COURT FILE NO.: CR-21-90000061-0000
DATE: 20210705
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
LATOYA CEBALLO Applicant
Anna Martin, for the Respondent
James Mencel, for the Applicant
HEARD at Toronto: May 17, 18, 19 and 20, 2021
DAVIES J.
A. Overview
[1] The Toronto Police received information from three confidential informants that Anthony Deans and Delon Ishmael were selling cocaine from various locations in Toronto. The police got a warrant to search three addresses and two vehicles for cocaine, drug paraphernalia, cell phones, keys and proceeds of crime. One of the addresses was 25 Mutual Street, Unit 103. The police believed that Mr. Ishmael lived at that address with Ms. Ceballo.
[2] The police executed the warrant at Ms. Ceballo’s apartment and found more than $70,000 in cash. They also found close to 60 grams of cocaine in the underground parking garage of the building. Ms. Ceballo was arrested and charged with possessing cocaine for the purpose of trafficking and possessing proceeds of crime.
[3] Ms. Ceballo brought an application to exclude the money and drugs seized by the police. Ms. Ceballo argues that the search of her residence violated her Charter rights because the Information to Obtain (“ITO”) sworn in support of the warrant did not disclose reasonable grounds to believe the police would find evidence of the offences being investigated in her apartment. Ms. Ceballo did not challenge the validity of the warrant as it related to the other locations.
[4] Ms. Ceballo argues that the police also violated her rights in two other ways. First, she argues the police violated her right to counsel because they did not put her in touch with a lawyer after her arrest. Second, she argues that the search of her cell phone, which was seized from her when she was arrested, was unreasonable. Ms. Ceballo is not asking for any evidence obtained as a result of these two Charter breaches to be excluded. The Crown does not intend to adduce any evidence from Ms. Ceballo’s cell phone or any statements Ms. Ceballo made after her arrest. Nonetheless, Ms. Ceballo argues the pattern of Charter infringing conduct by the police is relevant to whether the evidence seized from her apartment should be excluded.
[5] The Crown concedes that the police violated Ms. Ceballo’s right to counsel. The Crown also concedes that if the warrant for Ms. Ceballo’s apartment is invalid, the pattern of Charter-infringing conduct by the police would justify excluding the drugs and money seized. However, the Crown argues that the warrant is valid and the search of Ms. Ceballo’s apartment did not violate her rights.
[6] The Crown also argues that the breach of Ms. Ceballo’s right to counsel does not, on its own, justify the exclusion of the drugs and money found in her apartment. The Crown argues that the evidence in the apartment was not “obtained in a manner” that violated Ms. Ceballo’s right to counsel because there is no causal, temporal or contextual connection between that breach and the discovery of the evidence. In the alternative, the Crown argues that if the money and drugs were obtained in a manner that violates Ms. Ceballo’s right to counsel, the admission of the evidence would not bring the administration of justice into disrepute.
[7] In light of the Crown’s position, there are three issues for me to decide:
(a) Did the ITO disclose reasonable grounds to believe that evidence of the offences under investigation would be found in Ms. Ceballo’s apartment?
(b) If the warrant for Ms. Ceballo’s apartment is valid, were the drugs and money “obtained in a manner” that violates Ms. Ceballo’s right to counsel?
(c) If the evidence from Ms. Ceballo’s apartment was obtained in a manner that violates either her right to privacy or her right to counsel, should it be excluded?
[8] I find the warrant for Ms. Ceballo’s apartment is invalid because it does not disclose reasonable grounds to believe evidence of the offences being investigated would be found there. The drugs and money seized from Ms. Ceballo’s apartment are inadmissible.
B. Validity of the Warrant to search Ms. Ceballo’s apartment?
[9] The search warrant for Ms. Ceballo’s apartment is presumptively valid: R. v. Pires, 2005 SCC 66, [2005] 3 S.C.R. 343 at para. 33. The onus is on Ms. Ceballo to establish the warrant is not valid: R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305 at para. 66. The issue for me to decide is not whether I would have issued the warrant for Ms. Ceballo’s apartment if the application were presented to me. The issue for me to decide is whether there was a basis on which the warrant to search Ms. Ceballo’s apartment could have been issued: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at para. 51, Crevier, at para. 64. I must ask whether the ITO contains credible and reliable evidence to establish reasonable and probable grounds to believe an offence had been or is being committed and evidence of that offence would be found in Ms. Ceballo’s apartment: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at para. 40.
[10] Mr. Deans and Mr. Ishmael were the targets of the police investigation. Ms. Ceballo was not a target. The police sought a warrant for her apartment because they thought Mr. Ishmael was living with her. There is no information in the ITO connecting Ms. Ceballo to Mr. Deans other than through Mr. Ishmael. My analysis will, therefore, focus on information connecting Mr. Ishmael to Ms. Ceballo or her apartment.
[11] Ms. Ceballo argues that even if there were reasonable grounds to believe that Mr. Ishmael was trafficking cocaine, the ITO does not establish reasonable grounds to believe evidence of his offences would be found in her apartment.
[12] The grounds for issuing the warrant in this case are based largely on information from three confidential informants. Ms. Ceballo was provided with a redacted copy of the ITO to protect informer privilege. The Crown conceded the redacted ITO does not establish reasonable grounds for issuing the warrant. The Crown asked me to consider some of the redacted information when deciding whether the warrant could have been issued.
[13] I can only consider the unredacted ITO or parts of the unredacted ITO if Ms. Ceballo was given a summary of the redacted information that provides her with enough information to meaningfully challenge the warrant: R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1461. A detailed, paragraph-by-paragraph summary of most of the redactions was provided to Ms. Ceballo. Some paragraphs in the ITO could not be summarized without compromising the identity of the informants. The Crown asked me to disregard those paragraphs. The summary given to Ms. Ceballo notes which paragraphs the Crown asked me to disregard.
[14] Counsel for Ms. Ceballo conceded that summary was adequate for him to meaningfully challenge the warrant as it relates to Ms. Ceballo. I agree and I considered those portions of the unredacted ITO that were summarized. I did not consider the paragraphs for which no summary was provided.
[15] When assessing the information in the ITO from the confidential informants, three factors are relevant: are the informants credible, is the information provided compelling and did the police corroborate the information: R. v. Debot, [1989] 2 S.C.R. 1140 at p.1168. These three factors are assessed on the “totality of the circumstances.” Strength in relation to two factors can make up for weakness in the third: Debot at p.1168, Crevier at para. 67.
(i) Was the informant credible?
[16] This question focuses on the trustworthiness of the informants. The informants’ motivation for speaking to the police, their criminal record and their history of providing information to the police are relevant to this assessment: R. v. Greaves-Bissesarsingh, 2014 ONSC 4900, 314 C.C.C. (3d) 493 at para. 35, R. v. Woo, 2017 ONSC 7655 at para. 48.
[17] In this case, the ITO contains information that would have allowed the issuing justice to assess the credibility of each informant. The ITO discloses whether each informant has a criminal record and if they have a record whether it affects their credibility.
[18] The ITO discloses that each informant had a self-interested reason for providing information to the police, which tends to undermine their credibility.
[19] The ITO also discloses that each informant had provided reliable information to the police in the past. The nature of the information provided in the past is described, including whether the information was corroborated and whether it resulted in criminal charges. The ITO does not disclose the outcome of any criminal charges laid on the basis of information from the informants. Nonetheless, the fact that the informants are known to have provided reliable information in the past tends to support their credibility.
[20] Balancing all the factors, I am satisfied that each informant is somewhat credible.
(ii) Was the information about Mr. Ishmael compelling?
[21] Detailed information based on reasonably current, first-hand observations will generally be considered compelling. On the other hand, vague information, second-hand information or dated information, will be less compelling: Debot at p.168, Greaves-Bissesarsingh at para. 40.
[22] The information provided by the informants about Mr. Ishmael is compelling.
[23] The first informant told the police that “Bonds” was the head of a group dealing cocaine out of 184 River Street. The informant described a specific location or specific locations within that building where Bonds was selling drugs. This informant told the police about buying crack cocaine from Bonds at 184 River Street. The first informant identified a photograph of Mr. Ishmael as Bonds.
[24] The second informant told the police that “Bons” or “Bonds” was selling drugs at 184 River Street and out of a black Audi. This informant gave the police details about specific areas within 184 River Street where Bonds was engaging in drug-related activities. The second informant told the police that Bonds was working with his brothers “and his girl Sparkle.” This informant also told the police that Bonds was cooking drugs at “Cathy’s place” at the corner of Gerrard and Sumach. In late 2016, this informant told the police about buying cocaine from Bonds on more than one occasion. The second informant told the police about first meeting Bonds and provided identifying information about Bonds, including a cell phone number for Bonds. This informant also told the police that Bons “has a place on Mutual but actually lives somewhere else.”
[25] The third informant told the police that “Bons” and his girl “Sparkle” were “chopping” drugs at 320 Parliament Street. This informant described in detail a drug-related conversation with Bons that took place less than 24 hours before the informant spoke to the police. The third informant also told the police about seeing Mr. Ishmael take a bag from his black Audi. The third informant identified a photograph of Mr. Ishmael as “Bons”.
[26] The information provided by the informants in this case was compelling. The ITO disclosed whether the information provided by the informants was current. Each informant gave specific, detailed information about Mr. Ishmael’s identity and the locations where he was manufacturing and selling drugs. Each informant gave first-hand information about buying drugs from Mr. Ishmael or talking to Mr. Ishmael about his drug business.
(iii) Was the information from the informants corroborated?
[27] The police are not required to confirm each detail of an informant’s tip: Debot at p. 1172. The extent to which the police need to confirm information from an informant will depend on the informant’s credibility and the level of detail provided. As the Supreme Court explained in Debot, “the level of verification required may be higher where the police rely on an informant whose credibility cannot be assessed or where fewer details are provided and the risk of innocent coincidence is higher”: Debot at p. 1172. Meaningful corroboration requires more than confirmation of neutral or easily discernable facts: Woo at para. 51.
[28] The information provided by each informant corroborates the information provided by the other informants to some extent. For example, all of the informants describe Mr. Ishmael as part of a group of people dealing drugs in the same area of Toronto. All of the informants knew Mr. Ishmael by the same or similar nickname. Two of the informants identified a photograph of Mr. Ishmael as the person they had dealings with. All of the informants either bought drugs from Mr. Ishmael or spoke to Mr. Ishmael about his drug business.
[29] The police also corroborated some of the information provided through other investigative steps, including surveillance and database searches.
[30] The informants identified 184 River Street and 434 Gerrard Street as places where Mr. Ishmael and Mr. Deans sold or cooked drugs. Two of the informants told the police that Mr. Ishmael was using a black Audi as part of his business. Police surveillance corroborated this information. On March 3, 2017, the police saw Mr. Ishmael walk away from 184 River Street and get into a black Audi A4. They saw Mr. Ishmael a few hours later in his black Audi A4, which was stopped on Sumach Street just north of Gerrard outside of 434 Gerrard Street East. The police saw Mr. Deans come out of a townhouse unit at 434 Gerrard Street East and speak briefly to Mr. Ishmael through the passenger side window of the Audi A4.
[31] One of the informants told the police that Mr. Ishmael “cooks his dope at ‘Cathy’s’ place on Gerrard by Sumach (Corner house).” The police confirmed that tenant of the townhouse at 434 Gerrard Street they saw Mr. Deans leaving on March 3, 2017 was named Kathy.
(iv) Sufficiency of the grounds to believe that an offence was being committed and evidence would be found in Ms. Ceballo’s apartment.
[32] The three informants provided compelling information that Mr. Ishmael and Mr. Deans were selling cocaine. There were some issues that undermine the credibility of each informant. However, the police were able to corroborate some of the information provided about Mr. Ishmael and Mr. Deans’ drug operation, which makes up for any weakness in the informants’ credibility. The information provided by the three informants coupled with the confirmatory evidence establishes reasonable grounds to believe that Mr. Ishmael and Mr. Deans were trafficking cocaine in March 2017.
[33] The real question is whether there are grounds to believe that evidence of Mr. Ishmael’s criminal activity would be found in Ms. Ceballo’s apartment. The answer to this question turns on whether there is sufficient evidence connecting Ms. Ceballo to Mr. Ishmael’s criminal activity or connecting Mr. Ishmael to Ms. Ceballo’s apartment.
[34] One of the informants told the police that Mr. Ishmael was working with his “girl Sparkle”. Another informant told the police Sparkle had been “chopping drugs” out of 320 Parliament Street for a period of time. If there were reasonable grounds to believe that Ms. Ceballo is “Sparkle” that would likely provide reasonable grounds to conclude that evidence of the offences under investigation would be found in her apartment.
[35] In the ITO, the affiant asserts that Ms. Ceballo is “Sparkle.” The ITO does not disclose any basis for that assertion. None of the informants identify Ms. Ceballo as “Sparkle” or provide a description of “Sparkle”. The police did not see Ms. Ceballo at 320 Parliament Street or with Mr. Ishmael during their surveillance. There is simply no information in the ITO from which it could reasonably be inferred that Ms. Ceballo is the person referred to as “Sparkle” by the informants.
[36] The ITO notes that Ms. Ceballo had been investigated for or charged with drug related offences in the past. First, the ITO says the police investigated Ms. Ceballo and Mr. Ishmael for possession of a Schedule I substance in April 2015. The Crown admits that the information in the ITO about this incident is not accurate. Ms. Ceballo was investigated for possession of marijuana. She was cautioned but not charged. Second, Ms. Ceballo was arrested in March 2016 for possession of a small amount of cocaine for the purpose of trafficking. The ITO says that charge was still before the court. That is not accurate either. The March 2016 charge against Ms. Ceballo was withdrawn in May 2016. Third, Ms. Ceballo was arrested in May 2016 for possession of a Schedule 1 substance. Ms. Ceballo was released without charge. Finally, Ms. Ceballo was charged with possession of cocaine for the purpose of trafficking in July 2016. That charge was still before the Court when the ITO was sworn. Given there is no other evidence connecting Ms. Ceballo to Mr. Ishmael’s drug business, her prior criminal record alone cannot support an inference that she was working with Mr. Ishmael in March 2017.
[37] The remaining question is whether there are reasonable grounds to believe that evidence of the offences being committed by Mr. Ishmael would be found in Ms. Ceballo’s apartment.
[38] There was conflicting information about where Ms. Ceballo was living in March 2017. Her address on record with the Ministry of Transportation was 103 – 25 Mutual Street. Toronto Police records also show she lived at 25 Mutual Street, Unit 103. However, Ms. Ceballo was on bail in March 2017 that required her to live at a different address. The affiant failed to mention Ms. Ceballo’s bail condition in the ITO.
[39] There was also conflicting information about Mr. Ishmael’s address. According to the Ministry of Transportation record, Mr. Ishmael’s address was 295 Danforth Road. However, on February 20, 2017 – just two weeks before the warrant was issued – the police were called to an address on Birchmount Road in relation to a “domestic incident” involving Mr. Ishmael and a woman named Courtney Lucas.
[40] Despite the lack of clarity about Mr. Ishmael’s address, there was some information connecting Mr. Ishmael to Ms. Ceballo and to 25 Mutual Street, Unit 103 in March 2017. First, one of the informants said that Mr. Ishmael had a place on Mutual Street but lived elsewhere. Second, the black Audi A4 Mr. Ishmael was seen driving was registered to Ms. Ceballo at 25 Mutual Street, Unit 103. Finally, the police saw Mr. Ishmael get out of Mr. Deans’ car and walk into the parking garage of 25 Mutual Street at 9:25 p.m. on March 4, 2017. It appeared that Mr. Ishmael used a key fob to access the underground garage. The police waited for approximately 20 minutes and did not see Mr. Ishmael leave the parking garage.
[41] Based on the fact that Mr. Ishmael was seen driving a car registered to Ms. Ceballo and was seen entering the parking garage of 25 Mutual Street apparently using a key fob, the affiant states that he formed a “reasonable belief” that Mr. Ishmael lived at 25 Mutual Street, Unit 103. The affiant then provides the following basis for believing evidence will be found at Ms. Ceballo’s apartment:
It is my experience that drug dealers will keep cash proceeds of crime at their family homes as they feel this is the safest and most secure place to store this money. It is also my experience that drug dealers will store debt lists and cellular phones at their family homes for the same reason….I also believe that ISHMAEL is residing with the woman who owns his car, at her address at 103 – 25 Mutual Street.
[42] In my view, the ITO does not disclose reasonable grounds to believe that Mr. Ishmael was living at 25 Mutual Street, Unit 103 in March 2017. The only informant who described where “Bonds” was living said he had a “place on Mutual” but lived elsewhere. No other details were provided about the address of Mr. Ishmael’s “place on Mutual.” Information in various databases also suggested that Mr. Ishmael was living somewhere other than 25 Mutual Street. The police never saw Mr. Ishmael with Ms. Ceballo. The police also never saw Mr. Ishmael enter or leave Ms. Ceballo’s unit at 25 Mutual Street. Ms. Ceballo’s unit is a townhouse that can be accessed from the building or from Mutual Street directly. The police only ever saw him enter the parking garage for the building. According to the ITO, 25 Mutual Street is a high-rise apartment building with townhouse units and apartment units. The affiant testified that there are approximately 100 units in the building.
[43] There was information that Ms. Ceballo and Mr. Ishmael were jointly investigated for possession of marijuana in April 2015, two years before the warrant was obtained in this case. The ITO says that Ms. Ceballo was in her car (not the black Audi A4) with Mr. Ishmael and one other person. The police searched the vehicle and found cash, drug paraphernalia and several cell phones. Given the passage of time, this occurrence has no value in establishing the nature of Ms. Ceballo and Mr. Ishmael’s relationship in March 2017.
[44] The fact that Mr. Ishmael was driving a car registered to Ms. Ceballo at 25 Mutual Street and was seen going into the parking lot of 25 Mutual Street once is not enough to support a reasonable inference that he lived there, particularly in light of the other information that he lived elsewhere. Even if the issuing justice was prepared to accept the affiant’s assertion that Mr. Ishmael likely kept cash and other evidence of his criminal activity at his home, the warrant does not disclose reasonable ground to believe that 25 Mutual Street, Unit 103 was Mr. Ishmael’s home. I, therefore, find that the warrant was invalid to the extent it authorized a search of 25 Mutual Street, Unit 103. I find that the search of that address was unreasonable and violated Ms. Ceballo’s rights.
C. Should the evidence seized from Ms. Ceballo’s apartment be excluded?
[45] Evidence obtained in violation of an accused’s Charter rights must be excluded if admitting it would bring the administration of justice into disrepute. In deciding whether the admission of the evidence seized from Ms. Ceballo’s apartment would bring the administration of justice into disrepute, I must consider three factors: the seriousness of the Charter violations, the impact of the violations on Ms. Ceballo’s Charter-protected interests and society’s interest in the adjudication of her case on its merits: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 71.
[46] The Crown concedes that if the search of Ms. Ceballo’s apartment violated her Charter rights, the evidence seized should be excluded. I agree and will briefly explain why.
(i) Seriousness of the Charter breaches
[47] Police conduct that violates a defendant’s Charter rights falls on a continuum from minor, inadvertent or technical on one end to intentional or flagrant on the other: Grant at para. 74. The fact that the police sought and obtained a warrant to search Ms. Ceballo’s apartment shows the breach of her rights under s. 8 of the Charter was not intentional. But the breach was not a minor or technical breach either.
[48] The affiant included information about Ms. Ceballo in the ITO that was incorrect, incomplete or misleading. The ITO says that Ms. Ceballo had two sets of drug-related charges before the court in March 2017. This was not true. One set of charges had been withdrawn. The ITO also says that Ms. Ceballo was arrested with Mr. Ishmael for possession of a schedule I substance (cocaine) in April 2015. This is also not accurate. Ms. Ceballo was arrested for possession of marijuana and released with a caution. The affiant also failed to include in the ITO that Ms. Ceballo was on bail in March 2017 and was required to live at 3208 Danforth Road.
[49] I granted leave to cross-examine the affiant on these errors. The affiant acknowledged the errors. He acknowledged that the ITO was misleading but said he did not intend to mislead the issuing justice.
[50] I accept that the errors in the ITO were careless errors, not deliberate misstatements or omissions. Nevertheless, the affiant had a duty to make “full, fair and frank disclosure of material facts”: Araujo at para. 46. This duty necessarily includes an obligation to be accurate. The affiant’s carelessness in drafting the ITO, particularly as it relates to Ms. Ceballo, discloses a “causal attitude” towards protecting her rights, which makes the breach of her rights under s. 8 of the Charter serious: Woo at para. 96, R. v. Rocha, 2012 ONCA 707 at para. 36
[51] The seriousness of the Charter-infringing conduct in this case is exacerbated by the fact that police also breached Ms. Ceballo’s right to counsel: R. v. Davidson, 2017 ONCA 257, 352 C.C.C. (3d) 420. The violation of Ms. Ceballo’s right to counsel is particularly egregious because the police breached a clear, long-standing, well-established rule that the police must implement the right to counsel immediately: R. v. Suberu, 2009 SCC 33, [2009] S.C.J. No. 33 at para. 41, R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 44.
[52] Ms. Ceballo was not home when the police executed the warrant. She came home about an hour later. Two special constables from the Toronto Community Housing Corporation (“TCHC”) were still at her apartment when she arrived. One of the TCHC constables alerted the police that Ms. Ceballo had returned, detained Ms. Ceballo and advised her that she had the right to speak to a lawyer. Ms. Ceballo told the TCHC constable she wanted to speak to a lawyer. She was told the police would let her speak to a lawyer when they took her to the police station.
[53] Ms. Ceballo was turned over to Detective Constable Court and advised of her right to counsel a second time. Ms. Ceballo told Officer Court she wanted to speak to a lawyer. Ms. Ceballo also told Officer Court she had a lawyer. Officer Court told Ms. Ceballo the police would call her lawyer for her when they got to the station.
[54] Ms. Ceballo was transported to the police station by two other officers who advised Ms. Ceballo of her right to counsel a third time. One of the transporting officers testified. He could not remember if Ms. Ceballo said she wanted to speak to a lawyer. He did remember, however, that he asked Ms. Ceballo if she wanted to speak to duty counsel if they could not reach her lawyer. She said, “no”.
[55] During the booking process at the station, Ms. Ceballo was told for a fourth time that she could speak to a lawyer if she wanted. Ms. Ceballo did not tell the booking officer she wanted to speak to counsel. Nor did she give the booking officer the name of her lawyer.
[56] Ms. Ceballo was put in a cell at the station at 11:38 p.m. The police never put Ms. Ceballo in touch with her lawyer.
[57] There was no investigative reason for the police to delay putting Ms. Ceballo in touch with her lawyer. By the time of Ms. Ceballo’s arrest, all the search warrants had been executed and the other suspects had been detained.
[58] The police simply failed to implement Ms. Ceballo’s right to counsel even though she clearly asserted her right to counsel twice. Officer Court testified that it was not her responsibility to put Ms. Ceballo in touch with counsel. She testified that responsibility would have been assigned to an officer at the station. One of the transporting officers also testified that it was not his responsibility to facilitate Ms. Ceballo’s right to counsel. Shockingly, no officer was ever tasked with calling a lawyer for Ms. Ceballo. This shows a complete indifference on the part of the investigating officers to Ms. Ceballo’s rights.
[59] The Charter-infringing conduct in this case is serious. The police breached Ms. Ceballo’s right to be free from unreasonable search and seizure and her right to counsel. Each breach is serious on its own. When considered together, the breaches make the police conduct particular serious. Given this finding, I do not need to address the search of Ms. Ceballo’s cell phone, which raises more complex issues about the legality of her arrest and the scope of the police power to search a cell phone incident to arrest.
[60] The pattern and seriousness of the police Charter-infringing conduct in this case strongly favours the exclusion of the evidence.
(ii) Impact on Ms. Ceballo’s Charter-protected interests
[61] The impact of both Charter violations was significant.
[62] The police searched Ms. Ceballo’s home. As the Supreme Court of Canada has recognized, there is “no place on earth” where a person has a greater expectation of privacy than in their home: R. v. Silveira, [1995] 2 S.C.R. 297, at para. 140. The search of her home without a valid warrant constitutes a very significant infringement of Ms. Ceballo’s privacy interests.
[63] The purpose of the right to counsel is to ensure people who are detained by the state can get the legal advice immediately. By failing to put Ms. Ceballo in touch with her lawyer, the police completely undermined the purpose of the right. Holding someone for hours without access to counsel also compromises their security of the person because counsel is the detainee’s “lifeline” to the outside world: R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135 at para. 45, R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561 at para. 105.
[64] Although Ms. Ceballo did not testify on the Charter application, I find that the impact of the police failure to implement her right to counsel was significant. The police apprehended Ms. Ceballo’s six-year-old daughter and turned her over to the Children’s Aid Society. A search of Ms. Ceballo’s phone after her arrest revealed that she sent two text messages as she was being arrested asking someone to contact the Children’s Aid Society about her children. Ms. Ceballo was in a very vulnerable position. She needed immediate legal advice in relation to her criminal charges and the apprehension of her child. This is not a case where the police delayed putting Ms. Ceballo in touch with counsel for a short period of time. The police appear to have not put her in touch with counsel at all despite her repeated requests.
[65] In my view, the impact of the breaches on Ms. Ceballo’s Charter-protected interests strongly favours the exclusion of the evidence as well.
(iii) Society’s Interest in an adjudication of Ms. Ceballo’s case on the merits
[66] The evidence seized from Ms. Ceballo’s apartment and parking garage is reliable evidence. The evidence is also crucial to the Crown’s case. If the drugs and money are excluded, the Crown will have no basis to proceed against Ms. Ceballo. This factor heavily favours admission. However, the Court of Appeal has held that if the seriousness of the breach and the impact of the breach on the defendant’s Charter protected interests both favour the exclusion of the evidence, the third factor will “seldom, if ever, tip the balance in favour of admissibility”: R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643 at para. 63.
D. Conclusion
[67] Given the seriousness of the multiple Charter violations and the impact of the breaches on Ms. Ceballo’s Charter-protected interests, I find that the admission of the drugs and money seized from her apartment would bring the administration of justice into disrepute. Ms. Ceballo’s application is, therefore, granted.
___________________________ Davies J.
Released: July 5, 2021
COURT FILE NO.: CR-21-90000061-0000
DATE: 20210705
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
LATOYA CEBALLO Applicant
REASONS FOR JUDGMENT
Davies J.
Released: July 5, 2021