for possession of that cocaine. He was later transported to 31 Division where he was placed in a detention cell. At 14:20 pm, Det. Wauchope entered Mr Bond’s cell and told him police were awaiting a warrant to search the storage locker. He was told that once the storage locker was searched, Mr Bond would be given an opportunity to speak with counsel.

[61] At around 18:00 pm, Det. Wauchope called 31 Division and advised D.C. Clarke, at 31 Division, that the storage locker search had been executed and that Mr Bond could call counsel and make other calls.

[62] Police had located a substantial quantity of cocaine and a semi-automatic handgun, which they reasonably believed to belong to Mr Bond. Based on the information received from Confidential Informants, police believed that Mr Bond was in the business of drug-dealing. Based on their investigation, police had found that Mr Bond did not have a fixed address associated with his own name, drove a car and used a cellphone associated with the names of other persons, and concluded that Mr Bond could have been trying to keep his whereabouts shrouded.

[63] When police found papers in Mr Bond’s name showing that he had rented a storage locker, they suspected, on reasonable grounds, that drugs, perhaps a substantial quantity of drugs, could be found in the storage locker. Police did not obtain this information until they searched the Commercial Condo later that same day.

[64] Police did not afford Mr Bond the opportunity to speak with anyone until they had obtained and executed a warrant to search the storage locker. They did this to protect their investigation and for officer safety. This is not to say that police feared that counsel would intentionally assist Mr Bond to have someone destroy or remove evidence from the storage locker. But instructing counsel on potential sureties, for example, could be a way for Mr Bond to alert confederates to his plight, thus enabling those confederates to enter the locker before police could obtain a warrant.

[65] I appreciate that police could have sent officers to guard the storage locker until a warrant was obtained. However, just because there were other policing techniques available to police does not render the choice made in this case an unreasonable one. Police resources are not infinite, and the minor delay in implementing Mr Bond’s right to speak to counsel, which caused no prejudice beyond the delay itself, did not amount to an infringement of Mr Bond’s right to counsel, given the context. See R. v. Strachan, [1988] 2 SCR 980; R. v. Bartle, [1994] 3 SCR 173.

[66] Further, if it was thought that the delay was an infringement of Mr Bond’s rights to counsel by delaying their implementation, that delay caused no prejudice to Mr Bond and I would not afford him a remedy. In the alternative, if it was thought that there was a breach, and that there should be a remedy to discourage police from this sort of conduct, this would lead to exclusion of the small quantity of cocaine found at the storage locker and no other part of the evidence. This exclusion would result in acquittal of possession of a small amount of cocaine, but would not affect the disposition of the other charges against Mr Bond or the overall sentence.

D.L. Corbett J.

Released: July 19, 2019