COURT FILE NO.: CR-19-90000042
DATE: 20191115
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
LALENDRA DESILVA
Applicant
Amanda Webb, Jason Mitschele, for the Crown
Craig Zeeh, for the Applicant
HEARD: September 30, 2019
B.A. Allen J.
REASONS FOR DECISION
[Charter of Rights Application sections 7, 8, 9, 10(b) and 24(2)]
BACKGROUND
[1] The Applicant, Lalendra Desilva, brings this application seeking under s. 24(2) of the Charter of Rights to exclude drugs and proceeds seized by the police in violation of his ss. 7, 8, 9 and 10(b) Charter rights.
[2] Mr. Desilva was arrested on July 7, 2018 and first charged with non-compliance with a recognizance and possession of various drugs for the purpose of trafficking. After the arrest, the police searched Mr. Desilva’s person and vehicle. From his person the police recovered 2.25 gr. of cocaine and $7,060.00 (CAD). From his vehicle was seized cocaine, 477.46 gr., marijuana, 219.65 gr., hashish, 1.22 gr., Alprazolam, 35.1 gr. and GHB, 655.60 gr. He was charged with possession for the purpose of trafficking and possession of proceeds of crime.
THE ISSUES
[3] The following are the issues that arise in this case:
• Did the police have reasonable and probable grounds under s. 9 of the Charter to detain and, under s. 8 of the Charter, to arrest and search Mr. Desilva?
• Did the police breach the applicant’s rights under s. 8 of the Charter by searching his vehicle and seizing items without a warrant?
• Did the police violate the applicant’s rights under s. 10(b) of the Charter to retain and instruct counsel without delay?
• Did the police obtain statements from the applicant in breach of his right to life, liberty and security of the person under s. 7 of the Charter and under s. 10(b) of the Charter for obtaining statements without affording him access to counsel?
• Depending on whether a breach or breaches are found should the drugs and proceeds be excluded under s. 24(2) of the Charter?
THE POLICE EVIDENCE
Initial Observations of Mr. Desilva
[4] The officers involved in the arrest of Mr. Desilva began their shift on the evening of July 7, 2018. At about 1:45 a.m. on July 8th, the police were driving westbound on Wellington St. E. when they saw Mr. Desilva’s Mercedes. Officer Armstrong and Officer Langdon were on duty in uniform and in a marked scout car. Officer Armstrong was the driver and Officer Langdon the passenger. The officers were investigating information they had received that two males driving in the vicinity in a dark Mercedes were in possession of a firearm. At the time, Officer Armstrong was a police officer with 20 years' experience and Officer Langdon had been an officer for five years.
[5] The police ran the marker on the Mercedes and discovered Mr. Desilva was under house arrest, on bail conditions and appeared to be in non-compliance. The conditions of bail required house arrest and that Mr. Desilva not be outside the surety’s residence without being in the direct company of his surety, a woman named Alexandra Linkov, except in the case of medical emergencies. The computer search provided a description of Mr. Desilva indicating he has a scar on his face. The officers watched him with the intention of arresting him for breach of bail.
[6] Neither officer observed whether there was a passenger in the Mercedes. Mr. Desilva parked the car on the south side of Wellington St. and got out of the car. The officers observed Mr. Desilva walking westbound on the south side of Wellington St. toward the Thompson Hotel with an unknown woman.
Officer Armstrong’s Evidence
[7] Officer Armstrong first sighted Mr. Desilva after he left the Mercedes when he looked over his right shoulder and observed him on the north sidewalk on Wellington St. walking in close proximity to the woman towards the Thompson Hotel located on the north side of Wellington St. This observation was made as the scout car moved slowly westbound in dense traffic. There are two nightclubs in the hotel. Officer Armstrong pulled over to the south side of Wellington St. directly across from the hotel.
[8] Officer Armstrong testified that he saw Mr. Desilva approach and speak to a bouncer outside the hotel doors. He said at that point the woman was no longer in the area. Below I will set out the details of Officer Armstrong’s evidence about the woman.
[9] Officer Armstrong’s evidence is that he approached Mr. Desilva at the door of the hotel to arrest him and that Officer Langdon followed behind him. The officer said that Mr. Desilva looked over his left shoulder as if conscious of the police presence. Officer Armstrong testified that when he took Mr. Desilva by the arm to apprehend him his arm was trembling.
[10] Officer Armstrong indicated that he asked Mr. Desilva if the female he was with was his surety to which he responded she was inside the nightclub. After Mr. Desilva made that statement to Officer Armstrong, he arrested Mr. Desilva in front of the hotel. He cuffed him to the rear. The officer testified he gave Mr. Desilva his rights to counsel without referring to the words in the back of his memo book. He did not caution Mr. Desilva on his right to silence.
[11] Officer Armstrong then walked Mr. Desilva to the south side of Wellington St. where the scout car was parked.
[12] Officer Armstrong stated that before he searched him, he advised Mr. Desilva of his right to counsel reading from the back of his memo book. He did not inform Mr. Desilva of his right to silence. Mr. Desilva indicated he wanted to speak to duty counsel and another lawyer.
[13] Officer Armstrong explained why Mr. Desilva was not able to exercise his right to counsel at the scene. The officer testified he could not allow him to speak to a lawyer from his Mercedes at that time because the investigation was ongoing. He was prohibited under his bail from having a cellphone so he could not use his cellphone. He could not call from the scout car due to a lack of privacy with a camera and recording in operation in the vehicle.
[14] The officers then conducted pat down searches and found in Mr. Desilva's pockets several baggies of cocaine, Canadian currency, a cellphone and the keys to the Mercedes. Officer Armstrong stated because of finding the drugs, currency, keys and cellphone he concluded that Mr. Desilva was trafficking cocaine. Officer Armstrong then advised him he was further charged with possession of cocaine for the purpose of trafficking and possession of proceeds of crime.
[15] Officer Armstrong testified that he questioned Mr. Desilva after rights to counsel were given and the contraband was seized. The officer asked him what the money was for. Defence counsel asked Officer Armstrong if he was aware of the law that forbids officers from asking questions to extract evidence from an arrestee before he speaks to a lawyer. The officer responded that Mr. Desilva understood his rights to counsel and that in any case the arrestee does not have to answer questions if they do not want to.
[16] Officer Armstrong testified that after the drugs were found on Mr. Desilva’s person, he was entitled to search the Mercedes. The officer agreed with defence counsel that about ten minutes had elapsed from the time Mr. Desilva parked the Mercedes until Mr. Desilva was searched. He also agreed that the Mercedes was a distance from where the personal search took place but he did not know the exact distance.
[17] Officer Armstrong made the decision to search the Mercedes. He was asked whether, before the Mercedes was searched, he considered getting a search warrant for the vehicle. The officer responded that he did not consider that. His reasons were that the computer search revealed Mr. Desilva was the owner of the vehicle, the description of Mr. Desilva from the computer search matched the person driving the vehicle and Mr. Desilva had the keys to the vehicle in his possession when he was searched. The officer testified that when he approached the vehicle, he observed what appeared to be a shopping bag containing white powder.
[18] Mr. Desilva was transported to the police station by the officers. A call from duty counsel for Mr. Desilva was received at the police station at 4:50 a.m. at which time Mr. Desilva spoke to duty counsel. The officer however did not know who made the call to duty counsel so he did not know when duty counsel was contacted.
[19] Defence counsel pointed out that Mr. Desilva was arrested at 2:04 a.m., arrived at the police station at 2:46 a.m. and was paraded at 3:38 a.m. But he did not speak to counsel until 4:50 a.m., 50 minutes after arriving at the station. The officer testified that he could not explain the delay except to say there was a delay in getting Mr. Desilva from the sally port to the booking station because the booker was not available until 3:38 a.m.
Officer Langdon’s Evidence
[20] Officer Langdon was more precise than Officer Armstrong as to the distance between where the scout car and the Mercedes were parked. He estimated the vehicles were about a couple of car-lengths, about 15 feet, apart. Officer Langdon indicated he saw Mr. Desilva get out of the car alone. Similar to Officer Armstrong, he observed him with the woman only when Mr. Desilva was on the sidewalk. Below I will speak in more detail on Officer Langdon’s evidence about the woman.
[21] Officer Langdon’s evidence about where Mr. Desilva was arrested differs from that of Officer Armstrong. He testified that he stopped Mr. Desilva before he got to the hotel doors. He gave no evidence that Mr. Desilva was speaking to a bouncer.
[22] Officer Langdon indicated that Officer Armstrong made the decision to arrest Mr. Desilva for non-compliance with his bail conditions and walked him across the street to the scout car. As Officer Armstrong stated, both officers searched him near the scout car.
[23] Officer Langdon testified he also spoke to Mr. Desilva. He confirmed that Officer Armstrong gave him his rights to counsel once they reached the scout car. Officer Langdon testified he was not involved in the search of the Mercedes. He was tasked to remain in the scout car with Mr. Desilva.
[24] Officer Langdon testified that he gave Mr. Desilva his rights to counsel while they were in the scout car and he asked to speak to a lawyer. The officer stated that he asked Mr. Desilva two questions: whether the substance seized was fentanyl and, if not, what the substance was. He explained he asked those questions for safety reasons. He stated that some drugs like fentanyl are dangerous and if inhaled in close quarters like a scout car this could be harmful.
[25] The officer confirmed his partner’s evidence about when they took the accused to the police station. He gave a few more details about why there was a delay in having Mr. Desilva booked. He explained that there were a few other arrestees in scout cars ahead of them waiting to be booked. He was eventually booked at 3:38 a.m., then strip searched and lodged in a cell at 3:55 a.m. Officer Langdon was also unaware of when duty counsel was called. He said he believed his partner made the call. He indicated he was tasked at 4:55 a.m. to take Mr. Desilva to the phone booth to speak to duty counsel.
Further Evidence on the Woman
Officer Armstrong’s Evidence about the Woman
[26] Officer Armstrong testified he did not do a search on the surety Alexandra Linkov’s name when he saw Mr. Desilva with the woman. He testified that when he reached the doors of the hotel he did not know where the woman was.
[27] Defence counsel questioned Officer Armstrong on his evidence that he did not believe the woman was the surety because he could not imagine Mr. Desilva taking his surety to a nightclub at 2:45 a.m. Counsel put to him that he did not do a search on the surety so he would not know anything about her as to whether she was the type of person who might go with Mr. Desilva to a nightclub in the after hours.
[28] Defence counsel also put to Officer Armstrong that even if the woman was five to 10 feet from Mr. Desilva the woman could still be in his company. The officer agreed. But he disagreed with the suggestion that the woman was still with Mr. Desilva when he approached Mr. Desilva.
[29] Officer Armstrong noted in his memo book, “all indications say he is not with his surety.” When asked to explain those words the officer said when he first observed Mr. Desilva he was alone. As noted above, at this proceeding he said he did not see anyone in the Mercedes with Mr. Desilva. At the preliminary inquiry he said he was not certain and that when he turned toward the computer and then looked over his left shoulder, he saw a female with him who appeared to be walking with him.
[30] Officer Armstrong conceded that he did ask Mr. Desilva about the surety and agreed that he testified at the preliminary inquiry that Mr. Desilva told him his surety was inside the nightclub. Officer Armstrong stated he did not consider speaking to the woman and he said he would have spoken to her if she had presented herself to him.
Officer Langdon’s Evidence about the Woman
[31] Officer Langdon’s evidence was that he got out of the scout car and walked toward the north side of Wellington St. toward the hotel approaching Mr. Desilva and the woman who was walking slightly ahead of Mr. Desilva. He testified the woman was white with brown hair. He said the hotel was about 35 metres from the Mercedes.
[32] The officer indicated that he said Mr. Desilva’s name and he answered “yes”. As he approached Mr. Desilva the woman continued to walk westward. Officer Langdon stated that the woman was about 10 - 15 feet away from the Mercedes by the time he reached Mr. Desilva. The officer testified he did not speak to the woman. He said he thought of doing so but she had walked away.
[33] Officer Langdon, like Officer Armstrong, testified he did not do a search on the surety’s name. He explained he did not do this because the situation was very fluid. That is, Mr. Desilva was leaving his vehicle and he wanted to keep a watch on him.
[34] The officer stated that after the arrest, while he and Mr. Desilva were on their way to the scout car, he asked Mr. Desilva where his surety was. He got the impression the surety was inside the nightclub. Through discussions with Mr. Desilva Officer Langdon learned that the woman’s name was Julia.
THE PARTIES’ POSITIONS AND THE COURT’S ANALYSIS
The Law on Arbitrary Detention and Unlawful Arrest
[35] Section 9 of the Charter provides everyone has the right not to be arbitrarily detained or imprisoned. Section 8 of the Charter provides protection from unreasonable search and seizure.
[36] What constitutes an arbitrary detention is settled law. The Supreme Court of Canada in R. v. Grant held for a detention to be non-arbitrary it must be: (a) authorized by law; and (b) the law itself must be non-arbitrary. The authority to detain can arise at common law: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C). Where police powers interfere with an individual’s privacy and liberty the conduct of the police is assessed in relation to whether the police activity: (a) falls within the general scope of a duty imposed by statute or recognized at common law; and (b) whether the activity involves a justifiable use of police powers. [R. v. Waterfield, [1963] 3 All E.R. 659].
[37] The Supreme Court in R. v. Mann held a police officer may briefly detain for investigative purposes where, in the totality of the circumstances, the officer has reasonable grounds to suspect a clear connection between the individual to be detained and a recently committed or unfolding criminal offence. Officers cannot operate on the basis of a mere “hunch” in detaining a person on an investigative detention: [R. v. Mann, [2004] 2 S.C.R. 59, at paras. 34 and 35, (S.C.C.)]. The scope of police duties on detention include the preservation of peace, the prevention of crime and the protection of life and property. R. v. Dedman, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2 (S.C.C.).
[38] Courts determining the reasonableness of a decision to detain must inquire whether there is a constellation of discernible facts that give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation. R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.). R. v. Mann held that the determination of reasonableness is only the first step. The court must assess the reasonableness of the decision to detain in the context of all the circumstances, particularly looking at: the extent to which the interference with individual liberty is necessary to the performance of the officer’s duties; the liberty interfered with; and the nature and extent of that interference: [R. v. Mann, at para. 26].
[39] Section 495(1) of the Criminal Code empowers a police officer to make a warrantless arrest where the officer believes on reasonable grounds a person has committed or is about to commit an offence. The officer’s belief must be an honestly held belief and must be reasonable.
[40] If an officer arrests someone who it is shown by evidence was not committing an offence or about to commit an offence then the arrest is not lawful. The police must consider all available evidence in deciding whether on reasonable and probable grounds an offence has been committed for which an arrest may be made.
[41] The Supreme Court of Canada in R. v. Storrey set down the tests for a reasonable arrest.
Reasonable grounds have both a subjective and an objective aspect. The arresting officers must subjectively have reasonable and probable grounds on which to base an arrest. Moreover, those grounds must be justifiable from an objective point of view such that a reasonable person placed in the position of the arresting officer can conclude that there were reasonable and probable grounds for the arrest.
R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250 - 51,
(S.C.C.)].
[42] The police detained and arrested Mr. Desilva because they believed he was in breach of his bail condition requiring him to be in the direct company of his surety except in the case of medical emergencies.
[43] Mr. Desilva argues that the police lacked the required reasonable and probable grounds to arrest him. On the computer search they found that he was under bail conditions that required him to be in the direct presence of his surety. Mr. Desilva submits that he was in the presence of a woman after he got out of his car on Wellington St.
[44] The police had not conducted a computer search on the surety’s name that came up in the search of Mr. Desilva. So, the police did not have a description of the surety when they encountered him with the woman. In the defence’s view the police did not know whether Mr. Desilva was in the presence of his surety and hence whether he was in breach of bail when they arrested him.
[45] The defence focusses on the fact that the police did not know whether the woman or anyone else was in Mr. Desilva’s vehicle with him when he disembarked. The defence points out that after he parked the Mercedes the next thing the police saw was Mr. Desilva on the north sidewalk walking towards the hotel, Officer Langdon says, with the woman walking slightly ahead of Mr. Desilva.
[46] The evidence is that the woman was five to ten feet ahead of Mr. Desilva when they walked up to Mr. Desilva. The police did not know the woman was not his surety and the officers did not take the opportunity to speak to the woman to confirm whether she was the surety. The applicant takes the position, assuming the woman was his surety, that even at five to ten feet apart Mr. Desilva would still be in the presence of his surety.
[47] The Crown takes the position that the police had reasonable and probable grounds to arrest Mr. Desilva for non-compliance with his recognizance. The Crown’s position is that the police had good reason to think the woman was not Mr. Desilva’s surety and that he was therefore out in downtown Toronto at 2:00 a.m. not in the direct company of his surety.
[48] I agree with the Crown's position for the following reasons.
[49] The law requires the court to look at the total context of the facts to determine reasonable and probable grounds.
[50] What took place between the police first observing Mr. Desilva, him disembarking his vehicle, the police observing him on the north sidewalk with the woman and the police disembarking the scout car and walking up to Mr. Desilva at or near the hotel occurred over a relatively short and fluid period. Looking forward, Officer Armstrong’s evidence was that about ten minutes elapsed from the time Mr. Desilva parked the Mercedes until Mr. Desilva was searched.
[51] For a brief period, after seeing Mr. Desilva in his vehicle, Officer Armstrong had his attention on driving and Officer Langdon had his eyes on the computer screen doing the search. During this brief period Mr. Desilva got out of his vehicle and was spotted by the officers on the north side of the street walking in close proximity to a woman, both moving in the same westward direction. The woman kept walking when Mr. Desilva stopped at the hotel. When the officers reached Mr. Desilva, the woman was five to ten feet west of them on Wellington St.
[52] I find the defence's position is not the most reasonable interpretation of the facts when looked at in the context of all the facts. That is, it is not, in my view, reasonable to conclude that, because the police did not see where the woman was before they saw her on the sidewalk, that she had been in the Mercedes. Moreover, those facts do not necessarily lead logically to the conclusion that the woman was Mr. Desilva’s surety. I think the facts permit a different and more reasonable understanding.
[53] Officer Langdon said the woman was walking a little ahead of Mr. Desilva and kept walking when he stopped at the hotel. The police had parked their car a couple of car lengths behind the Mercedes and when they left the scout car they were walking closely behind Mr. Desilva and the woman. While it is not clear from the facts whether the woman saw the scout car or the police officers as they approached Mr. Desilva it is not unreasonable in the circumstances to infer that she did.
[54] The police were not undercover. They were in a marked police car and in uniform. Further, the woman kept walking along Wellington St. away from Mr. Desilva. That then raises the question as to why the woman would walk away if she was the surety knowing Mr. Desilva would be in trouble for not being in her direct company.
[55] With that view of the facts it makes sense that the police would not stop the woman and question her about whether she was the surety especially, on the police evidence that Mr. Desilva did not say anything about the woman being his surety before or at the time he was arrested. One would expect Mr. Desilva to do this to avoid getting into trouble.
[56] Based on the police’s belief that the woman was not Mr. Desilva’s surety, and the consequential belief that Mr. Desilva was in breach of bail, they had reasonable and probable grounds to detain and arrest Mr. Desilva. This permitted the officers to conduct a lawful investigative search of Mr. Desilva’s person to ensure officer safety and the safety of the public. The police then arrested Mr. Desilva for possession of drugs for the purpose of trafficking and possession of proceeds of crime.
[57] I find the police did not breach Mr. Desilva’s ss. 8 and 9 Charter rights when they detained and arrested him, searched his person and seized the drugs and money from his pockets.
Search of the Mercedes
[58] The search of Mr. Desilva’s vehicle raises another question under s. 8 of the Charter. The police searched Mr. Desilva and found drugs and money and arrested him for possession for the purpose of trafficking. This does not give them an automatic right to search his vehicle. The question is whether the search of Mr. Desilva incident to the arrest extends to his vehicle. “What matters is that there be a link between the location and purpose of the search and the grounds for the arrest”: R. v. Tsekouras, 2017 ONCA 290, at para. 87, (Ont. C.A.). On this the Supreme Court of Canada in R. v. Caslake held that automobiles are legitimately the objects of a search incident to arrest.
The right to search a car incident to arrest and the scope of that search will depend on a number of factors including the basis of the arrest, the location of the motor vehicle in relation to the place of arrest, and other relevant circumstances.
The temporal limits on search incident to arrest will also be derived from the same principles. There is no need to set a firm deadline on the amount of time that may elapse before the search can no longer be said to be incidental to the arrest. As a general rule, searches that are truly incident to arrest usually occur within a reasonable time after the arrest.
[R. v. Caslake (1998)121 C.C.C. (3d), at paras. 15 and 23 and 24, (S.C.C.)]
[59] There is no question in this case about the time span between Mr. Desilva’s arrest for possession of the drugs and proceeds and the search of his vehicle. The police evidence is that the search of the Mercedes occurred immediately after the arrest. I find the temporal factor is satisfied.
[60] The location factor requires some examination. Context is important in looking at this factor. The arrest for the drugs and proceeds occurred at the scout car a couple of car lengths or 15 feet from the Mercedes. The evidence shows that Mr. Desilva’s Mercedes was integrally connected to the police actions from the time they got word of two males in a Mercedes in possession of a firearm in the area and the time they spotted Mr. Desilva’s vehicle. The police purposely pursued Mr. Desilva’s Mercedes and parked behind and near it. I find for that reason they were reasonably near the Mercedes when they arrested Mr. Desilva for non-compliance. In their search of Mr. Desilva’s person the they found drugs and money on him which I find reasonably allowed them to search the vehicle incident to Mr. Desilva’s arrest moments earlier.
[61] I find in the circumstances that the search of Mr. Desilva’s vehicle was reasonable as being truly incident to the arrest. I therefore find that the search of the vehicle and seizure of further drugs and proceeds were not violations of Mr. Desilva’s s. 8 Charter rights.
Right to Counsel
[62] Mr. Desilva made a number of statements to the police. The Crown is not relying on those statements. However, when an accused makes a statement to the police an issue arises as to whether the statement was obtained in violation of the accused’s right to be cautioned about his right to silence and about his right to seek the advice of a lawyer before any questions are asked and answered and before any statements are made by the accused. The Supreme Court of Canada in R. v. Grant addressed the impact unlawfully obtained statements have on the rights protected under s. 7 and s. 10(b) of the Charter:
The right violated by unlawfully obtained statements is often the right to counsel under s. 10(b). The failure to advise of the right to counsel undermines the detainee’s right to make a meaningful and informed choice whether to speak, the related right to silence, and, most fundamentally, the protection against testimonial self-incrimination. These rights protect the individual’s interest in liberty and autonomy. Violation of these fundamental rights tends to militate in favour of excluding the statement.
[63] Section 10(b) of the Charter provides: “[e]veryone has the right on arrest or detention … to retain and instruct counsel without delay and to be informed of that right”. The rights extended to a person under s. 10(b) arise because they have been arrested or detained for a particular reason and they are entitled to know the reason.
[64] This right is divided into an informational component and an implementation component. The officer: (a) must provide the detainee with a reasonable opportunity to exercise the right to retain counsel without delay except in urgent or dangerous circumstances; and (b) except in urgent or dangerous circumstances refrain from attempting to elicit evidence from the detainee until they have had a reasonable opportunity to retain and instruct counsel: R. v. Bartle 1994 CanLII 64 (SCC), (1994), 92 C.C.C. (3d) 289 (S.C.C.) at p. 301, S.C.C.).
[65] For the right to be properly exercised the accused must fully understand the jeopardy they are in and appreciate the consequences of the decision to speak to counsel. The informational duty requires the officer to inform the detainee of his right to retain and instruct counsel without delay: R. v. Brydges, 1990 CanLII 123 (SCC), 1990 1 S.C.R., at p. 190, (S.C.C.). The two components impose a duty on the detaining or arresting officer to inform the accused that they have the right to counsel and to ensure that they have the opportunity to exercise the right.
[66] Mr. Desilva was not given an opportunity to speak to duty counsel until 4:55 a.m. The evidence is that Mr. Desilva was arrested at 2:04 a.m., arrived at the police station at 2:46 a.m. and was paraded at 3:38 a.m. but did not speak to counsel until 4:55 a.m., about 50 minutes after arriving at the station.
[67] I accept the reasons the police gave for Mr. Desilva not being given the opportunity to speak to a lawyer at the scene. He was forbidden to use his cellphone by his bail conditions. There was no privacy to make the call in the scout car because of the recording devices. His Mercedes was under investigation so he could not make a call from his vehicle.
[68] I also accept the officers’ explanation for the 50 minutes’ delay at the police station before Mr. Desilva could speak to a lawyer. It is reasonable that if there was a lineup in the sally port with other scout cars awaiting booking ahead of the officers who had custody of Mr. Desilva, a 50-minute delay was not unreasonable.
[69] Under the circumstances, I find no violation of Mr. Desilva's right to be given access to counsel without delay.
[70] The Crown concedes a minor breach of Mr. Desilva’s s. 10(b) rights in relation to the statements elicited from him without cautioning him about his right to silence. I agree there was a breach. But I would not describe it as minor.
[71] Officer Langdon was a 20-year veteran police officer. He displayed a surprising ignorance of his obligation to caution an accused of their right to silence. It is not acceptable for him to think it is appropriate not to give the caution because of his view that the accused does not have to answer the questions if they do not want to.
ADMISSIBILITY OF EVIDENCE UNDER SECTION 24(2) OF THE CHARTER
[72] In determining whether evidence should be excluded under s. 24(2) of the Charter, the court should consider three inquiries to determine whether, having regard to all the circumstances, admitting the evidence would bring the administration of justice into disrepute. The Supreme Court of Canada in R. v. Grant sets down the inquiries as follows:
• the seriousness of the Charter-infringing state conduct;
• the impact on the Charter-protected interests of the accused; and
• society's interest in an adjudication on the merits.
The First Inquiry
[73] The sole infringement I am considering is the failure of the police to caution Mr. Desilva about his right to silence, eliciting information from him, in advance of him having the opportunity to speak to a lawyer.
[74] The seriousness of the breach falls along a spectrum where at on one end are violations that are inadvertent or minor in nature and on the other end, violations that demonstrate a reckless and deliberate disregard of Charter rights: R. v. Grant, at paras. [72 and 74].
[75] While I agree with the Crown that this is the only violation committed by the police, as I said earlier, I do not agree that the breach was minor. Officer Armstrong did not appear to appreciate the inordinate power and influence a police officer has over a detainee when the officer asks questions seeking information. To say the detainee does not have to answer the questions if he does not want to is completely wrong-minded and ignores the fundamental obligations an officer has to tell a detainee he does not have to speak to the police and that he has a right to obtain legal advice before he decides whether he wants to speak to the police or not.
[76] On the scale of seriousness, I do not find the breach to be on the egregious or very serious end of the spectrum. I find it to be a moderately serious violation. I do not find the conduct was the result of ill-will or bad faith. I think it was more in the nature of careless police practice, neglect to administer rights an officer of 20 years must have been familiar with, or if not, ought to have been familiar with. This being the case, I conclude the court should not be seen to condone this practice. This conduct must be soundly criticized. The court must dissociate itself from this practice.
The Second Inquiry
[77] The second inquiry looks at the impact of breaches on the Charter-protected interests of the accused.
[78] The impact of the breach on Mr. Desilva’s Charter-protected right to silence I find is on the less serious end of the spectrum. It does not appear, despite the attempts to elicit information from Mr. Desilva, that he provided information that was seriously prejudicial to him. They asked him about his surety, and he told the police his surety was inside the nightclub. At some point, I believe after he was arrested, he mentioned the woman he was walking with was named Julie. Mr. Desilva did not say he was not with his surety. He did not mention the drugs and proceeds to the police. It appears he did not give an answer to Officer Langdon’s question about what the proceeds were for.
[79] I find the questions Officer Langdon asked about whether the drug seized was fentanyl were appropriate inquiries made in the interest of officers’ and Mr. Desilva’s safety.
[80] While the court must dissociate from the attempts to elicit statements from Mr. Desilva, I find on balance that the impact on Mr. Desilva’s rights was on the less serious end of the spectrum.
The Third Inquiry
[81] The third inquiry requires the court to look at the seriousness of the offence.
[82] The Supreme Court of Canada in R. v. Harrison asks the application court to balance the implications of excluding evidence of an offence against the effect on the administration of justice if the prosecution of a serious crime is not pursued because evidence that could provide conclusive proof is not admitted. I am required to balance against the seriousness of the crime the officers’ misconduct under s. 10(b) of the Charter in not providing Mr. Desilva a caution to silence and eliciting information from him without availing him the opportunity to speak to counsel: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 (S.C.C.).
[83] The court is required to perform a fact-based balancing of the three lines of inquiry. The exercise is not simply a quantitative evaluation of whether the majority of the factors favour exclusion. The question to be considered is what effect on the long-term repute of the administration of justice would result from admitting the evidence: R. v. Harrison, at para. [36].
[84] The drugs and proceeds cannot be regarded as operating unfairly in the court’s search for the truth at trial: R. v. Harrison, at paras. [81 and 82]. The evidence seized is clearly critical to the Crown’s case.
[85] The seriousness of the crime is not in doubt. Mr. Desilva had on his person and in his vehicle very addictive drugs ready to be sold. He was on his way into a nightclub where members of the public had gone out to have a good time. Cocaine and heroin are particularly dangerous substances that spawn in their wake violence in public places and foster instability in families and communities. I must balance the seriousness of the offence against the Charter violation.
[86] I found the violation to be of moderate seriousness and the impact on Mr. Desilva not to be of a very serious nature. When I weigh those findings against the serious nature of the crime Mr. Desilva was involved in, I find in the circumstances excluding the drugs and currency would risk bringing the administration of justice into disrepute.
[87] In the result, I find the balance weighs in favour of admitting the evidence.
DISPOSITION
[88] The drugs and proceeds are admitted as evidence for trial.
B.A. Allen J.
Released: November 15, 2019
COURT FILE NO.: CR-19-90000042
DATE: 20191115
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
LALENDRA DESILVA
Applicant
REASONS FOR Decision
[Charter of Rights Application sections 7, 8, 9,
10(b) and 24(2)]
B.A. Allen J.
Released: November 15, 2019