SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-19-5255

DATE: 20210409

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

BRIAN MUSA

Defendant/Applicant

Avik Ghosh, for the Crown

Annamaria Enenajor, for the Defendant/Applicant

HEARD: March 1-4, 2021

Ruling on Charter ss. 8, 9, 10(a), 10(b) and 24(2) Application

CHARNEY J.:

Introduction

[1] The Applicant, Brian Musa, is charged with possession of cocaine, methamphetamine and fentanyl for the purposes of trafficking, as well as possession of a loaded prohibited firearm. He alleges that the police lacked reasonable and probable grounds to arrest him, that his arrest was undertaken in an unreasonable manner, and that the search incident to the arrest was therefore unlawful. Further, he argues that the police violated his right to counsel following his arrest. He seeks the exclusion of the evidence seized during the investigation.

[2] The seized evidence includes: a loaded semi-automatic Glock 40 calibre handgun, 13 rounds of ammunition, 130 grams of fentanyl, 35.8 grams of crack cocaine, 39 grams of methamphetamine, 59 grams of powdered cocaine, $13,272 cash and currency, a digital scale and four mobile telephones.

[3] The Crown takes the position that there were no violations of Mr. Musa’s Charter rights. In the alternative, the Crown argues that the evidence should not be excluded.

[4] For the reasons that follow, I find that there was no violation of any of Mr. Musa’s Charter rights, and his application is dismissed.

Facts

[5] On June 12, 2019, Detective Moore of the York Regional Police Service began an investigation into information from a colleague relating to a suspected drug trafficker who was alleged to be operating out of the Albion Rd. and Finch Ave. area of Toronto (Albion and Finch). The information came from a confidential informant, who described the alleged trafficker as a short Iraqi male with long hair, age 20-30, and a large nose. He was suspected of dealing cocaine, crack and fentanyl. The trafficker was alleged to be driving a Toyota Matrix with the Ontario licence plate CASD784.

[6] On June 12, 2019, Detective Moore and Detective Constable Penner (D/C Penner) went out to investigate and located a silver Toyota Corolla (Toyota or target car) with the licence plate CASD784 in the outdoor parking lot of an apartment complex at 75 Tandridge Crescent, approximately 4.4 km from Albion and Finch. They conducted surveillance and observed a man who they believed matched the description approach the vehicle from 75 Tandridge Crescent. He got into the driver’s seat of the Toyota and drove away. They did not follow the vehicle and ceased the surveillance for the day.

[7] On June 13, 2019, Detective Moore and D/C Penner returned to the area of 75 Tandridge Crescent in separate cars to continue the surveillance. At approximately noon, they were able to locate the Toyota parked in the same parking lot. At around 2:08 p.m. Detective Moore and D/C Penner observed the same person they had seen the day before walk toward the car with a case of water bottles. He got into the driver’s seat and drove away.

[8] Detective Moore and D/C Penner followed the Toyota in separate vehicles. D/C Penner lost sight of the vehicle, but Detective Moore followed the Toyota to a nearby residential street called Moncrieff Drive, approximately 2.3 kms. from Tandridge Crescent. The car parked on the west side of Moncrieff Drive. A red Toyota Corolla was parked on the east side of the street directly across from the target car.

[9] An unknown male exited the red Toyota Corolla and got into the front seat of the target car. After approximately two minutes, the unknown male got out, looked around and returned to his own vehicle. Both vehicles immediately drove away.

[10] Detective Moore could not see inside the target car, but noted that the unknown male had a clenched right fist which he put into his jacket pocket when he exited the target vehicle.

[11] Detective Moore returned to the office and ran the plates of the red Toyota Corolla and conducted a local system check on the vehicle, which disclosed that the vehicle had been stopped in March 2019 while it was operated by Roberto Barranca. There was a mug shot of Barranca on the system because of an arrest for a controlled substance. Detective Moore was satisfied that the mug shot was the same person as the unknown man he observed getting in and out of the target car on Moncrieff Drive.

[12] At the time of the investigation Detective Moore had ten years experience investigating street level drug transactions and had received training from senior officers and investigators on this subject. Based on this experience and training, as well as discussions he has had with drug dealers, he was of the opinion that the Moncrieff Drive transaction he observed was consistent with a drug transaction. In his experience drug transactions are characterized by a short interaction between two parties, often on a quiet residential street, followed by both parties leaving the area. While he believed that he had observed a drug transaction, Detective Moore testified that he did not believe that he had reasonable and probable grounds to arrest the target based only on this single suspect transaction.

[13] On June 17, 2019, Detective Moore learned from another detective that the target had been identified as Brian Musa of 1010 Tandridge Crescent. The information on Mr. Musa indicated that in 2017 Mr. Musa had been charged by the Toronto Police Service with robbery with a firearm and assault with a weapon. The individual who had been assaulted reported that she had seen Mr. Musa with a firearm previously to that incident. These charges were still outstanding.

[14] Detective Moore returned to the area of Tandridge Crescent on June 17, 2019 and observed the target car parked in front of garbage cans directly beside 1010 Tandridge Crescent. Mr. Musa was sitting in the driver’s seat of the parked car. No one else got in or out of the parked car that day.

[15] On June 18, 2019, Detective Moore held a briefing with members of his surveillance team of officers. The surveillance began at approximately 1:45 p.m. Detective Moore did not have continuous observations of the target throughout the day, but relied on the other members of his team to provide him with pertinent information over the radio.

[16] At 3:52 p.m. Detective Moore observed the target car parked in the driveway of a residential house at 50 Avening Drive (approximately 1 km from Finch and Albion). Detective Moore received information over the police radio from another officer, Detective Constable Brincovean (D/C Brincovean), who was also conducting surveillance at 50 Avening. D/C Brincovean informed Detective Moore that while the target car was parked at 50 Avening, an unknown male came out of the front door of the house and got into the right passenger seat of the target car. He remained inside the target car for approximately two minutes before exiting and returning to the house. D/C Brincovean could not see inside the car. Shortly after the unknown male returned to the house, the target car operated by Mr. Musa exited the driveway and left the area, travelling to a nearby plaza on Albion Rd.

[17] During the preliminary inquiry, Detective Moore testified that D/C Brincovean told him over the radio that the unknown male had a clenched fist as he exited the car. This turned out to be incorrect – at no time did D/C Brincovean relay this information over the radio. At the voir dire to this application, Detective Moore acknowledged this error, and testified that he did not know about the unknown male’s clenched fist until after the arrest, when he learned about it from a conversation with D/C Brincovean, and when he saw photographs taken by D/C Brincovean. Since Detective Moore did not know about the clenched fist until after the arrest, the clenched fist cannot form part of his reasonable and probable grounds for arrest.

[18] The clenched fist plays a prominent role in the defence theory of this case, and I will return to the issue of the clenched fist later in these Reasons.

[19] Detective Moore testified that he was of the opinion that this Avening Drive transaction was also consistent with a drug transaction. Like the Moncrieff Drive transaction, it was characterized by a brief interaction in Mr. Musa’s car. It was at this point that Detective Moore decided that he had reasonable and probable grounds to arrest Mr. Musa, based on the information from the confidential informant and the two brief transactions in the front seat of Mr. Musa’s car.

[20] Detective Moore testified that he decided not to call for Mr. Musa’s arrest at that point, but to wait to see if his team could observe another suspected drug transaction and catch Mr. Musa and a buyer in the act.

[21] At about 4:05 p.m. the target car returned to 50 Avening Drive and was observed parked in the driveway of the house. At 4:24 p.m. a grey Nissan arrived at 50 Avening and parked on the street. An unknown male exited the Nissan and walked into the driveway. Mr. Musa exited the target car and greeted the unknown male with a handshake in the air. The unknown male entered the driver’s seat of the target car for approximately 30 seconds while Mr. Musa remained outside the car. When the unknown male got out of the car he left the car door open, and did not appear to be holding anything. Mr. Musa then got back into the driver’s seat for 10-15 seconds before exiting with a small white plastic bag. Mr. Musa and the unknown male then approached the front door of 50 Avening Drive and were let into the house by the first unknown male.

[22] Mr. Musa and the other man remained in the house for approximately 30 minutes, until 4:55 p.m. Mr. Musa got into the front seat of the target car and the other man got into the passenger seat of the target car, where they remained for approximately five minutes. At 5:02 p.m. the other man exited the target car, returned to his Nissan and drove away. At 5:03 p.m. Mr. Musa left the area with the target car.

[23] Detective Moore testified that he did not consider this interaction between 4:05 p.m. and 5:02 p.m. to be indicative of a drug transaction. Mr. Musa and the other man appeared to know each other, greeted each other as friends, and remained inside the house at 50 Avening Drive for approximately 30 minutes. This interaction did not form part of his reasonable and probable grounds for arrest.

[24] Detective Moore advised his team over the radio that should they observe the applicant engage in another suspected drug transaction they would attempt to effect an arrest. Between 5:04 p.m. and 5:27 p.m. the police followed the target car as it drove around.

[25] At 5:27 p.m. Detective Moore received information over the radio from D/C Penner that Mr. Musa’s vehicle was parked on Forest Fountain Drive, a residential street in Vaughan. It was parked along the curb when an unknown male approached the target car and entered the front passenger seat. Detective Moore was of the opinion that this interaction was also consistent with a drug transaction, and, at 5:28 p.m., advised the team to attend the area and arrest the driver (Mr. Musa) and the passenger.

[26] The target car was boxed in by unmarked police cars and Mr. Musa was arrested at gun point. Six officers were involved in the arrest. Detective Moore had his firearm drawn. He identified himself as a police officer, told Mr. Musa that he was under arrest, and shouted commands at the applicant, who was compliant. The applicant was pulled out of the car and put on the ground on his stomach, and handcuffed behind his back. Detective Moore also shouted commands at the passenger, but the passenger was non-compliant, and it took approximately 5 minutes to get the passenger into custody and to control the scene.

[27] D/C Penner was designated as the arresting officer. He handcuffed the applicant and advised him that he was under arrest for “trafficking” while he was handcuffing him. D/C Penner stood the applicant up and took him to the police vehicle to search him and read him his rights. D/C Penner could hear yelling and was aware that there was some commotion at the scene because of the non-compliance of the passenger, but could not see exactly what was happening on the other side of the car. He described it as a “volatile situation”, and waited until the scene was secured before taking any additional steps. D/C Penner saw a Ziploc type sandwich bag partially sticking out of the applicant’s sweatshirt pocket. When it was removed, a purple powder spilled out - some onto the pavement and some onto the applicant’s sweatshirt. Purple powder indicates that the contents may include fentanyl.

[28] The presence of loose fentanyl is a serious safety risk. Exposure to the skin or inhaling airborne particles can result in respiratory failure and its presence was a danger to both the police and to Mr. Musa. D/C Penner’s first concern was to deal with this safety risk. He yelled to everyone present that there was fentanyl in the area, and immediately took Mr. Musa to the rear of the police truck where D/C Penner took off his Kevlar lined gloves (designed to protect from sharp objects) and put on latex gloves to protect him from any powder. He uncuffed Mr. Musa to remove and bag his sweatshirt, re-cuffed him and completed his search. The search was slower than usual because of D/C Penner’s concerns about inhaling airborne fentanyl. The officers did not have any Narcan (naloxone) with them that day, and called to have some delivered to the scene in the event that it was needed to counter the effects of the fentanyl.

[29] At 5:42 p.m. D/C Penner read Mr. Musa his right to counsel. D/C Penner testified that he read the rights from his notebook. He does not recite them from memory because he wants to make sure that he recites them accurately. He began by stating: “I am arresting you for trafficking and possession for the purposes of under the CDSA”. There is no dispute that the substance of the right to counsel was properly read. Mr. Musa responded that he understood his right to counsel, and that he wanted to speak to his lawyer, and gave D/C Penner his lawyer’s name.

[30] Another officer conducted the search of Mr. Musa’s car. The officer found multiple bags of drugs in the centre console, a wad of cash, and a loaded Glock handgun with 13 rounds of ammunition. At 5:56 p.m. Detective Moore advised Mr. Musa that the police had found a gun and that he was also charged with possession of a firearm.

[31] At no time did the police make any effort to interview or elicit information from the applicant.

[32] The unmarked vehicles used to effect the arrest of Mr. Musa were not equipped to transport him to the police station, so a transport vehicle was called. The transport vehicle arrived at 6:05 p.m. Officer Ma drove the transport vehicle. He was briefed on the arrested party, and advised to take extra precaution because of the possible presence of loose fentanyl. He was advised that Mr. Musa was arrested for trafficking, but was not told that Mr. Musa was also charged with possession of a firearm.

[33] Mr. Musa, still handcuffed, was put into the back of the transport van. The entire period inside the transport van is video and audio recorded. At 6:10 p.m. Officer Ma told Mr. Musa that he was arrested for “possession for the purposes of trafficking contrary to the CDSA” and re-read Mr. Musa his right to counsel and gave him his secondary caution. Mr. Musa repeated the name of his lawyer who he wanted to speak to. Officer Ma explained to Mr. Musa that there was no opportunity to speak to his lawyer privately until they got back to the police station, but that they would get him “lawyered up” when they got to the station.

[34] The transport van arrived at the police station at 6:45 p.m. During the ride, Officer Ma asked Mr. Musa whether he was comfortable, whether he wanted the window rolled down, and whether he had eaten dinner. Officer Ma complained about the slow traffic. He did not attempt to elicit any information from Mr. Musa other than his name, address, phone number and eye colour.

[35] Mr. Musa remained in the van in the sally port until 6:58 p.m. because Officer Ma had to wait for the staff sergeant to return and there were concerns about bringing Mr. Musa into the station because of the fentanyl alert.

[36] At 6:59 p.m. Officer Ma brought Mr. Musa into the police station. Generally, prisoners go through the booking procedure before they are given an opportunity to call their lawyer, but Officer Ma was concerned that the staff sergeant was not back yet, and he did not know how long it would be before Mr. Musa could be booked. Accordingly, Officer Ma found the applicant’s lawyer’s contact information and called the lawyer at 7:05 p.m. The lawyer was not in his office, but an associate was available to speak to Mr. Musa. Officer Ma confirmed with Mr. Musa that he wanted to speak with the associate, and Mr. Musa was brought into the duty room at 7:10 p.m., where he was able to speak to his lawyer privately. Mr. Musa went through the booking procedure after he spoke to his lawyer.

Analysis

(i) Reasonable and Probable Grounds for Arrest

[37] The applicant argues that Detective Moore lacked a subjective belief in reasonable and probable grounds for arrest, and that, in any event, those grounds were not objectively reasonable. He argues that there were innocent explanations for the conduct observed, and that the police did not actually see any drugs or hand to hand transactions before the arrest, because they could not see inside of his car.

[38] The legal principles relating to arrest without warrant were summarized by B.P. O’Marra J. in R. v. Anang, 2015 ONSC 3463, at paras. 28-33:

[28] A peace officer may, without warrant, arrest a person who on reasonable grounds he believes has committed an indictable offence. See Criminal Code, s. 495(1) (a).

[29] The arresting officer must subjectively believe that he or she has reasonable and probable grounds to arrest and those grounds must also be justified on an objective basis. A reasonable person placed in the position of the officer must be able to conclude there were reasonable and probable grounds for the arrest. See R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at paras. 15 and 16.

[30] Information that would not meet the reasonableness standard on an application for a search warrant may still meet that standard in the context of an arrest. See R. v. Golub, 1997 CanLII 6316 (ON CA), at para. 18.

[31] The test for reasonableness does not require that the matter be viewed from the perspective of a reasonable layperson but rather from the standard of a reasonable person “standing in the shoes of the police officer.” The reasonable person must be deemed to have the same level of experience as the officer whose actions are being scrutinized. An objective assessment of the grounds will thus include consideration of the officer’s experience as well as the dynamics within which he or she acted. See R. v. Hanson, [2009] O.J. No. 4152, at paras. 58 and 59 (SCO); and R. v. Tran, 2007 BCCA 491, [2007] B.C.J. No. 2341, at para. 12.

[32] The totality of the circumstances relied upon by the arresting officer will form the basis of the objective assessment. See R. v. Lawes, 2007 ONCA 10, [2007] O.J. No. 50, at para. 4.

[33] Officers may form the grounds to arrest based on information from other sources, including other officers, as well as their own observations. Officers on an investigative team are not silos restricted to act only on what they personally observe or information they receive. See R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140.

[39] In addition, the Court of Appeal for Ontario has reiterated that “[w]hen considering the objective reasonableness of the subjective grounds for arrest, a court must look to the totality of the circumstances, and it is not appropriate to consider each fact in isolation”: R. v. Labelle, 2016 ONCA 110, at para. 10, citing R. v. Lawes, 2007 ONCA 10, at para. 4; R v. Italiano, 2015 ONCA 179, at para. 8. See also R. v. Dhillon, 2016 ONCA 308, at para. 25.

[40] In R. v. Canary, 2018 ONCA 304, at paras. 21-23 and 30, the Court of Appeal summarized the applicable principles as follows (citations omitted):

There is both a subjective and objective component to the reasonable grounds inquiry. To fulfill the subjective requirement, the officer must hold an honest belief that the person committed an offence. The officer “must subjectively believe that there are reasonable grounds to make the arrest”: … To fulfill the objective requirement, the officer’s belief must be objectively reasonable in the circumstances known to the officer at the time of arrest… The objective inquiry asks whether “a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest”…

When considering whether an officer’s subjective belief is objectively reasonable, the court looks at the objectively discernible facts through the eyes of a reasonable person with the same knowledge, training and experience as the officer …Determining whether sufficient grounds exist to justify an exercise of police powers is not a “scientific or metaphysical exercise”, but one that calls for the application of “[c]ommon sense, flexibility, and practical everyday experience”…

The reasonable grounds standard does not require the establishment of a prima facie case or proof beyond a reasonable doubt. The test is met where, based on all of the circumstances known to the officer, “credibly-based probability” replaces suspicion…

Facts known to an officer at the time of arrest should not be considered within individual silos. The question is not whether each fact, standing alone, supports or undermines the grounds for an arrest. The question is whether the facts as a whole, seen through the eyes of a reasonable person who has the same knowledge, training and experience as the arresting officer, make the arrest objectively reasonable.

(a) Subjective Belief

[41] The applicant argues that Detective Moore did not hold an honest belief that Mr. Musa had committed an offence at the time of the arrest. As discussed at para. 17, above, at the preliminary inquiry, Detective Moore testified that one of the factors he relied on to form his subjective belief was the information that he claimed D/C Brincovean told him over the radio: that the unknown male at Avening Drive had a clenched fist as he exited the car. This turned out to be incorrect – at no time did D/C Brincovean relay this information over the radio. At the voir dire to this application, Detective Moore acknowledged this error, and testified that he did not know about the unknown male’s clenched until he spoke to D/C Brincovean and saw the photos taken by D/C Brincovean after the arrest was made.

[42] The applicant makes two arguments with regard to this error. Firstly, he argues that this error undermines Detective Moore’s credibility, arguing that Detective Moore was trying to embellish his evidence at the preliminary inquiry. Moreover, the applicant argues, the photographs taken by D/C Brincovean do not show the unknown male with a clenched fist when exiting the car, and Detective Moore’s clenched fist evidence was a fabrication regardless of its source or timing.

[43] The applicant has asked me to examine the photographs taken by D/C Brincovean, and argues that a close examination reveals that the unknown male’s hand was open. I have reviewed the photographs placed in evidence, and I reject the applicant’s argument on this point. To my eye, the photographs, while grainy, do show the unknown male with a clenched fist when he exits the car. I accept Detective Moore’s evidence that these photographs support D/C Brincovean’s observation that the unknown male had a clenched fist, and find that Detective Moore’s error at the preliminary inquiry was the result of an honest failure to remember the timing of when he received the information, not the accuracy of the information itself.

[44] That said, since the knowledge of the clenched fist did not arise until after the arrest, all agree that it cannot form any part of the reasonable and probable grounds analysis. The applicant argues that since Detective Moore testified at the preliminary inquiry that the clenched fist did contribute to his subjective belief in reasonable and probable grounds, removing that evidence from the analysis fatally undermines even his subjective belief.

[45] The clenched fist was not, however, critical to Detective Moore’s belief in reasonable and probable grounds. At the preliminary inquiry Detective Moore testified that the clenched fist was only one factor among many that he considered in forming his belief, and that he would have come to the same conclusion even if this factor had not been present.

[46] I accept Detective Moore’s evidence on this point and conclude that he did have a subjective belief that he had reasonable and probable grounds to arrest the applicant when the applicant was arrested. The removal of this one factor from the equation does not alter this conclusion.

[47] Finally, the applicant argues that the Court should reject Detective Moore’s evidence of subjective belief because Detective Moore did not write in his police notebook that he had formed such a belief. The applicant argues that Detective Moore’s failure to write this in his notebook undermines Detective Moore’s credibility on this point.

[48] While police officers have an obligation to take accurate notes during an investigation, “there is no law…that an officer must record everything he or she did or saw in their notebook to comply with the Crown’s disclosure obligation”: R. v. Brown, 2014 ONSC 1383, at para. 25, per Durno J. The absence of relevant information in an officer’s notes is a factor that the court may take into consideration is assessing credibility and reliability of the officer’s testimony, but does not, in and of itself amount to a Charter violation. See also: R. v. Salvati, 2020 ONSC 5864, at para. 72(4); R. v. Dougherty, 2018 ONCJ 633, at paras. 91-93.

[49] A police officer may endeavour to record important facts and observations in his or her notebook, but it is unlikely that a police officer will record his or her evolving thoughts and opinions. The absence of a notation such as “it was at this point that I formed the belief that I had reasonable and probable grounds to arrest” does not, in my view, undermine Detective Moore’s credibility on this issue.

(b) Objective Reasonableness

[50] The Crown relies on four grounds to support the objective reasonableness of the grounds for the arrest:

a. The information obtained from the confidential informant indicating that a person with a Toyota automobile with the licence plate CASD784 was suspected to be trafficking drugs in the Finch and Albion area of Toronto.

b. The brief transaction observed on Moncrieff Drive on June 13, 2019 and the information obtained about Roberto Barranca’s recent arrest for possession of a controlled substance.

c. The brief transaction observed on Avening Drive on June 18, 2019.

d. The brief transaction observed at the scene of the arrest on Forest Fountain Drive in Vaughan.

[51] There are numerous cases in which courts have accepted a series of brief meetings or transactions like those observed in this case as the type of conduct that can objectively support reasonable and probable grounds to believe that a trafficking offence has been committed. There is no requirement that the police observe drugs or a hand to hand transaction before they have reasonable and probable grounds to arrest: R. v. Merelles, 2016 ONCA 647, at paras. 26-28; Dhillon, at paras. 31-44; Anang, at paras. 35-38; R. v. Italiano, at paras. 3-7; and R. v. Guindon 2015 ONSC 4794, at paras. 56-57; R. v. Byfield, 2020 ONCA 515; R. v. Luong, 2010 BCCA 158, at para. 17; R v. Tran, 2021 ABCA 58, at paras. 22-26.

[52] The fact that there may also be innocent explanations for each incident viewed in isolation does not detract from its objective reasonableness when viewed in its totality: Guindon, at para. 59; Tran, at paras. 24 -25; Canary, at para. 30.

[53] The Crown points out that Detective Moore did not simply interpret every observation as a suspected drug transaction. For example, Detective Moore testified that he did not believe that the second, longer interaction at Avening Drive was consistent with a drug transaction because the parties greeted each other as friends and the interaction was more than just a brief meeting. I agree with the Crown that this adds to Detective Moore’s credibility because it demonstrates that he is bringing some objective analysis to the situations he is observing and looking for specific indicia of suspected drug transactions.

[54] The applicant relies on the Alberta Court of Appeal decision in R v. Quilop, 2017 ABCA 70, which states at paras. 32-34:

The Crown argued that it would be difficult to imagine an innocent explanation for what the police observed. We disagree. People buying and selling items online, from small collectibles to hockey tickets, for example, often conduct transactions in their homes or cars or on the street. And such transactions can be extremely brief where the parties have previously agreed on price or where the transaction is conditional upon a cursory inspection by the buyer.

The Crown points to the hand‑to‑hand exchange which, in the officer's experience, was typical of drug transactions. But in many innocent circumstances one person may hand a small object (such as a key or an earring) to another. Without information about the individuals or the building, the fact of a hand‑to‑hand exchange shortly after midnight does not elevate the circumstances to the objectively reasonable level necessary to justify detention.

The same could be said about the evidence in the case before us. We therefore conclude that the trial judge erred in finding that the grounds for the appellant’s arrest were objectively justifiable.

[55] The applicant argues that this same analysis would apply to the observed transactions in our case.

[56] The decision in Quilop must, however, be approached with extreme caution because even the Alberta Court of Appeal has itself resiled from these specific paragraphs. In R. v. Ha, 2018 ABCA 233, at paras. 33-34, the Court states:

In any event, contrary to what paragraph 32 of Quilop seems to be suggesting, the mere fact that there may be other plausible, innocent explanations for a transaction observed by a police officer does not prevent, or preclude, the formation by an experienced, knowledgeable police officer of reasonable and probable grounds that she or he is observing an illegal transaction.

Put another way, the presence of other possible, plausible, innocent explanations for police-observed behaviour does not legally or automatically negate credibly-based probability, that is, reasonable and probable grounds. All that Cst Campeau required was to have an objectively reasonable basis for believing the appellant was engaged in an illicit drug transaction, without necessarily ruling out potentially innocent inferences, defences or lawful excuses: see, for example: R v MacCannell, 2014 BCCA 254 at para 45, 314 CCC (3d) 514.

[57] See also R. v. Tran, 2021 ABCA 58, at paras. 24-25.

[58] The defence argues that the Crown cannot rely on the Forest Fountain Drive transaction to support the objective reasonableness of Detective Moore’s subjective belief because Detective Moore testified that he formed that subjective belief when he observed the Avening Drive transaction earlier in the day, before the Forest Fountain Drive transaction had occurred. At that point, defence argues, Detective Moore’s belief “crystalized” and its objective reasonableness must be assessed on the basis of the facts known when the subjective belief was first formed.

[59] I do not accept this argument. Detective Moore testified that, while he believed that he had reasonable and probable grounds to arrest the applicant after observing the Avening Drive transaction, he waited to see if he could catch the applicant in another suspected drug transaction before arresting him. There is nothing unusual about a police officer waiting for additional grounds after he forms his initial subjective belief, or adding to his reasonable and probable grounds as he continues to investigate prior to the arrest. The suggestion that the subjective belief “crystalizes” at a precise moment is misplaced. A subjective belief may grow stronger or weaker as the inherently dynamic situation continues to evolve. Subjective belief is like the proverbial scale, the scale does not freeze as soon as the evidence tips in one direction. As evidence is collected, the scale continues to go up or down, and the objective reasonableness of the belief must be measured at the time of the arrest.

[60] Consistent with this, the cases state that the objective reasonableness of subjective belief is measured by what the officer knew “at the time of the arrest”: R. v. Notaro, 2018 ONCA 449, at para. 40: “The proper question in an objective reasonable and probable grounds analysis … turns on the information the officer knew at the time of the evidential breath demand or arrest.” Similarly, in Canary, at para. 30: “Facts known to an officer at the time of arrest should not be considered within individual silos”. [Emphasis added] The “totality of the circumstances” must include all facts know at the time of the arrest.

[61] In my view, the surveillance evidence with respect to the three suspected drug transactions was sufficient to satisfy the objective reasonableness of the officer’s subjective belief.

[62] The Crown also relies on the fact that the information from the confidential informant was corroborated by the police surveillance, although this appears to be a minor part of the equation.

[63] When grounds to arrest include information from a confidential informant, the court must conduct a three-part analysis, and examine the totality of the circumstances, to determine whether the arrest is supportable: R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1168:

In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a “tip” originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.’s view that the “totality of the circumstances” must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.

[64] In the present case the Crown does not rely on the second factor, namely credibility. The Crown has not disclosed any information about the confidential informant, so we are left with the two other factors: was the information compelling and corroborated?

[65] In this regard, it is not enough for the police to corroborate the innocent and common place information provided by the informant (such as his licence plate and physical description), the police must be able to corroborate the criminal aspect of the information provided: that the target was a drug trafficker.

[66] The information provided by the confidential informant was specific with respect to the neighbourhood (Finch and Albion) and the licence plate of the car. This information was, however, readily available to the public. Some of the other information (for example the car was a Toyota Corolla, not a Toyota Matrix) proved to be inaccurate. It is not, however, necessary for the police to confirm every detail of the informant’s tip (Debot, at p. 1172).

[67] There is no dispute that the confidential information, even as confirmed as to location and licence plate, was not, by itself, sufficient to justify an arrest. It is the subsequent investigation and observation of the three suspected drug transactions, which corroborated the criminal aspect of the information provided by the confidential informant, that permits the confidential information to be included as a component, albeit a minor component, of the objective reasonableness of Detective Moore’s subjective belief.

[68] Based on the totality of the “objectively discernible facts through the eyes of a reasonable person with the same knowledge, training and experience” as Detective Moore, I am satisfied that the police, through their multi-day investigation, had reasonable grounds to arrest the applicant pursuant to s. 495(1) of the Criminal Code, and that the police did not violate his rights under s. 9 of the Charter. As a result, the searches incident to the arrest did not violate his right’s under Charter s. 8.

(ii) Manner of Arrest

[69] The applicant argues that the manner of his arrest was unreasonable because his arrest at gunpoint was unnecessary and dangerous.

[70] In R. v. Pino, 2016 ONCA 389, at para. 24, the Ontario Court of Appeal accepted the trial judge’s finding that although the police had reasonable and probable grounds to arrest Ms. Pino, they breached her s. 8 rights because the masked take down at gun point was unreasonable. The Court of Appeal held, at para. 24: “When an accused challenges the “manner” of a search, the Crown must justify the police’s conduct. Here, the police offered no specific justification for an armed take-down…”

[71] Detective Moore made the decision to effect the arrest at gunpoint. His decision was based on two factors: i) the information about the applicant’s outstanding charges for armed robbery and assault with a firearm, and (ii) Detective Moore’s previous experience and knowledge that drug traffickers commonly carry firearms to protect themselves from robbery during transactions. As a result of these two factors, he had a concern that the applicant could have possession of a firearm.

[72] The evidence in this case was that Detective Moore made an individualized decision to effect the arrest at gunpoint based on the facts known to him. He explained that while he is always concerned about the presence of firearms when arresting suspected drug traffickers, his decision in each case is “situational”.

[73] Detective Moore testified that his decision to proceed with a gunpoint arrest was based on the information available to him with regard to that specific situation. Not every arrest for drugs is done at gunpoint. In his opinion this was the safest way of effecting the arrest because it immediately deescalates the situation if the person to be arrested has access to a weapon and makes that person more compliant. If you are arresting someone who you believe has a firearm it is safer to have your firearm ready rather than reacting when the person being arrested goes for their firearm or pulls a gun out.

[74] The applicant argues that since he had only been charged with robbery and assault with a firearm, but had not yet been convicted, the police were not permitted to consider this information in assessing the need to effect a gunpoint arrest.

[75] The decisions made by the police as to how to conduct an arrest “must be assessed in light of the information reasonably available to them at the time the decision was made”: R. v. Cornell, 2010 SCC 31, at para. 4.

[76] In Cornell, at para. 20, the Supreme Court of Canada stated:

I would underline the words Chief Justice Dickson used in Genest: what must be present is evidence to support the conclusion that “there were grounds to be concerned about the possibility of violence”: p. 90. I respectfully agree with Slatter J.A. when he said in the present case that “[s]ection 8 of the Charter does not require the police to put their lives or safety on the line if there is even a low risk of weapons being present”: para. 24.

[77] Detective Moore’s decision for police firearms to be drawn was amply justified on the basis of the information available to him at the time. There was far more than a “low risk of weapons being present.” There were grounds to be concerned about the “possibility of violence”, and it was reasonable for the police to be concerned with their own safety and the safety of others, including the occupants of the car. As the Supreme Court of Canada stated in R. v. Cornell, 2010 SCC 31, at para. 24:

[T]he police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannot be expected to measure in advance with nuanced precision the amount of force the situation will require … It is often said of security measures that, if something happens, the measures were inadequate but that if nothing happens, they were excessive. These sorts of after-the-fact assessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances. The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback.

[78] The applicant’s counsel speculated that perhaps arresting the applicant at a different location might have been safer. This speculation was unsupported by any evidence. The arrest of an individual who may be armed with a firearm is an inherently risky activity. There was no evidence that this inherent risk could be mitigated by arresting the applicant at a different location.

(iii) Adequacy of Reasons for Arrest – Charter s. 10(a)

[79] Charter s. 10(a) guarantees that, upon arrest, every person has the right “to be informed promptly of the reasons therefor”.

[80] The applicant contends that the information provided to him on his arrest was deficient. When the applicant was being handcuffed at approximately 5:28 p.m., D/C Penner told the applicant that he was being arrested for “trafficking” without indicating what he was alleged to have trafficked.

[81] There are several trafficking offences in the Criminal Code, including trafficking persons, stolen goods, and weapons, in addition to trafficking controlled substances contrary to the Controlled Drugs and Substances Act.

[82] In addition to the initial arrest at 5:28 p.m., the applicant was informed of the reasons for his arrest on three other occasions:

i. As a preface to his reading of the right to counsel at 5:42 p.m., D/C Penner said: “I am arresting you for trafficking and possession for the purposes of under the CDSA”.

ii. When the firearm was found during the search of the car at 5:56 p.m., Detective Moore immediately informed the applicant that he would also be charged with possession of a firearm. There is no challenge with respect to this information or its timing.

iii. At 6:10 p.m. Officer Ma told the applicant that he was arrested for “possession for the purposes of trafficking contrary to the CDSA”.

[83] The applicant contends that the addition of the words “under the CDSA” at 5:42 p.m. and 6:10 p.m. was too little, too late, and did not cure the deficiencies in D/C Penner’s 5:28 p.m. statement. He argues that the reference to “CDSA” would not be meaningful to a layperson without legal knowledge as to what the initials CDSA stood for.

[84] In R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 SCR 869, the Supreme Court of Canada discussed the “double rationale” of s. 10(a) of the Charter. The Court stated, at pp. 886-87 (citations omitted):

The right to be promptly advised of the reason for one’s detention embodied in s. 10(a) of the Charter is founded most fundamentally on the notion that one is not obliged to submit to an arrest if one does not know the reasons for it... A second aspect of the right lies in its role as an adjunct to the right to counsel conferred by s. 10(b) of the Charter. As Wilson J. stated for the Court in R. v. Black, … “[a]n individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy”. In interpreting s. 10(a) in a purposive manner, regard must be had to the double rationale underlying the right.

[85] The Supreme Court established the following test to determine the adequacy of the information provided by the police, at p. 888:

When considering whether there has been a breach of s. 10(a) of the Charter, it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(b).

[86] In R. v. Roberts, 2018 ONCA 411, the Ontario Court of Appeal stated, at para. 78:

Section 10(a) does not require that detainees be told of the technical charges they may ultimately face. A person will be properly advised of the reason for their detention if they are given information that is sufficiently clear and simple to enable them to understand the reason for their detention and the extent of their jeopardy.

[87] In my view, Mr. Musa would understand from the surrounding circumstances that the reference to “trafficking” referred to trafficking drugs. The word “trafficking” is most commonly associated with drugs in ordinary language. Moreover, within minutes of the arrest D/C Penner discovered the Ziploc bag containing purple powder, and advised everyone about the possible presence of fentanyl. Given this context, it strains credulity to suggest that the applicant would not have understood that the term “trafficking” referred to the trafficking of drugs.

(iv) Charter s. 10(b) - Right to Counsel

[88] The Charter s. 10(b) right to counsel includes a number of component parts. They were summarized by the Supreme Court in R. v. Bartle (1994), 1994 CanLII 64 (SCC), 92 C.C.C. (3d) 289 at 301 (S.C.C.):

This court has said on numerous previous occasions that s. 10(b) of the Charter imposes the following duties on state authorities who arrest or detain a person:

(a) To inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel;

(b) If a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

(c) To refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

[89] The Supreme Court described the first duty as “informational” and the second and third duties as “implementational”.

[90] The applicant argues that the police failed to comply with both the informational and the implementational duties imposed on them by s.10(b) of the Charter. First, the applicant was not advised of his right to counsel immediately upon his arrest for trafficking at 5:29 p.m. D/C Penner did not advise Mr. Musa of his right to counsel until 5:42 p.m., approximately 13 minutes after the arrest.

[91] The second alleged violation of Charter s. 10(b) was the failure to readvise the applicant of his rights to counsel after he was informed that he would also be charged with possession of a firearm at 5:56 p.m.

[92] The third alleged violation of Charter s. 10(b) was the violation of the implementational duty by failing to facilitate the right to counsel until the applicant arrived at the police station at 7:05 p.m.

[93] I will address each of these arguments in turn.

a) The 13 minute delay in advising the applicant of his right to counsel

[94] The Supreme Court has confirmed that the informational duty must be performed “without delay”, which means “immediately”, “but does permit delay on the basis of concerns for officer or public safety”: R. v. Suberu, 2009 SCC 33, at paras. 2 and 41; R. v. Gonzales, 2017 ONCA 543, at para. 128; R. v. Wu, 2017 ONSC 1003, at para.78.

[95] As the applicant correctly points out, even a delay of 13 minutes will infringe the right to be informed of the right to counsel “without delay”, unless the delay is justified on the basis of concerns for officer or public safety.

[96] The Crown argues that the facts in this case fit within the “officer and public safety” exception, and that each of the 13 minutes can be accounted for by two specific exigent circumstances.

[97] First, although the applicant was compliant upon arrest, the passenger was not, and D/C Penner knew that there was some “commotion” on the passenger side of the car. He was not certain what the issue was, but had to focus on both the applicant and what was happening on the passenger side. It was a “volatile situation”.

[98] Second, the passenger was brought under control in under five minutes, following which D/C Penner discovered the purple powder believed to be fentanyl that spilled out of the Ziploc bag. For the next several minutes D/C Penner was focused on the safety issue arising from the presence of this powder. This included obtaining latex gloves, un-handcuffing Mr. Musa so his sweatshirt could be immediately removed and bagged, then re-handcuffing Mr. Musa and completing the search, which was slower than usual because of D/C Penner’s concerns about inhaling airborne fentanyl. When those measures were completed, D/C Penner read Mr. Musa his right to counsel.

[99] I am satisfied that these two circumstances were the reasons for the delay and that, together, they provide justification for the 13 minute delay in this case. As the Supreme Court of Canada recognized in Cornell, an arrest scene is an inherently dynamic situation, and officers may have legitimate concerns about their safety and the safety of their colleagues until all persons being arrested have been brought under control. This is particularly true in the present case, where the officers had a legitimate basis to be concerned that at least one of the persons being arrested had access to firearms. The brief 4 to 5 minute delay resulting from D/C Penner waiting for both suspects to be subdued was justified on the basis of officer safety.

[100] The fact that fentanyl is skin permeable or may be inhaled and is extremely toxic in small volumes made the presence of any loose fentanyl inherently dangerous to both the police and to Mr. Musa. D/C Penner had legitimate grounds for believing that the purple powder was fentanyl. The immediate precautions taken by D/C Penner to address these safety concerns took another 8 or 9 minutes. Again, this brief delay was justified on the basis of officer safety and the safety of the applicant.

[101] In my view, the safety justification for the 13 minute total delay in this case is very similar to the justification for the 7 minute delay permitted by the Court of Appeal in Gonzales, at para. 128 and the justification for the 7 minute delay permitted by the Court of Appeal in R. v. Pileggi, 2021 ONCA 4, at para. 62. Accordingly, the 13 minute delay before the informational component of the right to counsel could be read to the applicant does not amount to an infringement of s. 10(b) in these circumstances.

b) Failure to readvise the applicant of his right to counsel

[102] The second alleged violation of Charter s. 10(b) was the failure to readvise the applicant of his rights to counsel after he was informed that he would also be charged with possession of a firearm at 5:56 p.m.

[103] The applicant contends that there is a duty on police to repeat the warning concerning the right to counsel where there is a change in jeopardy. When the applicant was charged with the additional offence of possession of a firearm at 5:56 p.m., he should have been readvised of his right to counsel.

[104] In my view, the law does not require the rereading of the right to counsel in the circumstances of this case for the following reasons.

[105] In R. v. Sinclair, 2010 SCC 35, the Supreme Court of Canada held, at para. 64:

[W]e take the settled view to the effect that the right to counsel is essentially a one-time matter with few recognized exceptions, and expand upon this existing jurisprudence by recognizing the right to a further consultation with counsel in any case where a change in circumstances makes this necessary to fulfil s. 10(b)’s purpose of providing the detainee with advice in the new or emergent situation.

[106] While noting that the categories were not closed, the Supreme Court set out three circumstances where the right to further consultation with counsel is triggered: i) new procedures involving the detainee such as participation in a line-up or submitting to a polygraph, ii) a change in jeopardy “if the investigation takes a new and more serious turn as events unfold”, and iii) if events indicate that a detainee who has waived his right to counsel did not understand his initial s. 10(b) advice.

[107] The second category of “change in jeopardy” is relied on in this case. The right to further consultation with counsel when there is a change in jeopardy was explained by the Supreme Court, at para. 51:

The detainee is advised upon detention of the reasons for the detention: s. 10(a). The s. 10(b) advice and opportunity to consult counsel follows this. The advice given will be tailored to the situation as the detainee and his lawyer then understand it. If the investigation takes a new and more serious turn as events unfold, that advice may no longer be adequate to the actual situation, or jeopardy, the detainee faces. In order to fulfill the purpose of s. 10(b), the detainee must be given a further opportunity to consult with counsel and obtain advice on the new situation.

[108] See also Sinclair, at para. 57:

The failure to provide an additional opportunity to consult counsel will constitute a breach of s. 10(b) only when it becomes clear, as a result of changed circumstances or new developments, that the initial advice, viewed contextually, is no longer sufficient or correct.

[109] In the present case, the applicant was first read his right to counsel at 5:42 p.m. He had not yet consulted a lawyer when he was advised of the additional firearms charge at 5:56 pm. He was re-advised of his right to counsel again at 6:10 p.m. when he was taken into custody by Officer Ma. When the applicant did have an opportunity to consult with a lawyer at 7:10 p.m., the applicant knew about both charges and could seek legal advice on that basis. Accordingly, the purpose behind the second category does not apply to the facts of this case, and the right to be readvised was not triggered.

c) Delay in implementation of the right to counsel

[110] Once detained and read his right to counsel at 5:42 p.m., the applicant indicated his desire to speak with a specific lawyer. The applicant contends that the failure of the police to implement that right to counsel until he arrived at the police station at 7:05 p.m. was a violation of Charter s. 10(b). The applicant argues that D/C Penner should have implemented the right to counsel some time between 5:42 p.m. and 6:05 p.m. while they stood around waiting for the police transport to arrive. In the alternative, the applicant could have been provided with an opportunity to speak to a lawyer after Officer Ma arrived with the transport van and before they began the 40 minute drive to the station.

[111] Detective Moore and D/C Penner explained that the right to counsel could not be facilitated at the arrest scene because the applicant could not be given the privacy required to speak to counsel. The applicant was handcuffed behind his back, and could not hold a cell phone even if one was available. They also rejected the applicant’s counsel’s suggestion of putting a cell phone on speaker phone and leaving the applicant handcuffed but alone in a police vehicle, since there was no guarantee that they could not overhear a speaker phone conversation. Similarly, Officer Ma explained that protocol requires that everything in the transport van be recorded, and although the recording can be placed on mute, he would not rely on the mute button because, in his experience, it does not always work.

[112] The police officers testified that their usual procedure is to implement the right to counsel after the arrested person goes through the booking procedure at the police station. There is a special secure “duty room” at the police station where the arrested person is guaranteed privacy in their telephone conversation with their lawyer. The police can see into this room, but they cannot hear anything that is said. While arrested persons are usually booked before they speak to their lawyer, this usual procedure was not followed in this case because of the delay in booking the applicant, and the applicant was connected to his lawyer before he was booked.

[113] The Supreme Court of Canada outlined the implementational aspect of the right to counsel in R. v. Taylor, 2014 SCC 50.

[114] While the informational duty and the implementational duty must both be met “without delay”, this means something somewhat different in the informational context than in the implementational context. The informational duty must be met “immediately” (save for concerns for officer or public safety), but the implementational duty must be met “at the first reasonably available opportunity” (Taylor, paras. 24 and 28) or “the earliest practical opportunity” (Taylor, para. 32). In both cases “the burden is on the Crown to show that a given delay was reasonable in the circumstances.”

[115] The different wording is contextual and simply recognizes that there are privacy and safety concerns applicable to the implementation of the right that do not apply at the informational stage. It is well established that an arrested person is entitled to privacy while exercising his or her right to counsel: Pileggi, at para. 77: “Consultation in private is a vital component of the s. 10(b) right”.

[116] An arrested person must be free to discuss the circumstances of his or her case with counsel without fear of making admissions in the presence of the police. Privacy is not always available at the scene of the arrest; facilitating the right to privacy may give rise to safety and security concerns, particularly when an arrest is made out of doors.

[117] In Taylor, the Supreme Court of Canada held, at para. 27, “that in light of privacy and safety issues, the police are under no legal duty to provide their own cell phone to a detained individual.”

[118] The Court found, at para. 28:

[T]he police have both a duty to provide phone access as soon as practicable to reduce the possibility of accidental self-incrimination and to refrain from eliciting evidence from the individual before access to counsel has been facilitated. While s. 10(b) does not create a “right” to use a specific phone, it does guarantee that the individual will have access to a phone to exercise his right to counsel at the first reasonable opportunity. [Emphasis added.]

[119] In Taylor, the accused was taken to the hospital after his arrest. The Court confirmed that the s.10(b) obligation on the police was to “take steps to ascertain whether private access to a phone is in fact available” at the hospital (para. 34).

[120] In some circumstances a detained person must be permitted to use their own cell phone to immediately contact their lawyer. For example, in R. v. Tremblay, 2021 QCCA 24 and Freddi v. R., 2021 QCCA 249, both cases dealing specifically with a detainee arrested for impaired driving, the Quebec Court of Appeal held that while (Freddi at para. 40) “police officers are not obliged to let the detained person call his lawyer, on the spot, using a cell phone” they must take this possibility into account and consider whether this is practical in all of the circumstances. The Court summarized the principle at para. 45 of Freddi:

I agree that the presence of a cell phone does not in itself constitute a circumstance forcing the police to allow its use. This technology does not always answer the question of when the “first reasonable opportunity” arises. However, it remains a circumstance that must be taken into account when answering this question.

[121] Use of the detainee’s own cell phone would not, however, be appropriate in cases such as suspected drug transactions, where the detainee’s cell phone is a potential source of evidence. In such cases, permitting the detainee to use their own cell phone in private (even assuming that privacy could be arranged at the arrest site) would entail a risk that evidence would be deleted. There was no suggestion in the present case that the applicant should have been permitted to use any of the four cell phones seized by the police when they searched his car.

[122] In R. v. Devries, 2009 ONCA 477, the issue was whether a police officer who arrested an individual at the roadside on an impaired driving charge was required, when advising that person of the right to counsel, to tell the detainee that should he or she choose to consult counsel, that consultation will occur at the police station and not at the roadside. The Court held that there were “insurmountable practical problems” to including such a requirement and concluded that s. 10(b) did not include such a requirement.

[123] In reaching that conclusion, Doherty J.A. held that the right to speak to a lawyer “without delay” did not mean that a detainee could speak to a lawyer “instantly upon the officer’s completion of the 10(b) caution”. He stated, at paras. 30-31:

With respect to the contrary view, I do not think that the use of the word “now” in the context of the administration of the s. 10(b) caution at the roadside implies that the detainee can speak with a lawyer instantly upon the officer's completion of the s. 10(b) caution. Most police officers are not standing with a telephone in their outstretched hand as they complete the s. 10(b) caution. The officer’s statement to a detainee at the roadside that he or she may speak with a lawyer “now” would necessarily convey that the right to speak with a lawyer was contingent on the availability of a telephone that was useable in circumstances that would permit the detainee to speak with a lawyer for the purpose of obtaining legal advice.

Whether the steps taken by the police to make a telephone available to a detainee, in circumstances where he or she can speak with counsel, comply with the implementational requirements of s. 10(b) turns on the facts of the specific case and not on whether the police properly informed the detainee of his or her right to speak with counsel without delay.

[124] The Court further stated, at para. 34:

In most arrest situations, the arresting officer will not be in a position to hand the detained person a telephone immediately upon completing the s. 10(b) caution. In these situations, there will inevitably be some gap in time and place between the detained person's assertion of his or her wish to speak with counsel and the availability of the means of effecting that communication with counsel.

[125] Recall that in the present case the applicant was advised by Officer Ma that he would not be able to speak to his lawyer privately until they got back to the police station, but that they would get him “lawyered up” when they got to the station.

[126] In Pileggi, the Court of Appeal stated, at paras 76-77:

Defence counsel raised this issue during the cross-examination of D.C. Wray. He testified that, in his experience over eight years of policing, he always waited to facilitate access to counsel until the accused person was transported to the police station “where they can have a private conversation, where we can maintain custody of them.” This would not have been feasible at the house, which was being searched at the time. The appellant was handcuffed; a decision that the trial judge found to be reasonable. As explained above, I agree with her conclusion.

In these circumstances, it is difficult to fathom how the police could have accommodated a private conversation at the appellant’s home. Consultation in private is a vital component of the s. 10(b) right… The appellant’s right to consult counsel in private would have been compromised by attempting to facilitate contact at the house while a search was underway.

[127] The facts of this case are also very similar to the facts in R v. Marquette, 2020 ONSC 1993, where the Court rejected the s.10(b) claim on the same basis. Lococo J. stated, at para. 47:

… I have also concluded that there was no breach of the implementational component of Mr. Marquette’s rights to counsel in this case. In that regard, I agree with Crown counsel that there was no realistic opportunity to permit Mr. Marquette to consult with counsel before arriving at the police station. Some of the relevant considerations are addressed below.

a. I see no merit in the suggestion that Mr. Marquette could have been allowed to use one of the cell phones later found in his vehicle. Around the same time, a firearm was located in the vehicle, which had not been thoroughly searched at roadside for safety reasons. Allowing Mr. Marquette to use one of the cell phones in the vehicle had the prospect of interfering with the integrity of the investigation as well as raising issues of officer safety: see R. v. McWhirter, 2017 BCSC 2314, at para. 155.

b. As also noted in McWhirter, in light of privacy and safety issues, the police are under no legal duty to provide their own cell phone to a detained individual: see R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 27.

c. It would have been problematic at roadside to provide Mr. Marquette with the required privacy to consult counsel…

d. Once informed of his right to counsel, Mr Marquette was promptly taken to the police station, where neither access to a telephone nor the privacy to consult counsel was an issue.

[128] See also: R. v. Miller, 2019 ONSC 7417, at para. 20:

It was reasonable for Officer Haworth to delay putting Mr. Miller in touch with his lawyer until he was in a private room at the police station. There was no privacy at the scene of his arrest. It was a dynamic situation and there were legitimate concerns about officer and public safety.

[129] In R. v. Strong, 2020 ONSC 7528, Di Luca J. stated, at para. 37:

In my view, the police were under no obligation to facilitate contact with counsel at the roadside... The police are required to provide an opportunity to contact counsel “as soon as practicable”: see Taylor, supra, at paras. 28-28. They are not required to make an emergency run to a police station whenever they have someone in custody. They are also not required to provide a telephone to an arrestee while inside a police cruiser.

[130] Like the Pileggicase, the officers in this case testified that their general practice is to wait until the arrested person is transported to the police station before facilitating their right to counsel to ensure that the right to privacy is respected in a secure setting. Like the Pileggi case, it is difficult to fathom how the police could have accommodated the applicant’s right to a private conversation with his counsel while the applicant was handcuffed and waiting at the roadside or sitting in the police transport van.

[131] In this regard, the police practice of delaying the implementation of the right to counsel until the arrested person’s privacy can be assured is distinguishable from the police practice criticized by the Court of Appeal in R. v. Rover, 2018 ONCA 745. In Rover, the police practice was to delay the implementation of right to counsel until the search warrant was obtained and the premises searched or secured. The Court of Appeal was critical of this practice being used to routinely delay an arrested person’s right to counsel, stating, at paras. 32 and 33:

The police practice described by the officers replaces the narrow, case-specific exception to the constitutional right to speak to counsel without delay upon arrest with a protocol that routinely delays an arrested person’s access to counsel for an indeterminate time, usually hours, whenever the police, for whatever reason, deem it appropriate to arrest them before applying for a search warrant … For them, the decision to arrest the appellant before seeking the search warrant dictated that the appellant would not be allowed to contact a lawyer until the warrant was executed.

The police cannot create a justification for delaying access to counsel by choosing, for reasons of convenience or efficiency, to arrest an individual before seeking, obtaining, and executing a search warrant. Police efficiency and convenience cannot justify delaying an arrested person’s right to speak with counsel for several hours. [Emphasis added.]

[132] The delay in this case does not relate to police efficiency or convenience. The delay is not to further the police investigation. The delay is necessary to ensure compliance with a “vital component” of s. 10(b): that the consultation with counsel be done in private. The police have designed a special facility in the police station to ensure that this privacy is fully respected. As the Court of Appeal recognized in Pileggi, privacy cannot always be accommodated at the scene of the arrest. The practice at issue in this case does not “demonstrate a disregard of a fundamental constitutional right”, rather, it is designed to ensure the proper implementation of that right.

[133] Finally, I note that the practice is not carved in stone, and the evidence in this case is that the police did turn their mind to the specific circumstances of the case. For example, while the general practice is to implement the right to counsel after the booking procedure, Officer Ma testified that he departed from that general practice in this case because the booking procedure was delayed.

[134] On the evidence before me, I am satisfied that the police moved with reasonable dispatch in taking Mr. Musa from the scene to the police station, and it was reasonable in the circumstances of this case for the police to wait until they arrived at the police station to comply with the implementational duty to contact counsel. Once at the police station, the police moved promptly to facilitate the exercise of the right to counsel. The applicant has a right to privacy when communicating with counsel and I am satisfied, given the facts of this case, that the “first practical opportunity” to facilitate the right to counsel was at the police station. The police did not make any effort to interview or elicit information from the applicant. The implementational duty must be viewed contextually, and it is my view that the circumstances giving rise to the pre-station delay of a little more than one hour in this case do not amount to a breach of s. 10(b).

Conclusion

[135] For the foregoing reasons, Mr. Musa’s application alleging breach of his rights under ss. 8, 9, 10(a) and 10(b) of the Charter is dismissed.

Justice R.E. Charney

Released: April 9, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

BRIAN MUSA

Defendant/Applicant

RULING ON CHARTER ss. 8, 9, 10(a), 10(b) and 24(2) Application

Justice R.E. Charney

Released: April 9, 2021