Court File and Parties

COURT FILE NO.: CRIMJ(P) 1900/19 DATE: 2020 12 17

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Jennifer Goulin, for the Crown (Respondent)

- and -

GEORGE BAYUK Corey Nishio, for the Accused (Applicant)

HEARD: October 26, 27, 2020

EXCLUSION OF EVIDENCE RULING (Voir Dire)

Fowler Byrne J.

[1] The Accused, Mr. George Bayuk, applies for the exclusion of evidence which was obtained by the Ontario Provincial Police (“OPP”) in violation of his rights under sections 8 and 10(b) of the Canadian Charter of Rights and Freedoms (“Charter”).

[2] In his Notice of Application, the Defence identifies two violations:

a) There was a delay in advising Mr. Bayuk of his right to counsel upon being arrested, contrary to s. 10 (b); and

b) a search of the subject vehicle at the OPP detachment was unlawful, contrary to s. 8.

[3] The exact evidence to be excluded was not specified. Instead, the court was asked to exclude any evidence obtained in violation of Mr. Bayuk’s s. 8 and s. 10(b) Charter rights.

I. The Charge

[4] Mr. Bayuk is charged with the following offences:

a) Careless storage of ammunition, contrary to s. 86(1) of the Criminal Code, R.S.C. 1985, c. C-46 (“CC”);

b) Two counts of illegal possession of a firearm, contrary to s. 92(1) of the CC;

c) Two counts of possession of a prohibited loaded firearm, contrary to s. 95 of the CC;

d) Possession of stolen property, contrary to s. 354(1)(a) of the CC; and

e) Breach of his recognizance, contrary to s. 145(3) of the CC.

II. Background

[5] On February 28, 2019, Mr. Bayuk was driving his Honda Accord (“the Vehicle”) on Burnhamthorpe Road West around the intersection of Kariya Drive in Mississauga, Ontario when he was pulled over by Officer Caringi of the OPP. Officer Caringi pulled Mr. Bayuk’s vehicle over because a search in the officer’s electronic database showed that insurance on the Vehicle was “unconfirmed”. The Vehicle came to stop on Enfield Place, in Mississauga. Mr. Bayuk was the driver of the Vehicle and Mr. D’Ante Rogers was seated in the passenger seat.

[6] When Officer Caringi approached the vehicle, he smelled fresh marijuana and observed some loose cannabis, or “shake”, in and around the centre console of the vehicle. Mr. Bayuk was asked to produce his license, ownership and proof of insurance. No proof of insurance was provided.

[7] Officer Caringi then advised Mr. Bayuk that he was going to search the vehicle pursuant to the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1 (“CCA”). Officer Caringi then looked inside the driver’s side window and saw a small black plastic baggie where Mr. Bayuk’s elbow was. He assumed it was drugs, given what he observed already. He asked Mr. Bayuk to hand him the bag, which Mr. Bayuk did. Officer Caringi said the bag felt heavy. He asked Mr. Bayuk what it was. Mr. Bayuk replied, “I don’t know”. Officer Caringi opened the baggie and found a number of 9 mm bullets.

[8] Officer Caringi placed the bag of bullets on top of the car and at 10:41 p.m., advised both Mr. Bayuk and Mr. Rogers that they were under arrest for the unauthorized possession of ammunition.

[9] As of this day, Officer Caringi had been a police officer for just a little over a year and half. He called for assistance over his police radio. He was concerned for his safety. He assumed that since he found bullets, there was possibly a firearm in the Vehicle. Officer Caringi instructed Mr. Rogers to keep his hands on the dash, while he removed Mr. Bayuk from the Vehicle and put him in handcuffs. He patted down Mr. Bayuk and found some cash and a credit card. Mr. Bayuk was placed in the back of Officer Caringi’s cruiser.

[10] It is conceded that Mr. Bayuk was not advised of his right to retain and instruct counsel at the time he was arrested. Mr. Bayuk made no statements and Officer Caringi asked no questions. When asked why he did not caution Mr. Bayuk and advise him of his right to counsel at the time of his arrest for the ammunition, Officer Caringi admitted it was an oversight. He stated that he had not come across ammunition in his career to date, that he was a bit overwhelmed and was worried that there was a weapon in the car. He first wanted to get Mr. Bayuk and Mr. Rogers out of the car and placed safely in the back of the police cruisers, and start the search as soon as he could.

[11] At 10:43 p.m., Officer Longman arrived at the scene. Officer Caringi advised Officer Longman that Mr. Rogers had already been arrested and asked that he be placed in Officer Longman’s cruiser, which he was. Officer Cartelli arrived at 10:52 p.m.

[12] With Mr. Bayuk and Mr. Rogers out of the vehicle and in the police cruisers, Officer Caringi started his search of the Vehicle at the side of the road. He started before Officer Cartellli arrived, while Officer Longman stood watch. The Vehicle was parked on Enfield Place, which is a mixed residential and commercial area. Officer Caringi stated that he knew the area as one that they patrol for criminal activity. He said there was no traffic, but people were walking by. It was a dark, cold night with dimly lit streetlights.

[13] Once Officer Cartelli arrived, all three officers were involved in the Vehicle search: Officer Caringi searched the driver’s side, Officer Cartelli searched the passenger side, and Officer Longman stood alongside of the Vehicle while they conducted the search. Officer Caringi was looking specifically for a firearm, given his discovery of the bullets. While searching, Officer Caringi looked for hidden compartments in the car. He pulled on the driver side door panel, on other door panels; he looked under the steering wheel, under the driver’s side seat and the glove box, and tugged on it. He also looked at the roof and where gas is put in the car. The Vehicle was very messy, with a great deal of clutter. They also looked in the spare tire compartment in the trunk. He and Officer Cartelli did find more evidence of cannabis, approximately 5 cell phones, and a backpack in the backseat, which contained a bag of fresh marijuana. In the trunk they found loose papers and a brown folder with two Ontario license plates. They ran the plates through their search system at approximately 11:00 p.m. and found that they were stolen a few days prior. They spent approximately 10 minutes searching the Vehicle. The Defence concedes that this search at the roadside was an appropriate search incident to arrest.

[14] At 11:02 p.m., Officer Caringi arrested Mr. Bayuk for possession of stolen property. Officer Caringi then advised Mr. Bayuk of his right to counsel and he was cautioned. Mr. Bayuk asked to speak to duty counsel at that time and also gave Officer Caringi his father’s name and cell phone number and asked him to contact his father to see if his father had a phone number for a lawyer. Other than indicating he understood and asking Officer Caringi to call his father, Mr. Bayuk did not ask any questions of Officer Caringi nor did he make any statements.

[15] Officer Caringi then attended to Mr. Rogers and advised him of his rights and cautioned him at 11:06 p.m.

[16] Almost immediately after advising Mr. Rogers of his rights, Officer Caringi left the scene at 11:10 p.m. with Mr. Bayuk in his police cruiser. They were at the OPP detachment by 11:18 p.m.

[17] When Mr. Bayuk arrived at the detachment, he was patted down for a second time (by another officer) and then lodged in the cells. Officer Caringi then searched his own cruiser and found a bag of white substance underneath the rear seat. He then arrested Mr. Bayuk for possession of a Schedule I controlled substance at 11:38 p.m. Officer Caringi cautioned Mr. Bayuk again and advised him of his right to counsel at that time. Mr. Bayuk repeated that he wanted to speak to duty counsel and asked for Officer Caringi to call his father again to see if he had the number of a lawyer. Officer Caringi indicated that he doubted the sufficiency of his first pat down of Mr. Bayuk as a result of his discovery of a Schedule I controlled substance in his cruiser. Later, Officer Caringi decided not to pursue the charges for possession because he had not searched his cruiser prior to putting Mr. Bayuk in the back.

[18] Officer Caringi placed a call to duty counsel at 11:43 p.m. and also contacted Mr. Bayuk’s father at 11:51 p.m. Duty counsel called back at 12:01 a.m. and spoke to Mr. Bayuk at that time. No statements were made by Mr. Bayuk, nor was he questioned in any way between the time he was arrested and the time he spoke to counsel.

[19] With respect to the Vehicle, Officer Caringi maintains that he did not finish his search at the roadside, but rather paused it for a number of reasons. First, he was concerned with officer safety. The area was known for crime, they were off the main road, and had their backs exposed to the public while searching. He was nervous about who may show up. He did concede that his safety concerns were somewhat alleviated when Mr. Bayuk and Mr. Rogers were secured inside separate cruisers. Officer Longman was also watching out while the search continued and other officers arrived.

[20] Second, the environment was not the best, given the poor lighting and the cold weather. He did not think he could do a thorough enough search. This was despite the fact that there were streetlights, he had a flashlight and he had his cruiser headlights on parked about 2 car lengths behind the Vehicle. There was also some interior lighting in the Vehicle. This environment did allow him to see cannabis shake on the centre console from about 2 feet away. Officer Cartelli indicated that the lighting was very poor, but she could see facial characteristics.

[21] Third, Officer Caringi paused the search because he wanted to give Mr. Bayuk and Mr. Rogers the opportunity to contact counsel, which he believed would be best facilitated at the OPP detachment. When asked why he did not let Mr. Bayuk contact counsel from the scene, Officer Caringi indicated he was concerned the Mr. Bayuk would call someone to get him. Again, the presence of ammunition, drugs and stolen property concerned him greatly. He also did not think he could provide Mr. Bayuk with a secure line from which he could make a private call.

[22] Officer Cartelli, who assisted in the search, understood that she was to stay with the vehicle to ensure that it was towed back to the OPP detachment garage. She also stated that Officer Caringi wanted to get the prisoners to a facility where they could contact counsel. Officer Cartelli watched the tow truck driver hook up the Vehicle. She allowed the driver into the car to do up the windows, take off the parking brake and take out the keys. She made sure that he wore gloves. She followed the Vehicle to the detachment garage and then helped out with lodging the prisoners.

[23] When Officer Caringi returned to the detachment, he requested a canine to assist with his search of the Vehicle. This was denied. He also requested a “scene of crime officer” or “SOCO” which was also denied. Officer Caringi indicated there is no SOCO that works in the Peel Region, but only one that is required to cover an area extending from east of Toronto to the Niagara region.

[24] Having been denied extra assistance with his search, Officer Caringi resumed his search of the Vehicle at 1:05 a.m. on March 1, 2019. The Vehicle had been towed into bay number three at the OPP detachment. The lighting was better, it was temperature controlled and the garage door was locked. He resumed his search of the Vehicle with Officer Longman. Officer Caringi searched the driver’s side and Officer Longman searched the passenger side.

[25] When Officer Caringi was searching the front, he noticed a slight groove in the centre dashboard, where the radio was, which looked like it was tampered with. He saw this for the first time because of the better lighting. He pulled on the vents on the centre of the dashboard with one hand and the cover popped off, revealing two handguns, one with the magazine and one without. Both handguns were facing down. There was also a white plastic bag underneath the handguns, which was later revealed to contain more ammunition and some pills. In or around 1:14 a.m. the two officers immediately stopped the search and called their sergeant and the crime unit.

[26] At 1:48 p.m., Officer Caringi arrested Mr. Bayuk on the weapon related charges, read him his right to counsel and cautioned him again. Mr Bayuk asked that Officer Caringi contact his father again, and then asked to speak to a lawyer named David, out of Toronto. Mr Bayuk had no further information regarding this lawyer. Mr. Bayuk also indicated that he would like to speak to duty counsel. Officer Caringi was unable to locate the “David” that Mr. Bayuk wanted to speak to. He called Mr. Bayuk’s father again at 1:57 a.m., but his father had no further information about a lawyer. Another call to duty counsel was placed at 2:12 a.m. and at 2:16 a.m. Mr. Bayuk spoke to duty counsel.

[27] During this event, Officer Caringi took notes in his police notebook and on a “dashpad”. His dashpad notes are made contemporaneously, or shortly after the event they describe. His notes reflect a notation about a “PTA”, meaning a “promise to appear” undertaking and a non-association clause from the Canadian Police Information Centre (“CPIC”) record. When pressed if he was considering releasing Mr. Bayuk on a “promise to appear”, Mr. Caringi stated that he hadn’t decided at that time, given that he had never dealt with ammunitions charges before. Officer Caringi was not confident that his notes reflected an intention to release Mr. Bayuk on a “promise to appear” prior to finding the handguns. He was also told to prepare the bail package after the guns were located, which may explain this notation. He has no clear recollection of why he made those notations.

[28] Mr. Bayuk was interviewed by a detective, starting at 3:38 a.m. Mr. Bayuk was patted down by Officer Caringi at 3:30 a.m. before he was brought into the interview room. Officer Caringi indicated that he did this for officer safety reasons, and because the detective asked him to do so.

III. Preliminary Issue

[29] The Defence raised two new grounds for the exclusion of evidence for the first time in his closing argument at this voir dire. These issues were:

a) That the three pat down searches conducted on Mr. Bayuk were a violation of his s. 8 rights under the Charter; and

b) That Mr. Bayuk’s right to access counsel was violated.

[30] The Crown argues that it had no notice of these additional arguments. Had it received notice, either through the Defence’s Notice of Application, Factum or the report of the pre-trial judge, it would have asked additional or different questions in this voir dire. As a result, the Crown submits that this Court should not consider these arguments, or in the alternative, give them any significant weight. The Crown also indicated that should this Court consider excluding the evidence on these new grounds, the Crown will seek to re-open its case and call additional evidence on these new grounds.

[31] Rules 27.03 and 31.03 of the Criminal Proceedings Rules, SI/2012-7, address notice requirements in an application to exclude evidence in relation to a Charter challenge. The party bringing the application has a duty to set forth the grounds to be argued, including a concise statement of the constitutional issue to be raised, a statement of the constitutional principles to be argued and a reference to any statutory provision or rule upon which reliance will be placed. It should also provide a detailed description of the evidence that the applying party wishes to exclude and the grounds on which the request is being made. Finally, r. 34.03 states:

Where an applicant has failed to comply with the rules governing an application, the application shall not be heard unless the presiding judge grants leave, after taking into account all the circumstances of the case, including but not limited to:

(a) the nature of the applicant’s non-compliance with these rules;

(b) the right of the applicant to raise issues, including issues relating to the admissibility of evidence and to have those issues determined on their merits;

(c) the right of other parties to have a reasonable opportunity to respond to any issues raised by an applicant;

(d) the need for an expeditious determination of pre-trial applications and the orderly conduct of trial proceedings;

(e) the history of the pre-trial applications and the proceedings;

(f) any notice given to other parties about the issues raised in the pre-trial applications;

(g) the apparent merits of the application as reflected in any materials filed and any submissions made in the proceeding;

(h) any prejudice to any other party in the proceeding;

(i) the nature of the issues raised and the extent of their impact on the course of the trial or other proceeding;

(j) any explanation advanced for failure to comply with these rules; and,

(k) any other factors the judge considers relevant to his or her determination.

[32] With respect to the first new ground, the Defence argued that during the cross-examination of Officer Caringi in this voir dire, he heard for the first time that the third pat down was performed because the interviewing detective requested it, which was different than what was indicated in this officer’s notes. He argues he was entitled to cross-examine on this statement and argue any issues that may arise.

[33] With respect to the second new ground, the Defence argues that he is always entitled to raise any breaches that are relevant to his application under s. 24(2) of the Charter.

[34] With respect to both grounds, the Defence argues that these new issues became obvious only during his cross-examination. As a result, the Crown can either address them in her re-examination or by calling new evidence in reply. In that regard, the Crown made it clear that in the event the court is considering excluding any evidence by reason of the violation of Mr. Bayuk’s Charter rights with respect to these two new grounds, she will be seeking leave to re-open her case and call additional evidence.

[35] I have considered the two new grounds raised by the Defence. In particular, I have considered the possible merits raised in argument, the Defence’s right to raise these issues, the Crown’s right for a reasonable opportunity to respond and any prejudice that may arise. I have also recognized that the existence of these two alleged breaches may have an impact at the trial.

[36] I have also considered the Defence’s explanation for his failure to comply with these rules. While I agree that the Defence has the right to raise any breach of his client’s Charter rights, he must give notice of his intention to exclude evidence as a result. If an issue truly arose in the course of cross-examination, it should have been immediately raised, so that the Crown could consider their response. It should not have been left to closing argument.

[37] I have also considered that both parties agree that the Crown does have the right to call reply evidence in these circumstances if the Court is considering excluding evidence. After considering all these factors, I grant leave to the Defence to raise these two new grounds.

[38] Nonetheless, for the reasons set out below, I have determined that the Defence’s application on all grounds should be dismissed and therefore the requirement of the Crown to call evidence in reply is not required.

IV. Analysis – Section 8

A. Pat Down Searches of Accused

[39] It is agreed that Mr. Bayuk was subjected to three pat down searches. For all three, he was fully clothed each time and they included a pat down at the pockets.

[40] The Defence concedes that the first pat down search was appropriate, as it was to ensure officer safety and to look for evidence. The Defence also concedes that the second pat down search, prior to being lodged in the cells, was also for officer safety and to locate possible evidence. The issue arises with respect to the third pat down. Officer Caringi had just searched his cruiser and located a bag of cocaine. He started to doubt whether his pat down at the scene was thorough. The detective, having learned about the discovery of the firearms, requested another pat down. The detective was not advised of previous pat downs, nor did he ask if they occurred. Officer Caringi stated that he did the third pat down at the request of the detective, but he had no reason to believe it would result in any further discoveries. The Defence state that this was an unnecessary search by a stranger and therefore unreasonable and in violation of Mr. Bayuk’s s. 8 rights.

[41] To be reasonable, a search must be authorized by law, the authorizing law must be reasonable, and the search must be carried out in a reasonable manner: R. v. Caslake, [1998] 1 S.C.R. 51, at para. 10; R. v. Collins, [1987] 1 S.C.R. 265, at p. 278. A minimal search incident to a lawful detention can be reasonable if the purpose of the search is to ensure public or police safety. As long as one of the purposes for the search is proper, the search is lawful: R. v. Walker-King, 2011 ONSC 1353, at paras. 51-54.

[42] The third pat down did not seem to have any purpose other than to comply with the direction of a superior officer. Even if Officer Caringi doubted his first pat down he knew there was another one conducted by another officer when Mr. Bayuk was lodged. Mr. Bayuk had not left the detachment from the time he was brought in. Officer Caringi did not believe anything would be found, and nothing was.

[43] Accordingly, I do find that the third pat down was unreasonable and therefore a breach of Mr. Bayuk’s rights under s. 8 of the Charter.

B. Vehicle Search

[44] The Defence does not take issue with the search of the Vehicle at the roadside. The Vehicle was lawfully searched to ascertain whether marihuana was readily accessible, and continued pursuant to the Cannabis Control Act and the common law power to search incident to arrest.

[45] The Defence objects to the search that was conducted after the car was towed from the scene to the OPP detachment garage, and which resulted in the discovery of drugs, more ammunition and two firearms. It is argued that this search was conducted approximately two hours after the roadside search was halted, in a different location and was a repetition of the roadside search. There were too many intervening events between the two searches to support the Crown’s position that the search at the OPP detachment was a continuation of the roadside search. The Defence argues that the purposes of a search incident to arrest were no longer present back at the detachment. Accordingly, the search was not lawful and was therefore a violation of Mr. Bayuk’s s. 8 rights. He further argues that the firearms and other items found as a result of this illegal search, should be excluded.

[46] As stated in Caslake, at para. 17, the authority of a search incident to arrest must truly be incidental to the arrest in question. The search arises from the need of law enforcement to gain control of things or information, which outweighs an individual’s interest in privacy. The search has to be related to the purpose of the arrest.

[47] The three main purposes of a search incident to an arrest are (1) to ensure the safety of the police and public; (2) to protect evidence from destruction at the hands of the arrestee or others; and (3) to discover evidence that can be used at the arrestee’s trial: Caslake, at para. 19. Subjectively, the officer must have one of these purposes in mind when the search is conducted. Objectively, it must be reasonable that these purposes will be served by the search: Caslake, at para. 19. If the justification for the search is to find evidence, there must be a reasonable prospect of securing evidence for the offense for which the accused has been arrested: Caslake, at para. 22.

[48] There is no temporal limit as to when the search should occur after arrest, but it should be within a reasonable period. If there is a delay in the search after the arrest, the court can draw an inference that the search is not sufficiently connected to the arrest: Caslake, at para. 24.

[49] Based on the evidence, I am satisfied on the balance of probabilities that the search in the OPP detachment garage was a continuation of the search at the scene, all of which was incident to Mr. Bayuk’s arrest for unauthorized possession of ammunition and stolen property.

[50] As indicated herein, Mr. Bayuk was arrested for unauthorized possession of ammunition at 10:41 p.m. The search commenced after his arrest. Officer Caringi was a relatively new officer. He had never discovered ammunition before. Officer Caringi was genuinely concerned that there was a weapon in the Vehicle. He was concerned for his safety and the surrounding public if a weapon was present. Some of his safety concerns were addressed when fellow officers showed up and Mr. Bayuk and Mr. Rogers were arrested, but he was still concerned that there could be a weapon in the car. He was concerned that due to the darkness, the less than ideal lighting and the cold, that his roadside search was not as thorough as it should be.

[51] I accept that there was lighting at the scene sufficient to see shake on the centre console and to see facial expressions. I also accept that both Officer Caringi and Officer Cartelli searched the vehicle at the scene for approximately 10 minutes where they checked for hidden compartments in the car and the trunk. I also accept Officer Caringi’s evidence that once additional officers were on the scene and the two suspects were arrested and in the back of separate cruisers, his safety concerns for the officers were somewhat alleviated. Nonetheless, he was still concerned about the possibility of a gun on the scene and the possible danger to the public if firearms are were found.

[52] I also accept Officer Caringi’s evidence that he didn’t feel he had conducted a sufficient enough search at the scene, that his efforts were hampered by the conditions, that he was still concerned about the potential of an accomplice arriving to extricate Mr. Bayuk from the situation, and that he wanted to get the accused to the detachment to consult with counsel in a timely manner.

[53] I found Officer Caringi credible in his evidence. He freely admitted his nervousness at the scene, given the discovery of ammunition. He freely admitted his oversight in not advising Mr. Caringi of his right to counsel immediately upon his arrest. He freely admitted his self-doubt in the roadside search of the Vehicle and the pat down of Mr. Bayuk. His evidence was clear – because he found ammunition in the Vehicle, he was concerned that there would be a weapon in there as well. That not only posed a safety risk to the officers or the public, if it was not found, but would be important evidence at Mr. Bayuk’s trial. If he was satisfied that he had searched sufficiently for any evidence, there would have been no reason to have the Vehicle towed to the garage of the OPP detachment. It could have been left in the parking lot of the police station or at their impound yard. Instead, it was brought to a secure and controlled environment. Had Officer Caringi’s suspicions about the existence of a weapon been borne out at the scene, there may have been safety concerns for the police and for the public, given the pedestrian traffic in the area. I find all his concerns were reasonable in the circumstances.

[54] Once Officer Caringi was back at the detachment, the purpose of the search was to locate evidence related to Mr. Bayuk’s charges, which is an appropriate purpose. Officer Caringi’s conduct back at the detachment supports his subjective belief that there may still be evidence in the Vehicle that was reasonably connected to the charges. He asked for a canine unit, which was rejected. He asked for a SOCO, which was rejected. So, after the prisoner was lodged, he started his search again, in better lighting, with another officer. The firearms and other items were found shortly thereafter.

[55] Defence argues that if the canine unit had come to assist, this would be evidence that the search was a continuation of the roadside search, incident to arrest. Because this assistance was denied, Officer Caringi just repeated his earlier search. Because his earlier search only revealed the marijuana and stole license plates, it was objectively unreasonable to conclude that a repetition of this search would reveal anything further.

[56] I reject this submission. Objectively, it is reasonable to infer that once ammunition was found in the Vehicle, the weapon that could use that ammunition would be found as well. Officer Caringi’s evidence was clear that he did not think he did a good enough job at the scene, for the various reasons cited, and that he wanted to do a better job of it in a more secure location. Objectively, it is reasonable to assume that a more effective search could be conducted where the police did not have any safety concerns, the environment was more comfortable, and where they could take their time and proceed on a more thorough basis. Even though he did not receive the assistance of a canine unit, the continued search was more thorough because it extended to the upper centre console, which revealed the hidden weapons.

[57] I also do not find that the length of time between the commencement of the search at the roadside to the continuation of the search in the OPP detachment garage was unduly lengthy. Mr. Bayuk was arrested at 10:41. The roadside search lasted approximately 10 minutes before it was halted. It resumed approximately 2 hours later. Officer Caringi accounted for his actions during that time, all of which were related to the charges as against Mr. Bayuk and the administrative work that was required.

[58] It cannot be the desire of the courts that only searches done quickly at the scene, whatever the environmental and safety conditions, be considered lawful. It is preferable that any searches incident to arrest be done properly, even if that means in some instances, slower and more methodical, rather than quickly and less than thorough. A quick search in less than ideal circumstances could lead to inadequate policing and is more likely to compromise the Charter protections afforded the accused in the effort to find evidence and secure the scene.

[59] Of course, each instance must be assessed on its own facts. As in the case of a long interval between the arrest and the search, if the length of time between two parts of a search is unduly lengthy, or if a search is conducted in several unrelated locations, the court can draw an inference that the search is not sufficiently connected to the arrest. In the end, it is the subjective purpose of the search and the objective reasonableness of the search that is important. In this case, I do not find that the continuation of the search at the OPP detachment was unreasonable, nor the length of time it took to resume to be unreasonable.

[60] Accordingly, I find the search at the OPP detachment was a continuation of the search of the Vehicle incident to arrest, and that none of the evidence found should be excluded.

V. Analysis - Section 10 (b)

A. Delay in Advising of Right to Speak to Counsel

[61] When an individual is detained, s. 10(b) of the Charter is engaged, which imposes both informational and implementational duties on the police. The informational duty requires that the detainee be informed of the right to retain and instruct counsel without delay. The implementational obligation imposed on the police under s. 10(b) requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel, except in urgent and dangerous circumstances. This obligation also requires the police to refrain from eliciting incriminatory evidence from the detainee until they have had a reasonable opportunity to reach a lawyer, or the detainee has unequivocally waived the right to do so: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 38.

[62] It is agreed that Mr. Bayuk was pulled over shortly after 10:37 p.m. and arrested for possession of unauthorized ammunition by 10:41 p.m. It is also agreed that Mr. Bayuk was not advised of his right to speak to counsel until 11:02 p.m., approximately 23 minutes later. Officer Caringi admits that his failure to advise Mr. Bayuk of this right was an oversight on his part. Only one statement was made by Mr Bayuk just before being arrested for this charge, in which he indicated that he did not know what was in a small plastic bag. The Crown is not seeking to rely on this statement. No other statements were made by Mr. Bayuk before he was advised of his right to speak to counsel at 11:02 p.m. or before he actually spoke to duty counsel at 12:01 a.m.

[63] With respect to the other charges, Mr. Bayuk was advised of his right to speak to counsel immediately upon arrest.

[64] The Crown concedes that the failure of Officer Caringi to immediately advise Mr. Bayuk of his right to speak to counsel following his arrest for the ammunition is a violation of Mr. Bayuk’s s. 10 (b) rights, but submits that it is minor in nature and does not warrant the exclusion of any evidence. Based on the facts, there is no other violation of Mr. Bayuk’s right to be advised of his right to speak to counsel upon his arrest for the other charges.

B. Access to Counsel

[65] In addition to the 23 minute delay in advising Mr. Bayuk of his right to speak to counsel, Mr. Bayuk’s right to actually consult with counsel, in relation to his ammunition charge, was further delayed.

[66] Upon his arrest for possession of stolen property and upon being advised of his right to speak to counsel, Mr. Bayuk indicated that he wanted to speak to duty counsel and also asked Officer Caringi to call his father to get the name of a lawyer. This occurred at approximately 11:02 p.m. or shortly thereafter. Officer Caringi did not offer his cell phone to Mr. Bayuk, nor was one requested of him. The Defence offered no authority in support of the submission that Officer Caringi should have given Mr. Bayuk an opportunity to call counsel from the scene without being asked to do so.

[67] Within minutes of being advised of his right to retain and speak to counsel, Officer Caringi left the scene with Mr. Bayuk in his police cruiser and arrived at the OPP detachment by 11:18 p.m. As indicated above, it took about 25 minutes to get Mr. Bayuk lodged in the cells, and arrest him on the suspected cocaine found in the cruiser. A call was placed to duty counsel at 11:43 p.m. and a further call was placed to Mr. Bayuk’s father at 11:51 p.m. As indicated, no statements were made by Mr. Bayuk nor was he questioned in any way between the time he was arrested and the time he spoke to counsel. Accordingly, in addition to the 23 minute delay in being advised of his right to speak to counsel, a further 40 minutes passed from the time Mr Bayuk indicated he wanted to speak to counsel to when a call was made on his behalf.

[68] With respect to the charge of possession of stolen property, a call to duty counsel was made on his behalf at 11:43 p.m., within 40 minutes of his arrest, and he actually spoke to duty counsel within 59 minutes of his arrest. Again, no statements were made by Mr. Bayuk from the time of his arrest until which time he spoke to duty counsel on these charges.

[69] On the facts before me, there was no delay in accessing counsel upon Mr. Bayuk’s arrest for the firearms. He was arrested at 1:51 p.m. and a call was placed to duty counsel on his behalf at 2:12 a.m., less than 20 minutes later. Mr. Bayuk spoke to duty counsel by 2:16 a.m. During this time, Officer Carigni was also in communication with Mr. Bayuk’s father, trying to find another lawyer of his choice. As stated before, no statements were made by Mr. Bayuk from the time of his arrest until which time he spoke to duty counsel on any of his charges.

[70] Accordingly, I do find that Mr. Bayuk’s rights under 10(b) were breached by the delay in accessing counsel with respect to his ammunition and stolen property charges, but not with respect to the firearm and associated charges later that evening.

VI. Analysis – s. 24(2)

[71] Section 24(2) of the Charter is triggered where evidence is “obtained in a manner” that violates an accused’s Charter right. An inquiry under s. 24(2) examines the impact of admitting evidence obtained in breach of the Charter on public confidence in the justice system over the long term, based on (i) the seriousness of the Charter infringing state conduct, (ii) the impact of the breach on the accused’s Charter-protected interests and (iii) society’s interest in the adjudication of the case on the merits. The court’s role on a s. 24(2) application is to balance the assessments under these three inquiries and determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71.

[72] The third line of inquiry typically pulls towards a finding that admission would not bring the administration of justice into disrepute. While that pull is particularly strong where the evidence is reliable and critical to the Crown’s case, “the third line of inquiry cannot turn into a rubber stamp where all evidence is deemed reliable and critical to the Crown’s case at this stage… Where the first two inquiries, taken together, make a strong case for exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility”: R. v. Le, 2019 SCC 34, at para. 142 (emphasis in original).

[73] Any analysis under s. 24(2) should be conducted so that it takes into account the cumulative effect of the various Charter breaches: R. v. Culotta, 2018 ONCA 665, 142 O.R. (3d) 241, at para. 62.

A. Seriousness of Breach

[74] With respect to the unreasonable search, I do not find that the third pat down search of Mr. Bayuk was a serious infringement of Mr. Bayuk’s rights. The pat down was over his clothes. Since Mr. Bayuk was patted down the first two times, two handguns had been discovered in the Vehicle. The severity of Mr. Bayuk’s charges had escalated. I find that Officer Caringi acted in good faith considering all the circumstances. Defence counsel concedes that it is not a serious breach.

[75] It is a serious breach of a person’s rights when they are not immediately advised of their right to speak to counsel upon their detention. That being said, an inadvertent violation of a person’s rights is less serious than a wilful or reckless disregard of Charter rights.

[76] In the case before me, I find that Officer’s Caringi’s failure to advise Mr. Bayuk upon his arrest at 10:41 p.m. to be an inadvertent mistake by an inexperienced officer. As he indicated, he was surprised by the discovery of ammunition during a routine traffic stop. He was immediately concerned with safety and controlling the scene. On each subsequent arrest, Mr. Bayuk was immediately advised of his right to contact counsel. It is also telling that no effort was made by Officer Caringi to elicit statements of any type from Mr. Bayuk until after he had an opportunity to speak to counsel.

[77] The reasons for the delay in getting Mr. Bayuk back to the OPP detachment to access counsel are also reasonable. Officer Caringi, once the search was halted, acted with reasonable dispatch to get Mr. Bayuk to a secure location to contact counsel. Once Mr. Bayuk asked to speak to counsel, Officer Caringi made it a priority to give him the opportunity to do so, even though it resulted in the roadside search being halted.

[78] Defence highlights the practice of Officer Caringi of not affording an arrested person the opportunity to contact counsel from the roadside as indicative of a systemic problem, whether in training or practice, making the breach more serious in nature. I disagree. I see no evidence of a systemic problem or a disregard to Charter-protected rights. Officer Caringi made a call to leave the scene, based on safety and with the belief that a call to counsel in a private and secure location was preferable for Mr. Bayuk.

[79] Defence raised the case of R. v Thompson, 2020 ONCA 264, 62 C.R. (7th) 286, in which the accused was not advised of his right to speak to counsel for 18 minutes after his arrest and 21 minutes after he was detained. The Court of Appeal found the breach to be particularly serious because of a systemic problem within the Peel Regional Police in disregarding the constitutional obligations of those they detain. This case does not involve the Peel Regional Police. This court was not made aware of any finding or recognition that such systemic issues are prevalent with the OPP.

B. Impact of Breach

[80] The third pat down search of Mr. Bayuk had a minimal impact on Mr. Bayuk’s Charter-protected interests. The invasion of his privacy was minimal. While the search was of his person, it was fleeting and not intrusive and would not have had any significant impact on his dignity.

[81] With respect to Mr. Bayuk’s right to counsel, I find that the breach had minimal impact on his Charter-protected interests. He was arrested and placed in a cruiser by himself while the police conducted an admittedly lawful search of the Vehicle incident to arrest. He was then transported to the OPP detachment. No statement was offered by him or elicited from him after his arrest, prior to him consulting with counsel. The one statement he made before arrest is not being relied on by the Crown.

C. Societal Interests

[82] Given the minimal or inadvertent breach of Mr. Bayuk’s ss. 8 and 10(b) Charter rights, and the minimal impact of these breaches, I find that it would more likely bring the administration of justice into disrepute if any of the evidence secured by the police during the night of the arrest was excluded.

[83] The Defence cited the case of R. v Blake, 2010 ONCA 1, 71 C.R. (6th) 317, at para. 33, where Doherty J.A. stated: “If there were a taint of impropriety, or even inattention to constitutional standards, to be found in the police conduct, that might well be enough to tip the scales in favour of exclusion, given the very deleterious effect on the accused's legitimate privacy interests.”

[84] In this case, as in Blake, I see no such taint of impropriety. Accordingly, the evidence obtained by the police on the night in question shall not be excluded.

VII. Conclusion

[85] Accordingly, for the foregoing reasons, the application of the Defendant to exclude evidence is dismissed.

Fowler Byrne J. Released: December 17, 2020