RULING ON APPLICATION

DEL FRATE, J.

[1] The applicant seeks an order staying the proceedings or, alternatively, excluding the statement that he gave following his arrest. The applicant relies on ss. 7 and 10 of the Canadian Charter of Rights and Freedoms.

[2] Counsel have filed an agreed statement of facts that I am attaching as Exhibit A to my ruling. A short summary of what occurred is necessary.

[3] On May 23, 2017, some 25 police officers executed a search warrant at 6C Gasongi Lane in Wikwemikong. They arrested six individuals from two different residences at 23:44 hours. All individuals were then transported to the Wikwemikong facility at 0:44 hours on May 24, 2017.

[4] At 1:03 hours Cst. King advised Sgt. Fox that all prisoners wished to speak to duty counsel. The applicant, along with others, was placed in a cell at approximately 1:05 hours.

[5] At 1:13 hours a strip search of the applicant was conducted. Calls to duty counsel were made at 1:47 hours and at 2:38 hours. The applicant spoke to a Ms. Berckman. The second call was completed at 2:50 hours.

[6] At 4:44 hours, Cst. Peltier again informed the applicant of his right to counsel. The applicant did not wish to speak to counsel and had nothing further to say to the police.

[7] At 4:47 hours, Sgt. Trudeau and Sgt. Fox began to interrogate the applicant. A statement was taken.

[8] At 9:44 hours, Cst. Spry received a call from the WASH court requesting that police permit the applicant to speak with duty counsel. Cst. Spry placed a call to duty counsel at 9:54 hours and placed the applicant in a cell to speak with duty counsel at approximately 10:06 hours.

[9] Throughout, the applicant had not been given access to a telephone book, a list of local lawyers, or access to a telephone, computer, or yellow page listings which would have permitted him to identify a lawyer to whom he wished to speak.

Issue to be determined

[10] Should the statement given by the applicant be excluded as evidence? No argument was made on the stay of proceedings.

Position of the applicant

[11] The applicant submits that s. 10 of the Charter was violated in that the applicant was not informed promptly of the reason for his arrest and, secondly, he was not permitted to retain and instruct counsel without delay and was not informed of that right.

[12] The evidence of the notes of the investigating officers (approximately 25 of them) do not reveal if and when any of them would have informed the applicant of his charges and specifically given him his rights. Although it appears that one of the officers informed all six accused that they were under arrest and would have a right to counsel, there is no evidence that any of them were informed individually.

[13] It is clear that the notes of the officers do not disclose specifically when this particular applicant would have been given his rights and details of what he was charged with.

[14] Accordingly, the informational and implementational duties that are triggered under s. 10 of the Charter have been violated.

[15] Although the arrest was made at approximately 23:44 hours, it was not until 1:47 hours and again at 2:38 hours that the applicant was able to speak to duty counsel. This delay of some two hours does not comply with the requirement “to be informed promptly of the reasons therefor,” and “to retain and instruct counsel without delay and to be informed of that right.”

[16] The applicant relies on the following cases:

R. v. Manninen, [1987] 1 S.C.R. 1233

R. v. Ross, [1989] 1 S.C.R. 3

R. v. Prosper, [1994] 3 S.C.R. 236

R. v. Fountain, 2017 ONCA 596, 136 O.R. (3d) 625

[17] The applicant further submits that the Charter breaches were such that the statement given by the applicant ought to be excluded.

Position of the respondent

[18] The respondent readily and fairly concedes that the note taking by the investigating officers leaves a lot to be desired. However, it is clear that someone did inform the accused individuals, and in particular the applicant, of the right to counsel and of the charges since, eventually, the applicant did end up speaking to duty counsel on two separate occasions. The second time, shortly before he started giving the officers a statement.

[19] Further, the applicant acknowledged that he was given an opportunity to contact counsel, but only after he was strip searched and arrested.

[20] The delay in permitting the applicant to speak to counsel must be considered in the context of the Wikwemikong Police Station, which is equipped to permit only one person at a time to speak to counsel since there is only one secure private room available to do so. Factoring in that there were five other accused at the same time, the delay was reasonable on the exigent circumstances of that particular evening.

[21] Lastly, the respondent submits that should the court find that there was a breach, then it should consider excluding only the statement taken by the police. The remaining evidence, being the cocaine, scale, packaging, bong, and cash seized, should be permitted as evidence since the alleged breach of right of counsel had nothing to do with the discovery of the drugs. At all times, the police had reasonable and probable grounds to seize those drugs and the right to counsel had nothing to do with the discovery of that paraphernalia.

The law and discussion

[22] Counsel have clearly outlined the law as it relates to s. 10(a) and (b) of the Charter. Upon arrest or detention an accused person has the right to be informed of the charges, and also to be in a position to retain and instruct counsel without delay and to be informed of that right. To comply with those requirements, the investigating officer must provide the accused person with the informational and implementational component of those requirements. In other words, the accused must be told what the charges are and also must be given his rights. Second, the arresting officer must make diligent effort to have the accused speak to counsel “without delay.”

[23] In this case, the arrest of these five individuals took place at approximately 23:45 hours. From what limited information can be derived from the notes of all of the participating officers, it appears that, at the very least, one hour and twenty minutes would have lapsed before there is a notation in their books.

[24] As previously mentioned, the recording or lack of recording of what transpired on that particular evening makes it difficult to accept the inferences that the respondent wishes the court to accept. There is no doubt that something was said vis-à-vis the right to counsel and the right to remain silent.

[25] Considering that the onus rests on the respondent to prove beyond a reasonable doubt that in fact all of these individuals were provided with their rights makes it somewhat difficult for a court to ascertain beyond a reasonable doubt what was said about the informational component of the requirement. For instance, if in fact one of the officers did read the rights, was it to all of the accused collectively or individually? Were any questions raised by any of them?

[26] We do know that at least two of the accused asked for specific lawyers. There is no evidence before me of what the others, and in particular the applicant, said if anything.

[27] It is also obvious from the statement given by the applicant that even though he had spoken to two different duty counsel, he still did not understand either the informational or the implementational aspect of the requirements of s. 10(a) and (b).

[28] I conclude therefore that s. 10(a) and (b) of the Charter were breached.

Relief

[29] The next issue is what relief ought to be granted?

[30] The applicant seeks for an exclusion of the statement that was given to the police. In my view that is a reasonable request taking into consideration the factors from R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The breaches were serious enough. The lackadaisical manner in which the officers may have informed the accused and the delay in doing so cannot be condoned. This is especially so considering that there were some 25 officers present and no one recorded what, if anything, was said regarding the arrest and the rights to counsel. It is only after some one hour and twenty minutes that a notation is made by one of the officers.

[31] I do agree with the respondent’s submission that the evidence that was seized at the time of the initial investigation ought not to be excluded since the Charter breach at that point had nothing to do with the finding of the evidence. The items seized were discovered in the course of their initial investigation and without any Charter breaches.

[32] Accordingly, the application is granted in part in that the statement given by the applicant is excluded.

[33] Order to issue as per reasons.

The Honourable Mr. Justice Robert G.S. Del Frate

Released: August 30, 2019

COURT FILE NO.: CR18-0012

DATE: 2019-08-30

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Sidney Osaigbovo

RULING ON APPLICATION

Del Frate, J.

Released: August 30, 2019

R. v. Osaigbovo, 2019 ONSC 4931

Case Summary

RULING ON APPLICATION

Issue to be determined

Position of the applicant

Position of the respondent

The law and discussion

Relief

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 1

Legislation 1