COURT FILE NO.: CR-18-117

DATE: 20191028

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SHELDON CAMPBELL

Defendant

Amber Meiners for the Crown

Kevin Kaczmara for Mr. Campbell

HEARD: October 21-24, 2019

ruling No. 2 on pre-trial applications

boswell j.

OVERVIEW

[1] Sheldon Campbell was arrested in room 315 of the Super 8 Hotel in Barrie, Ontario on October 4, 2016. He was ultimately charged with possession of crack cocaine for the purpose of trafficking, possession of a prohibited weapon (brass knuckles) and several other offences. His trial has just commenced.

[2] The circumstances surrounding Mr. Campbell’s arrest are unusual. He was staying with a lady friend at the Super 8, which is in the south end of Barrie. There is a large commercial parking lot just to the north of the Super 8 and on the north side of the parking lot there is a large LCBO store. On the morning of October 4, 2016 a black male stole a shopping basket full of liquor from the LCBO and was last seen running towards the Super 8.

[3] Four Barrie City police officers converged on the Super 8. The first one to arrive asked the front desk clerk if anyone matching the description of the suspect they were looking for had been seen in the hotel. The clerk said someone matching the description was staying in room 315, which was rented to a female.

[4] The four officers attended at room 315. One knocked on the door. A female answered. All four officers immediately entered the room. Mr. Campbell purportedly darted towards a night table and grabbed a plastic bag containing what appeared to the lead officer to be marijuana and cocaine. He was promptly arrested.

[5] Mr. Campbell was not charged with the LCBO theft because he had nothing to do with it and did not match the description of the suspect, save for the colour of his skin and his gender. His position is that the police had no legal justification for entering his hotel room. The Crown asserts that the police were well within their rights to enter room 315 because they observed, in plain sight, a prohibited weapon – brass knuckles – on a tv stand in the room when the door was first opened.

[6] In this application Mr. Campbell seeks to exclude any of the evidence the police seized from room 315, which includes, but is not limited to, the drugs, the brass knuckles, five cell phones (and their contents) and weigh scales. His application is brought pursuant to s. 24(2) of the Charter. He alleges that his s. 8, 9, 10(a) and 10(b) rights were violated and that the exclusion of the seized evidence is justified under s. 24(2).

[7] Counsel required a prompt ruling from the court given that the application was argued immediately following jury selection. I ruled on October 25, 2019 that the application was dismissed and undertook to provide written reasons for the ruling as quickly as possible. These reasons fulfill that undertaking.

THE PARTIES’ POSITIONS

[8] I will elaborate on the parties’ positions as I address each of the live issues raised by those positions. For now I will state their positions broadly to give some perspective to the application.

[9] Mr. Campbell’s broad position is that the police had no justification for knocking on the door to his hotel room. He contends that they decided to go to room 315 and effect an investigative detention – relating to the LCBO theft – based solely on the fact that a black man occupied that room. Once there, they burst into the room without authorization and cuffed and detained him in an oppressive and degrading way. They kept him on a bed in cuffs for half an hour, wearing only underwear. He says he was not told the reason for his arrest until he arrived at the police station about an hour after he was first detained. Moreover, he was not told about his right to counsel, nor given an opportunity to speak to counsel until after he arrived at the station. Even then he was not given the opportunity to speak to the counsel of his choice.

[10] Mr. Campbell asserts that his s. 8, 9, 10(a) and 10(b) Charter rights were violated and the violations, taken separately or cumulatively, justify the exclusion of any evidence seized from room 315.

[11] The Crown disagrees with the overwhelming majority of Mr. Campbell’s submissions. The Crown does concede that a search of room 315 conducted by the police, purportedly under the common law authority to search incident to arrest, was too broad. The Crown agrees that any items seized from room 315, other than those found in plain view, should be excluded from evidence at Mr. Campbell’s trial.

[12] Otherwise, the Crown’s position is that the police had the right to knock on the door of room 315 in accordance with the implied invitation to knock doctrine. Once the door to the hotel room was opened, Sgt. Henderson could see, in plain view, a set of brass knuckles. This entitled him to enter the room without a warrant to seize the weapon to ensure the safety of the officers and the public and to preserve evidence. Once lawfully inside the room, the police could see drugs in plain view – indeed in Mr. Campbell’s hand – and they were lawfully entitled to seize the drugs and arrest Mr. Campbell.

[13] The Crown contends that Mr. Campbell was immediately told of the reason for his arrest and was immediately informed of his right to counsel and cautioned. It is conceded that he asked to speak to his lawyer of choice and that reasonable efforts were likely not made to contact that counsel. But, in the Crown’s submission, this is a minor breach of Mr. Campbell’s s. 10(b) right and it had little, if any, impact on him. The Crown asks that the application be dismissed.

THE LIVE ISSUES

[14] Mr. Campbell’s application and the positions taken by the parties raise the following issues for determination:

(i) Does Mr. Campbell have standing to advance a claim that his s. 8 right to be secure against unreasonable search and seizure has been infringed? In other words, did Mr. Campbell have a reasonable expectation of privacy in room 315?

(ii) Was the knock on the door to room 315 a search?

(iii) Were the police lawfully entitled to enter room 315 without a warrant?

(iv) Was Mr. Campbell unlawfully detained?

(v) Did the police comply with their obligations under s. 10(a) of the Charter?

(vi) Did the police comply with their obligations under s. 10(b) of the Charter?

(vii) Was the search of room 315 Charter compliant? In other words, was it conducted in a reasonable manner?

(viii) Is a remedy under s. 24(2) justified?

[15] I will consider each issue in turn, providing any necessary factual background as I go along.

DISCUSSION

Issue One: Standing

The Evidentiary Record

[16] The evidentiary record was comprised of, for the most part, oral testimony. Mr. Campbell testified, as did three of the four police officers who attended at the Super 8. The fourth officer was recently concussed and was temporarily off work. A transcript of her preliminary hearing testimony was filed, on consent, as her evidence on the voir dire.

[17] Mr. Campbell testified on the voir dire. He said that he met a woman named Amanda Giles on an internet dating site. They arranged to meet up, for the first time, at the Super 8 Hotel in Barrie on October 4, 2016.[^1]

[18] Mr. Campbell said he arrived at the Super 8 at about 2:00 a.m. Ms. Giles met him in the lobby and escorted him to a room she had rented, number 315. Mr. Campbell said he reimbursed her for one-half of the cost of the room rental.

[19] Check-out time at the Super 8 was 11:00 a.m. According to Mr. Campbell, a housekeeper knocked on the door to room 315 at about that time. He answered the knock and told the housekeeper that they needed a little more time to clean up and get packed. She replied that she had other rooms to work on and would give them another hour.

[20] Mr. Campbell testified that instead of packing up, he and Ms. Giles engaged in sexual activity, then fell asleep. They arose shortly before noon. He was still in his boxer shorts and undershirt when another knock came to the door. This time it was the police and they entered without a warrant or an invitation.

[21] Mr. Campbell’s standing to challenge the police entry into room 315 depends on whether he had a reasonable expectation of privacy in that room. I will turn to that central question next.

The Legal Framework

[22] Section 8 of the Charter of Rights and Freedoms provides as follows:

8. Everyone has the right to be secure against unreasonable search or seizure.

[23] An allegation of an infringement of the s. 8 right triggers a normative inquiry. Canadians have certain expectations of privacy in the free and open society in which we live. A normative inquiry is an evaluative one. It is an assessment of what is desirable in our society and what is not. The inquiry invariably leads to a choice to prefer, in a given set of circumstances, one set of interests over another.

[24] With respect to inquiries under s. 8 of the Charter, the conflicting interests involved are those of the individual, in being left alone, and those of the state, in detecting and prosecuting crimes. The s. 8 inquiry thus comes down to an assessment of “whether in a particular situation, the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement”: Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 at pp. 159-160.

[25] In Canadian jurisprudence, the means of balancing the competing interests under s. 8 involves two inquiries. See R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128 at para. 45. The first inquiry is whether the individual claimant has a reasonable expectation of privacy in the circumstances. The second is whether the search in issue was conducted in a reasonable manner.

[26] The question of standing engages the first line of inquiry.

[27] Section 8 protects reasonable expectations of privacy. A reasonable expectation of privacy exists if a person subjectively expected privacy in the circumstances and that expectation was objectively reasonable. See R. v. Edwards, as above, at para. 45; R. v. Marakah, 2017 SCC 59 at para. 10; and R. v. Jones, 2017 SCC 60 at para. 11. Another way of saying this is that an “expectation of privacy will attract Charter protection if reasonable and informed people in the position of the accused would expect privacy.” See R. v. Cole, 2012 SCC 53 at para. 35.

[28] Whether Mr. Campbell had a reasonable expectation of privacy in room 315 must be determined in the totality of the circumstances. See R. v. Edwards, as above, at para. 45; R. v. Marakah, as above, at para. 10; and R. v. Jones, as above, at para. 13. Again, the analysis is normative and not categorical. In other words, when considering all the surrounding circumstances, the court must ask whether a privacy claim ought to be recognized in our free, open and democratic society. See R. v. Le, 2019 SCC 34, at para. 136.

[29] It must also be kept in mind that expectations of privacy are not an all or nothing proposition. As former Chief Justice McLachlin observed in R. v. Marakah, as above, at para. 29, a reasonable expectation of privacy may exist on a spectrum or in a hierarchy of places.

[30] In R. v. Tessling, 2004 SCC 67 at para. 22, Justice Binnie provided the following description of the hierarchy of places where reasonable expectations of privacy may, while diminished or qualified, still remain:

The original notion of territorial privacy…developed into a more nuanced hierarchy protecting privacy in the home, being the place where our most intimate and private activities are most likely to take place … in diluted measure, in the perimeter space around the home, in commercial space, in private cars, in a school, and even, at the bottom of the spectrum, a prison. Such a hierarchy of places does not contradict the underlying principle that s. 8 protects "people, not places", but uses the notion of place as an analytical tool to evaluate the reasonableness of a person's expectation of privacy. (Internal citations removed).

Discussion

[31] The notion that Mr. Campbell had no reasonable expectation of privacy when occupying room 315 at the Super 8 is, in my view, unsupportable and contrary to Supreme Court authority. See R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36.

[32] A hotel room is a “home away from home”. When a couple occupies a hotel room, it is, in effect, their bedroom, their bathroom, their den and, at times, their kitchen, all in one contained area. It is a proxy for their personal residence. They may – and I think typically do – engage in a wide variety of intimate, personal and private activities while in the room. I need not enumerate them. When one rents a hotel room, the consideration for the booking fee is the temporary use of a personal and private enclave away from home.

[33] The general nature of hotel rooms and the uses to which they are typically put mean, in my view, that it will be a rare case where the occupants of a hotel room do not have a reasonable expectation of privacy in the rented room. This is not such a case.

[34] In the circumstances here, the room was not registered to Mr. Campbell, but I do not consider that an important factor. It would be nonsensical, in my view, to hold that if a couple booked a hotel room under just one name, agents of the state could not freely enter the room if the booking partner was present, but could do so if the non-booking partner was alone in the room. In my view, both occupants of the room share a similar, if not equal, privacy interest.

[35] In this case, Mr. Campbell and Ms. Giles shared the room. They slept together in it. They engaged in sexual activity together within its confines. And Mr. Campbell was in his underwear in the room at the time the police attended. He and Ms. Giles undoubtedly expected – and were entitled to – privacy in that space.

[36] Even if Mr. Campbell was more properly characterized as an overnight guest of Ms. Giles in room 315, his privacy interest was not extinguished. He may have had to accept that Ms. Giles might have invited others into the room, including, perhaps, agents of the state. But, as the majority held in R. v. Le, as above, at para. 136, “it may still be objectively reasonable for [him] to expect that the state will not enter uninvited.”

[37] Occupants of a hotel room may have a somewhat diminished expectation of privacy given that, while out of the room, housekeeping may attend to clean and/or refresh the room. That occurrence is usually preventable by hanging a “do not disturb” card on the door handle. But it remains the case that hotel staff do have a key that permits access to the rented room. That said, a diminished expectation is still an expectation. If it is objectively reasonable, it is entitled to s. 8 protection.

[38] Crown counsel urged the court to conclude that any reasonable expectation of privacy was extinguished after the check-out time of 11:00 a.m. After that, the Crown submitted, Mr. Campbell had no legal right to occupy or use room 315. For this proposition the Crown placed significant reliance on the decision of Henderson J. in R. v. Hudon-Barbeau, 2014 ONSC 7138.

[39] In Hudon-Barbeau, officers of the Niagara Regional Police Service conducted a warrantless search of a hotel room occupied by the accused at a Marriott Hotel in Niagara Falls. They located a prohibited, loaded firearm within the room. The accused applied for an order excluding the firearm from evidence at the trial against him. He was unsuccessful. Henderson J. found that the accused had no reasonable expectation of privacy in the room.

[40] Central to the decision of Justice Henderson was that Mr. Hudon-Barbeau had significantly overheld his room beyond check-out time. At the Marriott in issue, check-out time was noon. The accused refused or neglected to vacate his room. He argued with hotel staff about being able to stay another night. He was told the hotel was booked, but was given an accommodation to 3:00 p.m. to vacate his room. In response, he told the hotel staff that he was a member of the Hell’s Angels and that they would be sorry if they touched his belongings. He then went out for the afternoon. At about 4:00 p.m., while other guests were waiting for the room, hotel staff went into it to remove the accused’s belongings. They noticed, amongst other things, a loaded handgun in an unlocked safe. They contacted the police. Two officers attended and went into the room to inspect the weapon. They were in the room perhaps one minute, after which they secured it and arranged for a search warrant application to be prepared.

[41] While accepting that a person may enjoy a reasonable expectation of privacy in a hotel room or a rented residence, Henderson J. found that the accused had no right to use, occupy or possess the Marriott room after 3:00 p.m. He had, in fact, been expressly told that if he was not out by that point in time, hotel staff would enter the room and remove his belongings. He could not, in those circumstances, have had an objectively reasonable expectation of privacy in the room after 3:00 p.m.

[42] At the Barrie Super 8, check-out time was 11:00 a.m. But Mr. Campbell testified, and I accept, that the housekeeper gave them an indulgence of an hour to pack up and vacate the room. The police arrived at the door, coincidentally, just at about noon.

[43] While I accept that Mr. Campbell technically had no legal right to use or occupy room 315 after noon on October 4, 2016, I do not consider it reasonable to conclude that any expectation of privacy he had in that room immediately evaporated exactly at noon. I cannot, in any event, even say, on this evidentiary record, that the clock had struck noon before the police entered the room.

[44] In my view, any privacy interest Mr. Campbell had in room 315 would quite rapidly diminish after noon, but this is not a situation like that in Hudon-Barbeau where the overholding was four hours after normal check-out, with no end in sight, before hotel staff entered the room. It was five hours after normal check-out when the police entered that room and well after the point when hotel staff had indicated they would enter the room to clean it out.

[45] In summary, I conclude that subjective interests in privacy held by the occupants of rented hotel rooms are ones that should generally be recognized as objectively reasonable in our free, open and democratic society. In the specific circumstances of this case, I find that Mr. Campbell had a subjective expectation of privacy in room 315 and that his expectation was objectively reasonable. In the result, he has standing to challenge the police entry into that room.

Issue Two: The Knock was not a Search

The Evidentiary Record

[46] Police Constable Carolyn Brown appears likely to have been the first officer to respond to the LCBO theft call. She said that she had answered a “BOLO” (be on the lookout for) call that went out over the police radio, with the description “male, black, five foot nine, 40 to 50 years old, blue Captain America t-shirt”. She attended at the store, spoke with staff and watched the surveillance video. She took a still photo of the suspect. She described him as a black male, approximately 5’9” tall, with an athletic build.

[47] Three other officers also responded to the call, in turn, including Sgt. Doug Henderson, PC Josh Ford and PC John Lamont.

[48] The LCBO suspect was said to have been last seen running south in the direction of the Supert 8 Hotel and/or an East Side Mario’s, which abuts the south side of the Super 8.

[49] PC Lamont decided to check the Super 8 for any signs of the suspect. He spoke to the front desk clerk and asked if anyone matching the description of the suspect (specifically, “male, black”) had entered the hotel. He said he was told that someone matching that description was staying in a room on the third floor. He was given the room number and the name of the woman who rented the room – Amanda Giles.

[50] All four officers eventually converged on the Super 8 Hotel. Someone looked into the name, Amanda Giles, and Sgt. Henderson came to learn that she was associated with someone named Kevin Mason. Mr. Mason was well-known to Sgt. Henderson as being deeply involved in the drug scene and he was heavily involved in crime to support his habit. This fact supported, in Sgt. Henderson’s mind, the theory that someone actively committing LCBO thefts could be associated with room 315.

[51] The officers determined that they would go up and knock on the door to room 315 to see if the LCBO suspect was in the room.

The Legal Framework

[52] No one wants to live in a police state. At the same time, no one wants to live in a society where crime is rampant and unchecked. The police need to have reasonable powers to detect and investigate crimes.

[53] Section 8, as I have alluded to, serves the central purpose of protecting the privacy of individuals against intrusive conduct of the state. In Canada, it is only where the conduct of state actors intrudes upon an individual’s reasonable expectation of privacy that s. 8 is engaged. In other words, a “search” for the purposes of s. 8 jurisprudence, begins at the point when a reasonable expectation of privacy is intruded upon. See R. v. Evans, [1996] 2 S.C.R. 8 at para. 12. In this instance, Mr. Campbell asserts that the act of the police of knocking on the door to room 315 intruded on his reasonable expectation of privacy and was, therefore, a search.

[54] Canadian common law recognizes an “implied invitation to knock”. It is a recognition grounded in common sense. Without it, anyone approaching the door of a residence to knock would be considered a trespasser. This would include, for example, a neighbour’s child looking to invite a friend out to play; a Girl Guide selling cookies as a fundraiser; a political campaigner trying to drum up votes; a courier company delivering a parcel; and the police, canvassing door to door looking for a missing child.

[55] Our law deems the occupant of a residence to grant the public a limited license to approach the door of the residence and knock, provided of course that the knocker is on legitimate business. See R. v. Evans, as above, at para. 13. This license extends to the police, just as much as any other member of the public.

[56] The license is limited in scope, however. It certainly does not authorize entry into a residence. It extends only so far as to permit the knocker to communicate with the occupant(s) of the residence. See R. v. MacDonald, 2014 SCC 3, at para. 26.

[57] Sometimes when the police knock on a residential door they intend to do more than just communicate with the occupants of the residence. The Supreme Court instructed in Evans that trial courts should examine the intent of the police when assessing whether their approach to the door of a residence is authorized by the implied invitation to knock. (Evans, para. 18). In particular, if the intent of the police is not only to communicate with the occupants, but to gather evidence against them, then they cannot rely on the implied license.

[58] In Evans, the police were found to have had a legitimate purpose of communicating with the residents in question, but a subsidiary purpose as well. They believed the occupants of the residence were growing marijuana in the home. Growing marijuana emits an unmistakably skunky smell. The police intended to “sniff” at the door to determine if they could smell growing marijuana. As Sopinka J. held, “the occupiers of a dwelling cannot be presumed to invite the police (or anyone else) to approach their home for the purpose of substantiating a criminal charge against them.” (Evans, para. 16).

Discussion

[59] What distinguishes this case from most other cases involving the implied invitation to knock is that the police did not need to enter upon the defendant’s property to arrive at the door to room 315. Until they actually arrived at the door to the room they had not intruded upon any area in which Mr. Campbell could claim a reasonable expectation of privacy.

[60] That said, the actual knock on the door could constitute the first step of a search of room 315, if the police intended to do more than communicate with the occupants of that room. I am not satisfied that they did. To the contrary, I am satisfied that the intent of the police was to communicate with the occupants of that room regarding the LCBO suspect. The plan was simply to see if the suspect was there. I accept Sgt. Henderson’s evidence that he had no intention of looking through the room. I also accept that it was not necessary for him to close his eyes when Ms. Giles opened the door. The fact that he saw brass knuckles in plain view does not change the nature of the knock from a means of communicating to a means of searching.

[61] Defence counsel submitted that the police had an obligation to announce themselves at the time of the knock. I am not aware of any authority which would have compelled them to have done so.

[62] I am not satisfied, in the circumstances of this case, that the non-intrusive act of knocking on the door to room 315 constituted a breach of Mr. Campbell’s s. 8 Charter right. I will move on, therefore, to what is arguably the most controversial aspect of the application – the police entry into room 315.

Issue Three: The Entry was not a Breach of s. 8

The Evidentiary Record

[63] We have arrived at the point in the narrative where the police have knocked on the door to room 315. I note that PC Brown’s evidence is that it was actually a housekeeper who knocked on the door to room 315, not the police. She is the only one, however, who had that recollection. None of PC Ford, PC Lamont and Sgt. Henderson recalled a housekeeper attending at the door with them.

[64] I find that it was the police who knocked and not a housekeeper. The presence of a housekeeper with the four police officers does not, in my view, fit well with the probabilities of the case as a whole.

[65] The evidence of all of the witnesses who testified on the voir dire was otherwise consistent: the police entered immediately after the knock. Sgt. Henderson entered first, followed immediately by PC Ford and PC Lamont. The latter two officers were not, at first, aware of the reason why Sgt. Henderson entered the room. They followed him in for officer safety reasons.

[66] Sgt. Henderson testified that Ms. Giles opened the door wide when she answered it. He said that when the door was opened, he could immediately see into the right side of the room. On that side there was tv table and on that tv table he could see a set of brass knuckles, in plain view. He said that, at the same time, he saw Mr. Campbell dart to the right, out of his view. The combination of the presence of the brass knuckles and Mr. Campbell’s sudden movement created an exigent circumstance that Sgt. Henderson believed he needed to act on in order to secure the safety of the officers, the occupants of room 315, and of other people present in the hotel.

[67] PC Ford testified that he followed Sgt. Henderson into the room. As he did so, he observed the brass knuckles on the tv stand. Sgt. Henderson moved past them and interacted immediately with Mr. Campbell. PC Ford said he grabbed the brass knuckles and put them in his pocket to prevent anyone else having access to them.

[68] Mr. Campbell testified, to the contrary, that there were no brass knuckles on the tv stand and that he froze when he saw the police officers.

The Legal Framework

[69] As Evans instructs, where the actions of state actors intrude upon a reasonable privacy interest of an individual, those actions constitute a search. There is no dispute that the entry of the police into room 315 constituted a search.

[70] In this instance, because the search was warrantless, the Crown has the burden of establishing, on a balance of probabilities, that the search was reasonable. See R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 at para. 22; and R. v. Mann, 2004 SCC 52 at para. 36. A search is reasonable if (a) it is authorized by law; (b) the law itself is reasonable; and (c) the manner in which the search was carried out was also reasonable. See R. v. Collins, as above, at para. 23. While all three of the Collins factors are at issue, the principal dispute focuses on whether the entry was authorized by law.

[71] The Crown submits that the police entry into room 315 was authorized by a valid police power, namely the common law power to conduct a “safety search”.

[72] Safety searches were the subject of Supreme Court scrutiny in R. v. MacDonald, as above. In that case, Justice LeBel described safety searches as typically reactionary in nature. They are typically “responses to dangerous situations created by individuals to which the police must react ‘on the sudden’”. (Para. 32).

[73] MacDonald establishes a two-part test for assessing whether police conduct that constitutes a prima facie infringement on an individual’s liberty falls within an officer’s valid powers. It may be more accurate to say that MacDonald imports a two-part test from R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.). The first part of the test requires the court to determine whether the police conduct falls within the general scope of a police duty imposed by law. The second step requires the court to determine if the police conduct was, in the circumstances, a justifiable exercise of the powers associated with any such duty.

[74] Police conduct will constitute a justifiable exercise of a recognized duty where the court is satisfied that any interference with an individual’s liberty was reasonably necessary. The determination of reasonable necessity involves a consideration and balancing of the following three factors:

(i) The importance of the performance of the duty to the public good;

(ii) The necessity of interference with individual liberty for the performance of the duty; and,

(iii) The extent of the interference with individual liberty.

(MacDonald, para. 37).

Discussion

[75] It is important, when considering decisions made by police officers in dynamic situations, not to scrutinize them as though the officer had the luxury of the time and comfort I have as I sit at my desk analyzing those decisions and the actions that followed.

[76] Police officers are regularly confronted with dangerous situations. They regularly need to make immediate decisions on imperfect information. The reasonableness and necessity of their actions must be considered in the context in which those actions took place.

[77] I have conflicting evidence as to the context in which Sgt. Henderson’s actions occurred. There is no doubt that he entered room 315 immediately after the door was opened. That much is agreed. He testified that he did so because he saw a prohibited weapon – a set of brass knuckles – on the tv stand and, at the same time, saw Mr. Campbell dart to his right, behind a wall. He did not know what Mr. Campbell was moving towards. He considered the situation to be dangerous to him, to the other officers and to the public, and he acted immediately.

[78] Mr. Campbell testified, to the contrary, that there were no brass knuckles on the tv stand and that he did not move at all when the officers came to the door.

[79] On these two critical points, I accept Sgt. Henderson’s evidence and reject the evidence of Mr. Campbell.

[80] Sgt. Henderson’s evidence regarding the brass knuckles is corroborated by PC Ford, who said he followed Sgt. Henderson into room 315 and immediately noticed the weapon on the tv stand. He picked it up and put it in his pocket. There is no question that brass knuckles were seized from that room.

[81] The defence theory is essentially that Sgt. Henderson burst into the room for no reason other than perhaps that he thought he was nabbing the LCBO suspect. When he was embarrassed to find that Mr. Campbell did not match the description of the suspect, he – supported by the other officers in attendance – fabricated a story that he had seen brass knuckles and acted out of a concern for officer and public safety. This theory, with respect, is not consistent with common sense.

[82] I do not accept that Sgt. Henderson made a grave error in identification, then immediately found a way to extricate himself from the embarrassment of it, by fortuitously locating a prohibited weapon in the room.

[83] I accept Sgt. Henderson’s evidence not only because it is corroborated by the testimony of PC Ford and the hard evidence of the brass knuckles, but because it makes sense.

[84] I find that Mr. Campbell was not being truthful when he said there were no brass knuckles on the tv stand. And given that finding, I do not consider him a trustworthy historian about what went on in room 315. I accept Sgt. Henderson’s evidence that he saw Mr. Campbell make a quick move to his right, out of the line of sight of the officers at the door.

[85] Again, Sgt. Henderson’s evidence was corroborated by PC Ford who said that when the door was opened he saw Mr. Campbell dash between two beds out of their view. I found PC Ford to be a particularly forthright witness who admitted that he personally made a number of mistakes in relation to this event, which I will come to shortly. I have confidence that he was being forthright and truthful when he said he saw Mr. Campbell quickly move out of the view of the police.

[86] There may be a number of explanations for why Mr. Campbell moved. He was standing in the middle of the room in his underwear in full view of four police officers when the door was open. He may have moved purely for reasons of modesty. Or he may have moved because he was concerned about whether his presence in the hotel room was compliant with his bail recognizance. Or he may have been attempting to hide drugs that were otherwise out in the open. One could no doubt speculate about many other possibilities. None of them are of any moment. What is important is how his actions may reasonably have been interpreted by the officers at the door, particularly Sgt. Henderson.

[87] Having made these important factual findings, I will return to the Collins factors. Recall that the onus is on the Crown to prove that (i) the search was authorized by law; (ii) the law was reasonable; and (iii) the manner of the search was reasonable. I will address each factor in turn.

(i) Were the actions of the police authorized by law?

[88] The short answer to this question is yes. Focusing on the MacDonald/Waterfield test, I make the following findings:

(a) The actions of Sgt. Henderson and the officers who accompanied him, fall within the common law police duty to protect life and safety. The first branch of the test is satisfied; and,

(b) I further find that the actions of the police were reasonably necessary to carry out that particular duty. The second branch of the test is satisfied.

In the result, the actions of the police were authorized by law.

[89] I will expand on my findings with respect to the second part of the MacDonald/Waterfield test. Recall that “reasonable necessity” involves a consideration and balancing of (i) the importance of the police duty to the public good; (ii) the need to interfere with individual liberty; and (iii) the extent that individual liberty was interfered with.

[90] Again, it must be kept in mind that the decisions and actions of the police – and in particular Sgt. Henderson – occurred in a very rapidly changing and dynamic situation.

[91] The importance of protecting life and safety cannot be understated. It is central to the public good. In the circumstances of this case, I accept that Sgt. Henderson believed there to be an imminent threat to the safety of the police and the public more generally. In my view his belief was objectively reasonable in the circumstances.

[92] I am further of the view that it was necessary for Sgt. Henderson to infringe on the liberty of the occupants of room 315 to address the safety threat. With the benefit of hindsight, and further information, we now know that Mr. Campbell was not moving towards a gun or any other weapon on the far side of the room, out of the view of the police. One might now, with the benefit of hindsight, say that Sgt. Henderson had other options apart from bursting into the room. He might simply have asked Ms. Giles to hand him the brass knuckles for instance.

[93] But Sgt. Henderson did not have the benefit of hindsight at the time. He saw a prohibited weapon in plain view and a male immediately dart out of view when he observed that there were police at the door. In my view, Sgt. Henderson reasonably inferred that Mr. Campbell could be reaching for another weapon. He immediately and reasonably assessed that there was a rapidly developing safety issue and he did what was reasonably necessary to address it. In short, he had reasonable grounds to believe there was an imminent threat and the search of room 315 was necessary to eliminate that threat.

[94] The extent of the infringement on individual liberty in this case is difficult to measure because circumstances continued to quickly evolve once the officers entered room 315. In particular, once inside the room, Sgt. Henderson immediately observed, in plain view, a bag that contained marijuana and cocaine. Mr. Campbell was reaching for, or had taken possession of, that bag. Sgt. Henderson immediately placed Mr. Campbell under arrest for possession of a controlled substance.

[95] A safety search is lawful only to the extent that it serves a protective function. But I am left to speculate about what would have happened had there been no other illegal activity observed by the officers when they entered the room. I have to conclude, in the circumstances, that the evidence is neutral with respect to the third factor of the second part of the MacDonald/Waterfield test.

[96] On balancing the three factors of the second part of the MacDonald/Waterfield test, I conclude that the entry into room 315 was reasonably necessary. In the result, and given that both parts of the MacDonald/Waterfield test are met, the entry into room 315 was a valid safety search and was authorized by law.

(ii) Was the law itself reasonable?

[97] Again, the short answer to this question is yes. As LeBel J. held in MacDonald, the law regarding safety searches is a well-established common law principle and is reasonable.

(iii) Was the search carried out in a reasonable manner?

[98] I find that the safety search was carried out in a reasonable manner. As I will set out below, the police conducted a search of room 315 incident to Mr. Campbell’s arrest. That search was overbroad and not reasonable. The Crown concedes as much. But in the unusual circumstances of this case, I conclude that the safety search was carried out in a reasonable manner. The police entered the room and immediately seized the brass knuckles. That was the end of the safety search. Everything that developed thereafter was related to and a consequence of the illicit drugs seen in plain view and seized by the police.

[99] I am satisfied that the police entry into room 315 was initially a safety search. It was authorized by a reasonable law and carried out in a reasonable manner. It did not violate Mr. Campbell’s s. 8 Charter right.

Issue Four: Mr. Campbell was not Arbitrarily Detained

[100] Mr. Campbell was arrested within seconds of the police entering into room 315. He was not otherwise detained. Unless Mr. Campbell’s arrest was unlawful, then he was not arbitrarily detained.

[101] Section 495(1) of the Criminal Code provides:

495 (1) A peace officer may arrest without warrant

(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;

(b) a person whom he finds committing a criminal offence; …

[102] Sgt. Henderson found Mr. Campbell in possession of marijuana and cocaine. He had reasonable grounds to arrest him. As such, I find Mr. Campbell’s arrest to have been lawful. In turn, I find that he was not arbitrarily detained.

Issue Five: The Reasons for the Arrest were Provided Promptly

The Evidentiary Record

[103] Sgt. Henderson testified that when he entered room 315, he saw Mr. Campbell by a nightstand. There was a bag on the nightstand containing drugs. Mr. Campbell grabbed the bag. Sgt. Henderson took it out of his hand. He said that Mr. Campbell uttered something about the drugs being for personal use only. He immediately arrested Mr. Campbell for possession of a controlled substance. He said he told him he was under arrest for possession of a controlled substance.

[104] PC Ford completed the physical arrest of Mr Campbell, by placing him in handcuffs.

[105] Mr. Campbell denied that he grabbed for any bag of drugs. He said, in direct examination, that he was told only that he was arrested for possession. The police did not even clarify what he allegedly possessed. In cross-examination he said that he was not even told directly that he was under arrest for possession. He said he overheard an officer say that to PC Ford as he was being escorted to PC Ford’s police car. He could not remember who the officer was who said that to PC Ford. Later he said that he overheard Sgt. Henderson tell PC Ford that he was under arrest for possession. Finally, he said he did not know what he was under arrest for until he got to the police station.

The Legal Framework

[106] Section 10(a) of the Charter provides that, on arrest or detention, everyone has the right to be informed promptly of the reasons for the arrest or detention.

[107] Not only is everyone entitled to be promptly informed of the reasons for an arrest or detention, our law accepts that no one is obliged to submit to an arrest if they do not know the reasons for it. See R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869 at para. 31.

[108] Section 10(a) works in conjunction with s. 10(b) which provides that everyone has the right, on arrest or detention, to retain and instruct counsel without delay and to be informed of that right.

[109] It is recognized that the section 10(b) right to counsel can only be meaningfully exercised if the person under arrest understands the extent of his jeopardy. “Jeopardy” refers, of course, to what’s at stake. In other words, it includes, in the long term, the individual’s ultimate risk of conviction and punishment and, in the short term, the risk of self-incrimination.

[110] As Doherty J.A. observed in R. v. Sawatsky (1997), 1997 CanLII 511 (ON CA), 35 O.R. (3d) 767,

Knowledge of the purpose of the detention is so important to the informed exercise of the right to counsel that the police are constitutionally required by s. 10(a) of the Charter to promptly inform a detained person of the reasons for her detention. Where there is more than one reason for a detention, they must all be disclosed.

Discussion

[111] I find that Mr. Campbell was promptly informed of the reasons for his arrest and that there was no breach of s. 10(a) of the Charter.

[112] Mr. Campbell was informed of the reasons for his arrest in two ways. First, the circumstances of his arrest would have provided him with ample information about why he was arrested. He had a bag of illicit drugs in his hand. The math is pretty simple.

[113] Second, I find that he was expressly told that he was under arrest for possession of a controlled substance. I accept Sgt. Henderson’s evidence that he advised Mr. Henderson of that fact immediately upon arresting him. It is consistent with the probabilities of the circumstances as a whole. Moreover, it was confirmed by Mr. Campbell in his answers to his own lawyer’s questions.

[114] I reject Mr. Campbell’s testimony that he did not grab for the bag of drugs and that he was not told of the reason for his arrest until he got to the police station. I do so because, as I indicated above, I did not generally find him to be a reliable historian. In addition, his evidence on the s. 10(a) issue was internally inconsistent.

[115] I find that Mr. Campbell was told he was under arrest for possession of a controlled substance. He was not told specifically what that substance was. I agree with defence counsel’s observation that there can be significantly different consequences if the controlled substance is, for instance, fentanyl, as opposed to marijuana. But having said that, in my view, Mr. Campbell was provided with sufficient information to identify his jeopardy and to enable him to meaningfully exercise his s. 10(b) right to retain and instruct counsel.

Issue Six: Three Breaches of the Right to Counsel

The Evidentiary Record

[116] It is common ground that Mr. Campbell was read his right to counsel and he was cautioned that he did not have to say anything to the police, but if he chose to say anything, it could be used in evidence against him. The live question, however, is when his right to counsel and caution were read to him.

[117] I heard three conflicting versions in the course of the voir dire.

[118] Sgt. Henderson arrested Mr. Campbell. He admitted that he could not recall actually giving Mr. Campbell his right to counsel. His notebook entries with respect to this incident reflect nothing about the right to counsel being given. He believed, however, that he had given Mr. Campbell his right to counsel based on basic deductive reasoning. In particular, he reasoned as follows: He always advises accused persons of their right to counsel when he arrests them. He arrested Mr. Campbell. Therefore he advised him of his right to counsel.

[119] PC Ford testified that he completed the arrest of Mr. Campbell. He cuffed him and had him sit on the side of one of the beds in the hotel room. Mr. Campbell remained in that position for some 30 minutes, commencing, according to PC Ford, at noon. PC Ford candidly admitted that he did not inform Mr. Campbell of his right to counsel while in the hotel room. He said he was new at the job and this was his first arrest of this magnitude. He was waiting for instructions from a more senior officer.

[120] According to PC Ford, he took Mr. Campbell to his cruiser at 12:30 p.m. and at that time read him his right to counsel and caution. Mr. Campbell said he understood the information provided to him and that he wished to speak to his lawyer, Mr. David Butler.

[121] Mr. Campbell testified that he did not receive his right to counsel and caution until he arrived at the police station at 12:50 p.m. and was paraded before the booking sergeant.

[122] Once at the station, PC Ford looked for a contact number for Mr. Butler. His search was limited to checking in the lawyer’s phone book. He did not see Mr. Butler’s name. He advised Mr. Campbell that he could not locate Mr. Butler’s number and offered him an opportunity to speak to duty counsel instead. Mr. Campbell did so.

The Legal Framework

[123] Section 10(b) of the Charter serves an incredibly important purpose. That purpose was described by former Chief Justice Lamer in R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173 where he said as follows, at para. 16:

The purpose of the right to counsel guaranteed by s. 10(b) of the Charter is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most important, to obtain advice on how to exercise those rights and fulfil those obligations: R. v. Manninen [citations omitted]. This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him- or herself. Accordingly, a person who is "detained" within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty ...

[124] It is well-settled that s. 10(b) imposes three distinct duties on the police when they arrest or detain a person:

(i) To inform the person of his or her right to retain and instruct counsel without delay. The police are further obliged to inform the detainee of the existence and availability of legal aid and duty counsel. This duty is generally referred to as the informational duty;

(ii) To provide the person with a reasonable opportunity to speak to counsel, should he or she indicate a desire to do so. This duty is generally referred to as the implementational duty; and,

(iii) To refrain from eliciting evidence from the person until he or she has had the reasonable opportunity to speak to counsel. This duty is generally referred as the duty to hold off.

See R. v. Bartle, as above, at para. 17.

[125] The informational duty must be discharged without delay. The Supreme Court has left no doubt about how the phrase “without delay” is to be interpreted. It means “immediately”. Former Chief Justice McLachlin and Justice Charron held as follows in R. v. Suberu, 2009 SCC 33, at paras. 41-42:

…In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately". If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises.

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

Discussion

[126] I find that Mr. Campbell was read his right to counsel and cautioned at roughly 12:30 p.m. on October 4, 2016, some 30 minutes after he was arrested. His s. 10(b) rights were abridged because there was no justification for that delay.

[127] I am not prepared to accept that Sgt. Henderson provided Mr. Campbell with his right to counsel at the moment of his arrest. It is possible that he did, but I think it unlikely. First, he had no recollection of having done so. Second, he did not make a note of having done so in his notebook. Third, PC Ford understood that it was his responsibility to provide Mr. Campbell with his right to counsel and caution and he did so, admittedly belatedly, when he took Mr. Campbell to his cruiser. Fourth, it would appear that Mr. Campbell intended to exercise his right to counsel. Had Sgt. Henderson informed him of his right to counsel immediately on arrest, I expect that Mr. Campbell would have expressed his interest in speaking with counsel. It strikes me as unlikely that Sgt. Henderson, a veteran police officer, would have left Mr. Campbell sitting in the hotel room for 30 minutes, without doing anything to facilitate his access to counsel.

[128] I am similarly not prepared to accept Mr. Campbell’s evidence that he was not informed of his right to counsel until he got to the police station. As I have said, I did not find him to be a reliable historian.

[129] I do accept PC Ford’s evidence on this point. As I have noted, I found him to be a sincere and candid witness and I have no reason to reject his evidence on this point.

[130] I find that Mr. Campbell’s s. 10(b) right was breached in two further respects:

(i) Sgt. Henderson breached the duty to hold off by asking Mr. Campbell a number of questions while he sat cuffed in the hotel room waiting for transportation to the station. One such question was what property in the room belonged to Mr. Campbell. Mr. Campbell answered that basically everything on one particular side of the room was his. This was clearly a potentially incriminating question and should not have been asked until Mr. Campbell had been given the reasonable opportunity to speak to counsel; and,

(ii) PC Ford made insufficient efforts to contact Mr. Campbell’s counsel of choice. Mr. Campbell, being in the custody of the police, had no means of reaching out to his counsel. The police assumed that responsibility. And in doing so they must make reasonable efforts to contact counsel of choice. See, for instance, R. v. Maciel, 2016 ONCJ 563. I will not attempt to define what will constitute reasonable efforts. It will undoubtedly be contextually driven. But in an age when incalculable information is available on the internet, I would expect, at the very least, a Google search.

Issue Eight: The Search of Room 315 was not Authorized by Law

[131] Following Mr. Campbell’s arrest, Sgt. Henderson, and perhaps other officers, conducted a thorough search of room 315. They looked through all of the personal belongings of Mr. Campbell and Ms. Giles and they seized a number of items.

[132] Sgt. Henderson justified the search on two alternate grounds:

(i) He said that the occupants of the room had no reasonable expectation of privacy in the room because they had exceeded the check-out time and had no lawful entitlement to be in the room; and

(ii) He said he was entitled to conduct the search as incident to Mr. Campbell’s arrest.

[133] At the time Sgt. Henderson testified, he was unaware that I had already ruled that the occupants of room 315 did have a reasonable expectation of privacy in the room.

[134] The Crown concedes, I think fairly, that the police clearly exceeded the limits of a search incident to arrest. They are voluntarily excluding any evidence seized as a result of that search. I need not say anything more about this search, save in connection with the defence request to exclude evidence, which I turn to now.

Issue Nine: The Evidence Should not be Excluded

The Legal Framework

[135] Section 24(2) of the Charter provides as follows:

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.

[136] In R. v. Grant, 2009 SCC 32, at para. 71, the Supreme Court provided trial judges with direction in terms of the analysis to be applied to applications brought under s. 24(2) of the Charter:

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

[137] Grant instructs that the focus of the exclusionary rule should be on the long-term reputation of the justice system. The s. 24(2) analysis is not about punishing the police for any perceived misbehaviour nor is it about deterring future Charter violations.

Discussion

[138] I have found the following breaches of Mr. Campbell’s Charter-protected rights:

(i) A breach of the informational component of s. 10(b);

(ii) A breach of the implementational component of s. 10(b);

(iii) A breach of the duty to hold off under s. 10(b); and,

(iv) A breach of Mr. Campbell’s right to be free from unreasonable search and seizure under s. 8 in relation to the search of room 315 incident to his arrest.

[139] To support a request to exclude evidence under s. 24(2) of the Charter, an applicant must satisfy the court, on a balance of probabilities, that the evidence sought to be excluded was (1) obtained in a manner that infringed a Charter-protected right; and (2) the admission of the evidence would bring the administration of justice into disrepute.

[140] The dispute here centered on the second requirement. That said, it is worth commenting on the first, because the Crown is not seeking to introduce any of Mr. Campbell’s utterances, nor any of the evidence seized during the search incident to arrest. In other words, there is no evidence the Crown seeks to tender that one might say is causally linked with the breaches I have found.

[141] Defence counsel argued that it is unnecessary for the court to find a causal link between a breach and evidence obtained by the police as a prerequisite to an exclusionary order. He is correct. In R. v. Pino, 2016 ONCA 389, the Court of Appeal held that impugned evidence may meet the “obtained in a manner” requirement, even without a causal connection to a Charter breach, provided the evidence and the breach are part of the same transaction or course of conduct and provided the connection is neither too tenuous or too remote.

[142] I am prepared to accept, for the sake of argument, that the impugned evidence (i.e. the drugs, scales, cell phones and brass knuckles) has both a temporal and contextual connection to the breaches I have found. I find, however, that its admission into evidence would not bring the administration of justice into disrepute when the traditional Grant factors are considered. I will turn to these factors now.

The Seriousness of the Breaches[^2]

[143] The task of the court at this stage of the analysis is to “situate the conduct on a scale of culpability”. See R. v. Le, as above, at para. 143. Inadvertent, technical or minor breaches are at the low end of the scale. Wilful or reckless disregard of Charter rights are at the high end of the scale.

[144] The duties that s. 10(b) imposes on police officers when they arrest or detain an individual are well-settled. Indeed, they have been well-settled for more than a quarter of a century. Yet, on this occasion, all three aspects of the s. 10(b) right – informational, implementational and holding off – were breached.

[145] I am not of the view that the conduct of the police reflected bad faith on their part. But this finding is not the equivalent of a conclusion that they acted in good faith either.

[146] There was no need to keep Mr. Campbell sitting in his underwear, hands cuffed behind his back, for 30 minutes. There was no reason why his right to counsel should have been delayed for that long. It led directly to him inadvertently making arguably inculpatory statements – the very thing that s. 10(b) was designed to prevent.

[147] I accept that two of the four officers on the scene were rookies. That may explain why they were waiting on direction from more senior officers. But surely even a rookie police officer has been trained in the need to comply with s. 10 of the Charter. Moreover, two of the attending officers were veterans. One, Sgt. Henderson, went on to conduct a complete and invasive search of room 315 based on the misguided notion that the occupants had no reasonable expectation of privacy in it.

[148] Sgt. Henderson testified that he turned Mr. Campbell over to PC Ford to “facilitate” his s. 10(b) right. But no such facilitation took place; at least not within a reasonable time period. These events transpired within a small hotel room. Sgt. Henderson must have seen Mr. Campbell sitting in the room for half an hour. It is entirely unclear to me why no one ensured that he had been informed of his right to counsel and why his access to counsel had not been immediately facilitated.

[149] I would not characterize the breaches here as flagrant or wilful, nor do they reflect a systemic attitude or practice of the Barrie Police Service. They represent a mistake, indeed a series of mistakes, which are significant.

[150] On a scale of culpability, the breaches here trend closer to the serious end of the scale than they do to the minor or technical breach end of the scale. I conclude that they are sufficiently serious that they point towards exclusion of the impugned evidence.

The Impact of the Breaches on Mr. Campbell’s Charter-Protected Interests

[151] There are as many and varied impacts of Charter breaches as there are breaches themselves. Impacts may range from fleeting or technical to invasive or profound.

[152] In R. v. Rover, 2018 ONCA 745, at para. 45, Justice Doherty described the s. 10(b) right to counsel as a “lifeline” for detained persons. He said it enables them not only to obtain legal advice, but it also given detainees a sense that they are “not entirely at the mercy of the police while detained.” There is significant psychological value associated with the implementation of the right.

[153] I expect that Mr. Campbell would have felt very much at the mercy of the state as he sat for half an hour in his boxer shorts, without access to legal advice. The psychological impact on Mr. Campbell would have been exacerbated later when he was effectively denied the opportunity to speak to his counsel of choice.

[154] Moreover, as I have noted, Sgt. Henderson asked questions of Mr. Campbell that led to him making statements that were arguably incriminatory. Specifically, about what personal property in room 315 belonged to him.

[155] Having said all of this, the Crown has conceded that Mr. Campbell’s utterance is not admissible and none of the items of evidence seized from the search of Mr. Campbell’s personal belongings are admissible either. They only seek to introduce items that were found in plain view when the officers entered the hotel room. These concessions substantially attenuate any impact of the s. 8 and 10(b) breaches.

[156] Mr. Campbell was, ultimately, given the opportunity to speak to duty counsel. He expressed satisfaction with the advice given. Any violation of his s. 10(b) rights appears not to have ultimately affected his decision about whether to provide a statement to the police. And of course there is no causal link between the s. 10(b) breaches and the items of evidence that Mr. Campbell seeks to exclude.

[157] I conclude that the impact of the breaches is modest, trending towards the lower end of the scale. At most, it is a neutral factor in the analysis.

Society’s Interest in Adjudication on the Merits

[158] At this third stage of the Grant analysis, the court must determine “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.” See Grant, para. 79.

[159] The impugned evidence in this case is reliable – drugs, scales, cell phones and a prohibited weapon. The charges are undoubtedly serious ones.

[160] The evidence is, moreover, crucial to the prosecution’s case. Without it, frankly, there is no case.

[161] The third Grant factor almost always supports admission. See R. v. McGuffie, 2016 ONCA 365 at para. 62. I find that to be the case here. Indeed, I consider society’s interest in the adjudication of this case on its merits strongly pulls in favour of admission of the evidence given the reliability of the evidence and its importance to the Crown’s case. See R. v. Harrison, 2009 SCC 34 at para. 34.

The Balance

[162] No magic formula exists to aid in the balancing of the three Grant factors. Assuming each factor may point strongly in a given direction, weakly in a given direction, or be neutral, then there are some 27 configurations of the Grant factors.

[163] In this instance, I have found that the breaches were serious, though not at the top end of the scale. Given the concessions of the Crown I have concluded that the impact of the breaches is, at most, a neutral factor in the analysis. Finally, I have concluded that society’s interest in the adjudication of the charges on their merits strongly favours admission.

[164] As Doherty J.A. held in R. v. McGuffie, as above, at para. 62, the strength of the claim for exclusion under s. 24(2) is equal to the sum of the first two lines of inquiry. Here, one factor is neutral and the other trends towards exclusion, though not at the high end. I conclude that the third factor, which points strongly towards inclusion of the evidence, carries the day.

CONCLUSION

[165] In conclusion, I find that the police were entitled to enter room 315 of the Super 8 Hotel for the purpose of conducting a safety search. That said, once they had detained Mr. Campbell, they breached his s. 10(b) right in three respects: by failing to immediately inform him of his right to counsel; by failing to implement his right to counsel of choice; and by failing to hold off questioning him until he had been given a reasonable opportunity to speak with counsel.

[166] I further find that the police breached Mr. Campbell’s s. 8 right to be free from unreasonable search and seizure by conducting an overbroad search of room 315 incident to his arrest. That said, the Crown is voluntarily excluding any evidence seized as a result of the search incident to arrest.

[167] After conducting an analysis of the seriousness of the breaches, their impact on Mr. Campbell’s Charter-protected interests and society’s interest in the adjudication of this case on its merits, I conclude that the impugned evidence should not be excluded.

[168] In the result, Mr. Campbell’s application is dismissed.

Boswell J.

Released: October 28, 2019

[^1]: Mr. Campbell was, in October 2016, subject to a recognizance of bail that required him to reside with his surety in Mississauga. There was otherwise no house arrest provision that limited Mr. Campbell’s ability to be outside of the Mississauga residence without his surety. The Crown did not assert that Mr. Campbell’s privacy interest, if any, in room 315 was impacted by his bail recognizance.

[^2]: Mr. Campbell brought a Garofoli application as a companion to this one. He asserted that the affiant of the Information to Obtain a warrant to search cell phones seized from Mr. Campbell at the time of his arrest recklessly misled the issuing justice. He submitted that the warrant should be vacated and that any evidence extracted from his cell phones should be excluded under s. 24(2). I have separately dismissed the Garofoli application and do not consider any of the evidence adduced on that application to be of value to the Grant analysis conducted in this application.