CR-17-6290
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- v. –
THOMAS SOMERVILLE
REASONS FOR JUDGMENT
ON PRE-TRIAL CHARTER APPLICATIONS
BEFORE THE HONOURABLE JUSTICE J. McCarthy
ON January 28, 2020 at NEWMARKET, Ontario
APPEARANCES:
M. Capotosto Counsel for the Crown
J. Sickinger Counsel Mr. Somerville
Mccarthy, j: (orally)
Introduction
[1] Thomas Somerville (referred to hereinafter as “the accused”) stands charged with four counts of possession for the purpose of trafficking in controlled or banned substances contrary to 5(2) of the Controlled Drugs and Substances Act (“CDSA”) (more specifically, Fentanyl, Methamphetamine, cocaine and cannabis) and one count of the possession of proceeds of crime.
[2] The Applicant applies for an order pursuant to sections 8, 10(b) and 24(2) of the Canadian Charter of Rights and Freedoms (“the Charter”) excluding the evidence gathered in relation to the violations of the Applicant’s rights. The accused did not meaningfully pursue his initial position that his s. 9 Charter rights were violated.
The Application
[3] The specific grounds for the relief sought may be particularized as follows:
The search of the cellphone owned by Sally Chaput (“Chaput”) for messages authored by or sent to the accused on August 3, 2017 was unlawful. The accused has standing to challenge that cellphone search as contrary to s. 8 of the Charter since he had a reasonable expectation of privacy pertaining to those messages.
The tele-warrant granted to search the accused’s residence at 160 Virginia Blvd in Georgina Township (“160 Virginia”) was both facially and sub-facially invalid. In addition, there was insufficient information provided by the affiant as to why a tele-warrant was being sought in lieu of a warrant from a justice in the ordinary course. This renders the resulting search of 160 Virginia and the seizure of drugs there unlawful pursuant to s. 8 of the Charter.
The Applicant’s rights under s. 10 (b) of the Charter were violated following his arrest at 160 Virginia on August 3, 2017 when he was denied the implementational component of the right to seek and instruct counsel without delay.
[4] The relevant sections of the Charter for this application are set out below:
Section 8: Search or Seizure – Everyone has the right to be secure against unreasonable search or seizure.
Section 10: Arrest or Detention – Everyone has the right on arrest or detention,… (b) to retain and instruct counsel without delay and to be informed of that right.
Section 24(2): Exclusion of Evidence Bringing Administration of Justice into Disrepute - Where, in a proceeding under subsection (1), a court concludes that evidence 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 of the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[5] The Application proceeded by way of a blended voir dire. The court heard from various York Regional Police (“YRP”) officers involved in a drug trafficking investigation which began on or about May 9, 2017 but culminated on August 3, 2017 when drugs were found by police following a warranted search of 160 Virginia. The court was referred to copious passages of evidence from involved officers given at the preliminary inquiry which was held over a number of days before Mr. Justice Tetley of the Ontario Court of Justice. There was an agreed set of facts in respect of the evidence of DC Harrison.
Background
[6] On May 9th, 2017, acting on information received from a confidential informant that the accused was involved in drug trafficking out of his residence, YRP conducted surveillance of 160 Virginia. Other than confirming that the accused appeared to reside at that address, the surveillance yielded little in the way of evidence and was discontinued. No further surveillance was conducted until the arrest date of August 3, 2017.
[7] On August 3, 2017, again acting under information received from a confidential informant that the accused and others were involved in drug trafficking, YRP renewed surveillance at 160 Virginia. Surveillance was also conducted on 15 Blue Jay Way (15 Blue Jay) a residence linked to Chaput, which was located 1 to 1.5 km distant from 160 Virginia. On the date in question, Chaput was observed leaving 15 Blue Jay as a passenger in a Chevrolet Cobalt (“the Cobalt”) and attending at 160 Virginia. There, police observed what they believed to be a hand to hand drug exchange during a brief interaction between Chaput and the accused who exited from the residence at 160 Virginia seconds after the arrival of the Cobalt in the driveway. Moments after it departed 160 Virginia, the Cobalt was stopped by YRP on Highway 48; both occupants were placed under arrest for possession of a controlled substance. A search of the Cobalt revealed a cellphone, $1,300.00 in Canadian currency as well as three empty fentanyl wrappers in the trunk. No drugs were found.
[8] DC Dinsmore conducted a limited search of Chaput’s cellphone; he located messages exchanged between the accused and Chaput in the moments leading up to the vehicle stop which police believed to be the prelude to the observed drug transaction just observed. Those messages featured the following exchanges between “Chaput” and “Tom”:
i) From Chaput – 12:42 p.m. “I need to call her rite back with amount how many u want there’s 3 left”
ii) From Tom – 12:43 p.m. “ok I’ll take 3”
iii) From Chaput – 12:43 p.m. “K”
iv) From Tom 12:57 p.m. “R u coming buddy”
v) From Chaput – 1:00 p.m. “Yep I’m meeting Dave atb3 now”
vi) From Chaput – 1:05 p.m. “he’s holding the 3 for ya well she is anyway”
vii) 1:36 p.m. “Michelle just called she forgot to tell me they r 325 do u still want them”
viii) From Tom – 1:48 p.m. “ya please”
ix) From Chaput – 1:48 p.m. “ok”; 1:49pm “B there in 5, any change u can come outside my legs r really bugging me.”
x) From Tom – 1:51 p.m. “I thought you might want A pipe”
xi) From Chaput – 1:52 p.m. “No maybe when I get bsvk”
xii) 1:55 p.m. “I’m here”
xiii) From Tom – 1:55 p.m. “Coming out”
xiv) From Chaput – 1:56 p.m. “Thank u”; 2:02 p.m. “Hey dingleberry u gave me 25 too much”
xv) From Tom - 2:03 p.m. “I gave it to u for gas dingleberry”
[9] With Chaput and the Cobalt’s driver (confirmed to be a Kara Shea) in custody and armed with the evidence seized from the Cobalt together with the information from the confidential informant, DC Weishar prepared an information to obtain a tele-warrant from a justice of the Ontario Court allowing police to enter 160 Virginia for the purpose of searching for Fentanyl, debt lists, packaging material and currency.
[10] The tele-warrant to search was granted at 21h10 on August 3, 2017; it authorized entry and search until 23h59 the next day. That same evening, a team of YRP officers entered 160 Virginia at approximately 22h20 where they discovered the Applicant and an individual named Simone Davies (the accused’s partner). Police observed the accused run down the hallway towards a bathroom where he dove into a bedroom area and appeared to throw an unknown item towards the front of the room. The police were obliged to subdue the accused before placing him in handcuffs and under arrest. After he was taken to the kitchen, the accused underwent a search incident to arrest. According to DC Harrison, the accused was read his rights to counsel and cautioned. DC Harrison testified that the accused expressed a wish to speak with a lawyer “when he got to the station”. It was agreed that this was in no way a waiver of his rights to counsel.
[11] There followed a brief interlude during which DC Harrison placed the accused into the care of DC Weishar who was situated in the living room. The accused assisted police with putting a dog into a crate. The accused asked DC Weishar about Simone Davies. DC Weishar advised the accused that the residence would be first photographed, then searched and that if drugs were found, both occupants would be charged with drug offences. At that point, the accused stated that the drugs in the house were his and that Simone Davies had nothing to do with them. The accused then led officers into the bedroom and indicated that the drugs were under the bed and inside a small pencil case sized safe. The accused provided the combination to the safe.
[12] Following this interaction, the accused was taken outside and turned over to PC Van Shaik (one and the same person as PC Banschibia) at approximately 23h00 who was asked by other officers to again provide the accused rights to counsel and a caution, this time on his in-car police camera, and to transport the accused back to 1 District. When rights to counsel were read to the accused at 23h06, the latter responded that his lawyer was a Jeff Goldglass but that he would like to speak with duty counsel at that time. PC Van Shaik did not facilitate contact with duty counsel from the squad car; he did not offer to provide a cellphone to the accused. Instead, the officer transported him back to 1 District which was a 40 to 50-minute drive away. They arrived at the station at 23h45 but were delayed entering the parking area until just after midnight. The accused was processed in the booking area by Sgt. Armstrong before being taken to the cells at 00h26. It was only then at 00h35 that DC Van Shaik placed a call to duty counsel who was not available. A message was left. At the booking desk, the accused had expressed his wish to speak to Mr. Goldglass. A message was left for this lawyer at 00h33 following which a second call was placed to duty counsel at 01h22. A second message was left. It being a busy night, DC Van Shaik left the accused in the care of the drug team who indicated that they would follow up with duty counsel. It appears that the accused’s first actual contact with duty counsel took place while he was being held in the cells at 01h53.
[13] Thus, it is apparent that a period of approximately 1 hour and 33 minutes elapsed between the time that the accused was turned over to DC Van Shaik and the time when the first attempt was made to contact counsel. Given that the accused was arrested at approximately 22h20, a period of more than 2 hours elapsed between the time his rights to counsel were first provided and the first attempt was made by police to implement contact with counsel.
The Arrest of Chaput and the Search of her cellphone (section 8 analysis)
[14] The Crown conceded that the accused had a reasonable expectation of privacy in the messages sent to Chaput’s cellphone. The Crown concedes that the accused therefore has standing to challenge the lawfulness of the search of that cellphone.
[15] I find that YRP’s search of Chaput’s cellphone was lawful, it having complied with the Supreme Court’s requirements as set out in R. v. Fearon, 2014 SCC 77.
[16] First, I find that the arrest of Chaput was lawful. There were clear indicia that a drug transaction had just taken place. The confidential informant information advising police that the accused was dealing in Fentanyl and other drugs from his residence at 160 Virginia was corroborated by the observation of the Cobalt with Chaput as a passenger attending at 160 Virginia. Following only the briefest of interactions on the driveway, police observed a hand to hand exchange through the window of the passenger side of that vehicle. The collective wisdom of the police, based upon years of experience in drug enforcement, allowed them to form reasonable and probable grounds that a drug deal had just taken place. In my view, it matters little whether the occupants of the Cobalt were buyers or sellers that August afternoon. What matters is that the police were satisfied, justifiably so, that what they had just witnessed had been a drug deal and that the occupants of the Cobalt were implicated in it. They had reasonable and probable grounds to arrest Chaput for possession. The arrest of Chaput was lawful.
[17] Second, I accept that the search of the cellphone was based upon the valid law enforcement interest of discovering evidence pertaining to the presumed drug transaction which had just been witnessed and particularly the role played in it by the accused. A large sum of currency ($1,325.00) had been located in the Cobalt at the vehicle stop. Chaput had exclaimed to DC Dinsmore something to the effect of, “wait until you guys find no drugs”.
[18] That the drugs being sought were going to be found in the Cobalt or on the person of Chaput was certainly one possibility and undoubtedly the one that police thought to be most likely; but it was not the only possibility. To not search the cellphone for recent messages received by Chaput would greatly stymie the overall investigation; those messages might well be the key piece of evidence allowing police to determine where the drugs were. This was important for any search warrant that was to be sought; it was equally important for the safety of the public, including whoever now possessed the drugs. That individual might have been set to ingest the unsafe and potentially deadly drug imminently or pass it on to another person in his presence for their use. In short, a search of the phone was necessary to find out where the drugs were. It bears repeating that the police only assumed that the accused was the seller of the drugs; while that assumption was erroneous, the belief that a drug transaction had taken place was well founded and never waivered. Another party other than the one in custody was involved. A co-offender was out there. There was a valid law enforcement interest in discovering the identity and whereabouts of that co-offending party as well as the location of the drugs.
[19] Third, I find that the nature and extent of the search was tailored and limited to the messages in the immediate pre-offence period and to the interaction between Chaput and her suspected co-offender the accused. I accept the evidence of DC Dinsmore in that regard. This limited search left it within the realm of incident to arrest – the officer’s focus was clearly on messages which would shed light on the nature of, and the actors involved in, the transaction which had taken place in sight of police only moments before.
[20] Fourth, while DC Dinsmore did not make accurate notes of what he searched, the extent of the search, the time of the search, its purpose and duration at the scene, I find that his handling and search of the phone was so brief, so focused and so limited that contemporaneous notes would not greatly assist the court in an after the fact judicial review. Moreover, I find that the essence, detail and extent of the search was captured by the police screen shots taken at approximately 18h00. These serve as an adequate substitute for detailed notes taken upon actual seizure and inspection. I find that the screen shots taken of the cellphone by police at 18h00 constitutes a record of the essential items which were searched. Taken together with the supplementary screen shots of the other messages reviewed and the evidence of DC Dinsmore generally, I am satisfied that the court has a complete record of what was searched sufficient to have the meaningful judicial review of the legality of the search called for in R. v. Fearon. In the circumstances of this case, I find that the failure of the officer to take detailed, precisely contemporaneous notes does not offend the principles in Fearon; nor should it, in and of itself, serve to render the search of the Chaput cellphone unlawful.
[21] Having found that the search of the cellphone was lawful, I am satisfied that the information from it was properly before the justice in the ITO. I am not prepared to excise it for the purposes of assessing the validity of the warrant.
Assessing the Validity of the Warrant
[22] The standard of review for challenges to the authorization of presumptively valid warrants was set out by Sopinka, J. in R. v. Garofoli 1990 CanLII 52 (SCC), [1990] 2 SCR 1421 at para 56:
The reviewing judge does not substitute his or her views for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine where there continues to be any basis for the decision of the authorizing judge.
[23] As part of the Garofoli review process, a judge is entitled to excise errors and misrepresentations from the ITO in order to consider whether the warrant could have issued based upon the corrected factual information. The court is also entitled to consider the record before the authorizing justice as amplified with new or external information adduced through cross-examination and re-examination of the affiant for the purpose of correcting technical errors and oversights in the supporting ITO.
[24] The accused first challenges the warrant on the basis that there were insufficient grounds set out by the affiant as to why it was impractical to appear before a Justice of the Peace in person to request the warrant. In addition, the accused has highlighted multiple entries and passages from the ITO which, it is submitted, must be excised from the document as part of the assessment of its validity (Exhibit 7). The accused seeks excision of these entries and passages on the basis that they are variously: irrelevant/immaterial, misleading, inflammatory, omissions or conclusory/unsupported statements.
[25] The Crown argues that the basis set out for seeking the tele-warrant was both valid and entirely sufficient. As well, the court is entitled to look at all of the information contained in the body of the ITO as forming part of the basis for the tele-warrant request. The Crown opposes the excision of much of what is challenged by the accused on the basis that it is neither misleading nor inaccurate. To the extent that there are errors in the ITO they do not rise to the level where the warrant could not have issued. The Crown agrees that the record should be amplified in one significant respect: it should include confirmation that the three empty Fentanyl packages referenced throughout the document were found in the trunk of the Cobalt vehicle only once.
[26] On the issue of the sufficiency of grounds to seek the tele-warrant, I am satisfied that the ITO established an adequate basis upon which resort to the tele-warrant provisions of the Criminal Code could be justified. As stated by Di Luca, J. of this court in R. v. Ricciardi, 2017 ONSC 2788, [2017] O.J. No. 2282, the standard to be satisfied for resort to the tele-warrant process is low. At paragraph 59, the court stated:
It must be remembered that the justification needed for resort to the tele-warrant provisions is not onerous. It merely requires a basis upon which it can be said that circumstances make it impractical to apply for a warrant in the normal course.
[27] Here, at the time that the affiant prepared his materials, not only was it after normal court hours, but two people arrested at the traffic stop were in custody, three empty packages of Fentanyl had been found, the accused was thought to be inside of 160 Virginia in possession of the Fentanyl and officers were monitoring the activities at that residence. I find that this constellation of facts fully justified the seeking of a tele-warrant. It would have been highly impractical to wait until the following day to seek a warrant directly from a justice.
[28] I am prepared to excise paragraph 33 of the ITO. It was slightly misleading to speak of a “further search” of the Cobalt motor vehicle leading to the discovery of three empty Fentanyl packages. Clearly there was only one search. This does not however affect the validity of the warrant. It would be enough for an issuing justice to know that a search of the Cobalt had revealed the presence of three empty wrappers to conclude that the contents of those packages were in the possession of somebody who had had contact with occupants of that vehicle.
[29] After review of the entire ITO, I find that the affiant DC Weishar made full, fair and frank disclosure in accordance with his duty.
[30] I have already found that the limited and focused search incident to arrest of Chaput’s cellphone was lawful. At paragraph 32, the exact contents of those messages were set out for the justice. I cannot find that the reference to those messages at paragraph 8 of Appendix C constituted inappropriate conclusory or unsupported statement.
[31] It was not misleading to state in paragraph 25 of Appendix C that the accused had 55 criminal convictions ranging from drug possessions to assault with intent to resist arrest. The criminal record of the accused speaks for itself.
[32] Paragraph 24 is not misleading. It is a fair summary of what was observed on the first day of surveillance.
[33] I see nothing inflammatory about the information set out in paragraphs 20 or 21. It is background information in respect of the two persons of interest; none of it was misleading or inaccurate.
[34] The investigator’s note at paragraph 29 of Appendix C is nothing more than the affiant’s belief of the nature of the interaction on the driveway of 160 Virginia based upon his observation and his experience as a drug enforcement officer.
[35] I am unable to agree that statements at paragraph 35 that “Thomas Somerville and Simone Davies who are involved in drug trafficking” and “a cellular phone with messages from Somerville requesting to purchase drugs” are unsupported conclusory statements. The basis of the affiant’s belief is clearly referenced from Appendix D (the confidential informant information) and in the case of the cellphone messages, these are produced in their entirety in the ITO. It was left entirely up to the issuing justice to consider the evidence and arrive at her own conclusions.
[36] I am unable to agree that the information set out at paragraphs 42, 43 or 44 of Appendix C is irrelevant or immaterial. Viewed in combination with paragraph 41 it is apparent that the affiant is simply drawing on his experience as a drug enforcement officer to support his belief that, on the evidence outlined, there were grounds to believe that the items to be searched for were at the place to be searched.
[37] I do not find that it was inflammatory in the concluding paragraph 55 to remind the reviewing justice of the extreme danger to the public posed by Fentanyl. Those facts are obvious. It might have been unnecessary commentary, but it was neither misleading nor inflammatory. I would not excise it.
[38] Finally, the affiant provided full, fair and frank disclosure of the confidential informant information. The affiant was open and honest about the negative aspects of the source which might detract from reliability, namely that the informant was a drug user, had a lengthy criminal record and had received financial reward from police for providing information in the past.
[39] Applying the three-prong test for assessing the value of confidential informant information relied on by police in R. v. Debot 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, I find as well that the information relied upon by police was both compelling and credible. The informant identified the individuals involved, the types of drugs being trafficked and provided both the location and accurate description of the premises out of which the trafficking was taking place. The informant provided consistent and similar information on two separate occasions. And even though the first tip did not result in any observation of drug activity, the informant was accurate in respect of the identity of the occupants and the description of the premises.
[40] In terms of credibility, it was apparent that the informant was a carded informant whose previous tips had led police to uncover drug crimes on multiple occasions. Information obtained from that CI in the nine months preceding the ITO had resulted in the execution of three separate search warrants and the seizure of a host of banned substances. While the CI was a drug user with a criminal record, none of those offences involved perjury/deceit. I agree with the suggestion that the CI’s involvement in the drug culture likely gave the CI insight into the methods and workings of drug traffickers and drug trafficking.
[41] The information was corroborated by police on the very day the search warrant was sought. The attendance by Chaput and Kara Shear at the 160 Virginia residence, the hand to hand exchange through the passenger window of the Cobalt and the text messages reviewed by DC Dinsmore, all lent credence to the information provided by the CI.
[42] Having conducted the Garofoli exercise and having excised certain portions of the ITO and amplified the record for omissions and misstatements, none of which I find were made deliberately or in bad faith. I am satisfied that a justice could have granted the authorization.
[43] The search of the residence at 160 Virginia and the seizure of the items listed in the warrant therefore did not infringe the accused’s rights under s. 8 of the Charter.
The Right to Counsel - s. 10(b)
[44] That leaves a consideration of the alleged violation of the accused’s rights under s. 10(b) of the Charter.
[45] I accept that the police provided the informational component of the right to counsel under s. 10(b) almost immediately upon arrest. DC Harrison provided rights to counsel in the kitchen area moments after the accused was subdued. Up until that point, police were acting appropriately. In these circumstances, and absent the turn of events which I will address below, I would not find the extended delay in the implementational component of the rights to counsel to have been offensive to the accused’s 10(b) rights for the following reasons: i) the accused was in handcuffs having just been subdued, ii) the house was dark and without hydro or running water; iii) the premises were extremely cluttered; iv) there was limited options for a call to be placed by or for the accused in a secure and private setting; and v) it was a fair distance between the 160 Virginia residence and the security and privacy found at the detachment. It may well have been that the implementational component of the rights to counsel could have been lawfully delayed for some time in these circumstances without offending any s. 10(b) rights. I would adopt the reasoning in R. v. Oar, [2018] A.J. 1296 at para. 32 and 34 where the reviewing judge determined that in routine cases where there is no danger of the accused providing incriminating evidence it is reasonable for an officer to wait until the accused gets to the station.
[46] The difficulty is that the accused here did ask to speak to a lawyer. DC Harrison was aware of that very early on in the detention. For whatever reasons, he failed to convey that request to DC Weishar into whose custody the accused was placed in the moments following the request to speak to counsel made to DC Harrison.
[47] At that point, things became unhinged. Whether it was because he had left the residence to obtain portable lights for the search or some other reason, we know that DC Weishar was not present when DC Harrison read the accused his rights in the kitchen; although he was aware of DC Harrison’s intention to do so. DC Weishar certainly did not overhear or witness the accused telling DC Harrison that he wished to speak to counsel when he got to the station. The problem was compounded when the accused was brought into the living room. DC Weishar did not inquire of DC Harrison about the accused having been given any rights to counsel. DC Weishar candidly admitted that he was unaware whether rights to counsel had been provided and equally unaware that the accused had requested to speak with counsel.
[48] Engaging with the accused in a discussion and addressing some of the latter’s concerns, DC Weishar advised the accused that the premises would be photographed, officers would conduct a search and that if drugs were located, both occupants of the residence, including the accused’s partner Simone Davies, would be charged.
[49] And here, I have concluded, the s. 10(b) breach occurred and a quite serious one at that. The accused then proceeded to confess that the drugs in the house were his, that Simone Davies had nothing to do with them and that the drugs could be found in the bedroom. The accused then led the officer into the bedroom where he pointed out the location of the drugs both under the bed and in a small pencil case sized safe. The accused even provided DC Weishar with the combination to the safe. While DC Weishar could not have known that the accused was about to both offer up a self-incriminating statement and to effectively hand over self-incriminating evidence, I find that it was his duty to ascertain whether rights to counsel had been afforded and whether the accused now in his charge had asked to speak with counsel. By failing to do so, there remained the danger that the accused would incriminate himself before the implementational component of the right to counsel could be put in place.
[50] DC Weishar was candid in admitting that the police should refrain from asking any further questions of an accused who has requested to speak to counsel. In my view, the duty is wider than that. Once a request to speak to counsel has been made, particularly in circumstances where, as here, the premises were secure, the accused and any other occupant were in custody, whatever evidence was to be found was not going to be removed and there remained ample time for the warranted search to be carried out, police must turn their attention away from the search and investigation and pursue with dispatch the implementational component of the right to counsel. Police must also refrain from engaging in any conduct, including discussions of possible outcomes and consequences of the search for the accused or people associated with him, because the danger remains too great that the accused might incriminate himself without having exercised his right to speak with counsel. Indeed, in this case, I would draw the inference that it was DC Weishar’s statement that all occupants of the house would be charged if drugs were found during the search which motivated the accused to self-incriminate and elicited from him, indirectly and unintentionally perhaps, the ownership, existence and location of the drugs.
[51] While I accept that it was impractical to afford the accused the ability to speak to counsel meaningfully and privately in a darkened, cluttered and hydro-less residence and no less impractical to do so in the back of the squad car, it remained incumbent upon police in the face of the accused’s request to speak to counsel, to ensure that they did not gather any evidence from him, through him or with his assistance until the implementational component of the right to counsel had occurred.
[52] I conclude that the accused suffered a violation of his s. 10(b) Charter rights.
S. 24(2) Analysis: R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 (S.C.C.)
[53] Having found a breach under s. 10(b), the focus of the court shifts to a consideration of remedy, and more particularly whether some or all the evidence collected by police during the search of the premises should be excluded at trial. This involves applying the three-prong test set out by the SCC in R. v. Grant.
[54] On the first prong of the R. v. Grant analysis, I find that the failure by the arresting officers, in particular DC Harrison and DC Weishar, to implement the right to counsel was quite serious. The evidence is clear that the accused, having just been arrested and subdued, was handcuffed and effectively at the mercy of police. The premises were secure. Anybody who could have had access to the drugs was in custody. Any drugs on the premises were not going to disappear or evaporate. There were many officers available to conduct the search and plenty of time left to conduct it. There were no exigent circumstances. Nevertheless, having not been afforded the opportunity to speak to counsel, the accused was permitted to participate and assist the police in the search of his premises. He effectively led them to the drugs, while at the same time providing an admission that they were his drugs. I find that, having delayed the implementational component of the right to counsel, it was incumbent upon police to decline any assistance or information offered by the accused.
[55] The fact that DC Weishar did not know that the accused had asked to speak to counsel before accepting the assistance of the latter does support a finding that there was no bad faith here. Still, the fact that DC Harrison omitted to tell his colleague that the accused had asked to speak to counsel taken with the fact that DC Weishar neglected to ask DC Harrison or otherwise inquire about the accused’s 10(b) situation speaks to the absolute disregard these officers displayed for the purpose and importance of the right to counsel. In my view, while falling short of bad faith, such disregard constituted neglectful, cavalier and careless conduct by police. I refuse to condone such conduct; equally I refuse to dismiss it as trivial or minor. It was serious Charter infringing conduct by the state. The first prong of the Grant analysis favours exclusion of the evidence gathered in the aftermath of the breach.
[56] The impact of the Charter breaching conduct on the accused calls for a more nuanced analysis. On the one hand, self-incriminating statements and conduct are about as significant an impact on a person as one can imagine. Recently, the Ontario Court of Appeal in R. v. Noel, 2019 ONCA 860, [2019] O.J. No. 5612, emphasized how the importance of the right to counsel cannot be understated (at paras. 22, 23 and 24):
The right to counsel without delay exists because those who are arrested or detained are apt to require immediate legal advice that they cannot access without help, because of their detention...
For example, an arrest and the search of one’s home can raise urgent legal issues about the lawfulness of the arrest and obligation to submit, as well as the validity of the search warrant and the scope of the authority that the search warrant gives to the police. Such information could be useful in preventing an unjustified search, before it happens...
Detention also raises questions of immediate importance relating to the detainee’s rights during detention, including the right against self-incrimination.
[57] The law has been clear for some time that until the requested access to counsel is provided, there is an obligation on the police to refrain from taking further investigative steps to elicit evidence: see R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 SCR 3 at p 12; R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 SCR 236, at p. 269. The right to counsel ensures that a person who is under arrest understands his right to remain silent and guards against the risk of involuntary self-incrimination: see R. v. Miller, [2019] O.J. No. 6555 ONSC at para. 40.
[58] Unfortunately, the real danger of an accused incriminating himself by words or deeds while a rightful request to speak with counsel remained outstanding, materialized in this case, leading to a serious and profound impact on the Charter protected interest of the accused under s. 10(b).
[59] On the other hand, the principle of discoverability is engaged here and is a necessary part of this stage of the Grant analysis. As the court stated in that case at para. 122:
The more likely it is that evidence would have been obtained even without the statement, the lesser the impact of the breach on the accused’s underlying interest against self-incrimination.
[60] The evidence is clear and essentially uncontroverted that the drugs both under the bed and in the safe would have been discovered by police without the accused’s participation in the course of any reasonably thorough search of the premises. Thus, the principle of discoverability would tend to attenuate the impact of the breach and weighs against exclusion of the evidence.
[61] However, it is important not to view the impact on Charter protected rights too narrowly. The right to counsel is of significant psychological value to the detainee. It reassures the detained person that he or she is not entirely at the mercy of the police. This was elaborated upon by Doherty J.A. in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 45:
The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of the access to counsel without delay should not be underestimated.
[62] Assessing the impact of the 10(b) breach in the circumstances of the case before it, the court went on to state at paragraph 46:
The significant psychological pressure brought to bear on the appellant by holding him without explanation and access to counsel for hours must be considered in evaluating the harm done to his Charter-protected interests.
[63] In the case at bar, I find that the psychological pressure being experienced by the accused while being detained was revealed by his obvious concerns for his partner and what the repercussions of the search of the premises might mean for her. Being granted the opportunity to speak to counsel might well have alleviated that concern or dissuaded him from giving self-incriminating information. I am drawn to the conclusion that, with the accused: a) having just had his home forcibly entered by police; b) having been made aware of the search warrant; c) having been forcibly subdued and handcuffed, and d) having been left in the total control of police, the psychological pressure on the accused would have been enormous. In the circumstances of this case, I find that, having not being afforded the opportunity to speak to counsel even though his wish to do so had been clearly expressed, the accused was left in a period of limbo during which he took the decision to incriminate himself and offer assistance to police when he did not have to do so. This I find amounts to a serious and profound impact on his Charter protected rights to retain and instruct counsel without delay. I am unable to find that the impact on that Charter protected right is attenuated by the discoverability of the evidence. On balance, the impact of the Charter breaching conduct on the accused’s protected rights favours exclusion of the evidence.
[64] Finally, I find that the administration of criminal justice would be brought into disrepute by the admission of the evidence. I acknowledge that the accused’s self-incriminating statement and the drugs found at the premises constitute important evidence for the Crown’s case. I appreciate that drugs such as Fentanyl are currently a grave scourge on our community and that the public has an interest in the adjudication of drug cases on their merits. However, the right to consult with counsel and the need to avoid self-incrimination while the implementational component of that right is being facilitated are of paramount importance. Police need to be reminded and encouraged that the obligation to facilitate contact with counsel must be assigned the highest priority and should give way to other considerations (officer and public safety, the continuity and efficiency of investigations and searches and the need to preserve evidence) only when circumstances are truly exigent. Here they were not. The premises were secure; the occupants in custody. There were no officer or public safety issues. There was no danger of evidence disappearing. The warrant was effective for another 24 hours or more: there was enough time remaining to conduct the search under the warrant. Priority should have been given to the implementation of the right to counsel. It was not. Society’s interest in the upholding of Charter protected rights should be on a par with society’s interest in the prosecution of drug offences. I would conclude that the third factor in the Grant analysis is neutral; it certainly does not favour inclusion of the evidence.
[65] For the reasons set out above, I have concluded that the accused did not suffer a breach of his section 8 Charter rights as a result of the police search of Chaput’s cellphone. As well, I find that the search warrant granted by the justice on August 3, 2017 was valid and lawful. However, I find that the accused did experience a serious infringement of his s. 10 (b) right to counsel; the remedy must be an exclusion of evidence under s. 24(2) of the Charter.
[66] It is therefore ordered that the Crown is precluded from entering into evidence at trial any statements or utterances made by the accused as well as any evidence of the drugs found or located at 160 Virginia Ave, Georgina after 22h25 on August 3, 2017.
FORM 2
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, Cathy Knelsen, certify that this document is a true and accurate transcript of the recording of R. v. Somerville in the Ontario Superior Court of Justice, held at 50 Eagle Street West, Newmarket, Ontario, taken from Recording No. 4911-402-20200128-085515 which have been certified in Form 1.
This certification does not apply to the Reasons for Judgment which were judicially edited.
March 25th, 2020 ________________________
Cathy Knelsen, ACT/CCR