Her Majesty the Queen v. Nathan Bachiu-Tait

Court File No.: CR-20-85 Date: 2021-09-20 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Nathan Bachiu-Tait

Counsel: Mark Miller, for the Crown R. Kodsy, for Mr. Bachiu-Tait

Heard: March 15, May 25 & 26, July 26 & 27, 2021

Reasons for Judgment

Kurz J.

Introduction

[1] The accused, Nathan Bachiu-Tait is charged with the following offences:

1. Possession of weapon for dangerous purpose, namely a hunting knife;
2. Possession for the Purpose of Trafficking – oxycodone;
3. Possession for the Purpose of Trafficking — methamphetamine;
4. Unauthorized possession of firearm (a sawed-off shotgun);
5. Possession of firearm, knowing its possession is unauthorized;
6. Contravention of firearm storage regulation;
7. Possession of firearm knowing serial number has been altered, defaced, or removed;
8. Careless use/ transport of firearm;
9. Unauthorized possession of a prohibited firearm in a motor vehicle;
10. Possession of prohibited firearm with readily available ammunition; and,
11. Driving while under suspension (x2).

[2] The charges arise from a traffic stop in the early hours of June 8, 2019, during which Officer Jordan Lee (“PC Lee”) stopped a vehicle driven by the Accused on the suspicion that he was driving while impaired. PC Lee determined that the Accused was not impaired but that he had been driving while under two separate licence suspensions. PC Lee gave the Accused a summons for driving while suspended. He also arranged to have the Accused’s car towed to an “contract lot” to remove it from the road where it had been stopped and was blocking half a traffic lane. A contract lot is not the same as an impound lot, where cars impounded by the police remain under police control.

[3] Before the tow look place, PC Lee decided to conduct an inventory search of the vehicle without the consent of the Accused or a search warrant. At the time of the search, the Accused was standing at the side of the road, having been escorted there by another police officer who had arrived at the scene, Officer Andre Giglia (“PC Giglia”).

[4] PC Lee explained that he chose to conduct the inventory search of the Accused’s vehicle under a Halton Police Services (“HRPS”) policy directive. There was no statutory or regulatory authority for the search. During his inventory search, PC Lee found a hunting knife in the driver’s side floorboard and a white residue of what he believed to be a controlled substance in the centre console. At PC Lee’s direction, PC Giglia placed the Accused under arrest for possession of a controlled substance. PC Lee then continued the search, this time ostensibly as a search incidental to arrest. His search encompassed the remainder of the interior of the vehicle and then its trunk. During this search, he turned up the remaining contraband and weapons that are the substance of the criminal charges cited above.

[5] After being arrested the Accused wished to speak to a particular lawyer who happened to be his uncle. PC Giglia was unable to connect him with that lawyer or any other member of the lawyer’s firms. The Accused was ultimately directed towards legal aid duty counsel.

[6] Counsel for the Accused argues that PC Lee and PC Giglia violated the Accused’s rights under ss. 8, 9, and 10(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“the Charter”), and that the evidence seized should be excluded pursuant to s. 24(2) of the Charter. If that were to happen, the Crown would effectively have no evidence to present to a jury.

[7] The Crown concedes minor Charter violations by the two officers but argues that the violations are made in good faith and are not sufficiently egregious to warrant the exclusion of the evidence seized. Crown counsel also undertakes not to place into evidence either of the two utterances made by the Accused following violations of his s. 10(b) rights. The Crown further argues that the allegations of serious Charter infringements made by the Accused are not made out. It argues that the s. 24(2) inquiry should conclude that the seized evidence will be admitted into evidence in light of society’s strong interest in adjudicating this case on its merits.

Issues

[8] This case raises the following issues:

1. Did PC Lee violate the Charter s. 8 rights of the Accused by conducting an inventory search of the contents of his vehicle and then a further search incidental to arrest?
2. Did the actions of PC Lee and/or PC Giglia violate the Charter s. 9 rights of the Accused not to be arbitrarily detained?
3. Did the actions of PC Lee and PC Giglia violate the Accused’s Charter s. 10(b) right to retain and instruct counsel without delay and to be informed of that right?
4. Under Charter s. 24(2), does society’s interest in the adjudication of the charges against the Accuse outweigh the seriousness of any Charter infringing conduct and the impact of that conduct on the Accused’s Charter protected interests?

Summary of Decision

[9] For the reasons that follow, I find that the PC Lee violated the s. 8 rights of the Accused with a warrantless inventory search of his vehicle and a subsequent warrantless search of the balance of the vehicle and its trunk. He violated the s. 10(b) rights of the Accused by questioning him about his failure to indicate that his licence had been suspended when he had been requested to produce it, although that violation was a minor one. PC Giglia violated the s. 10(b) rights of the Accused by questioning him immediately after reading him his Charter rights and caution, then being told by the Accused that he wished to speak to a particular lawyer. He further violated those rights by failing to effectively contact the counsel of the Accused’s choice when requested, and ultimately directing the Accused to duty counsel. I do not find that either officer breached the s. 9 rights of the Accused when PC Giglia escorted the Accused to the side of the road at the request of PC Lee, and then stood next to him during the inventory search. If I am wrong, the breach was a minor one.

[10] Looking at the infringing conduct as a whole, under the R. v. Grant s. 24(2) analysis, I find that the seriousness of the various breaches ranges from minor or technical to very serious. The breaches had a significant effect on the Charter protected interests of the Accused. The seriousness, weight and systemic nature of the numerous breaches of the Accused’s Charter rights lead me to exclude the evidence seized from the Accused’s vehicle.

Issue No 1: Did PC Lee violate the Charter s. 8 rights of the Accused by conducting an inventory search of the contents of his vehicle and then a further search incidental to arrest?

Law Regarding Charter s. 8

[11] Under s. 8 of the Charter, “[e]veryone has the right to be secure against unreasonable search and seizure.” Here, the issue is the warrantless search of the Accused’s vehicle, justified first as an inventory search incidental to the tow and then as a search incidental to arrest. Presumptively, a warrantless search is unreasonable unless it is 1) authorized by law, 2) the law itself is reasonable, and 3) the manner in which the search was carried out was reasonable: R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265.

[12] Here, as set out below, the police in this case had a common law right to tow the Accused’s vehicle. However, there was no law authorizing the search and thus that initial search of the vehicle was unreasonable. Had that search not occurred, the Accused would not have been arrested and the search of the vehicle’s trunk, which was justified as incidental to arrest, would not have occurred either. As detailed below, that search too was unreasonable.

Evidence of PC Lee

[13] The key evidence relevant to the s. 8 issue comes from Detective Constable Jordan Lee. He was employed by the Halton Regional Police Service (“HRPS”) as a police constable, assigned to an overnight shift for the 30th Division in Burlington between June 7 - 8, 2019. At about 2:00 a.m. on June 8, 2019, he was driving north in a marked cruiser on Brant Street in downtown Burlington when he passed the Wendel Clark’s Bar. There, he noticed a male enter the driver’s side of a black Nissan automobile (“the vehicle”) and a female enter its passenger side. When the vehicle started, PC Lee performed a U-turn and followed it southbound on Brant Street. When the vehicle turned onto westbound Lakeshore Blvd, PC Lee noticed it pick up speed. While the speed limit was 50 km./hr., he had to travel at 70 km./hr. to catch up to the vehicle. As he continued to follow it on Lakeshore Blvd., P.C. Lee noticed the vehicle swerve in its lane and touch the centre line.

[14] PC Lee decided to stop the vehicle to conduct a sobriety test of the driver. The driver of the vehicle responded to PC Lee’s emergency lights. He pulled over to the road’s shoulder, on a portion with a single lane, one meter wide. Only half of the Accused’s vehicle fit on that shoulder. The other half was on the road.

[15] When PC Lee searched the vehicle’s plates in his own cruiser’s mobile computer workstation, he found that the vehicle was owned by Enterprise Rent-A-Car.

[16] PC Lee got out of his cruiser, approached the vehicle’s driver’s side, and spoke to its driver, the Accused. PC Lee looked into the vehicle to ensure that there were no hazards to safety. He found it filthy and full of garbage. PC Lee explained the reason for the stop and requested the Accused’s licence and ownership. The Accused stated that he had left his driver’s licence at home but accurately provided his name and date of birth. He said that he had been picking up his girlfriend. P.C. Lee did not attempt to identify the female passenger as he lacked grounds to do so. The Accused was polite and respectful throughout this encounter. He did not demonstrate signs of impairment.

[17] When PC Lee entered the Accused’s name into his cruiser’s computer workstation, he learned two things. First, there were no Canadian Police Information Centre (“CPIC”) hits showing the Accused possessing any criminal record. Second, he learned of two ongoing suspensions of the Accused’s driver’s licence. One was for failure to pay a fine and the second was for driving while suspended.

[18] PC Lee returned to the vehicle and immediately asked the Accused why he had not told him that his licence was suspended. The Accused stated that he was aware of the suspension but did not say anything about it because he was nervous. PC Lee chose not to arrest the Accused. Rather, he decided to give him a summons for two separate HTA offences for driving with a suspended license. PC Lee then returned to his vehicle to write the summons.

[19] Before PC Lee could walk back to his cruiser to write up the summons, the vehicle’s passenger asked whether it was ok for her to walk home as she had to go to the bathroom. She said that she resided only ten houses away. As he had no grounds to detain or question her, PC Lee did not object to the passenger walking away. PC Lee then returned to his cruiser to write out the summons.

[20] Because of the Accused’s licence suspension and the fact that the vehicle was in a half lane of live traffic, PC Lee did not feel comfortable leaving the vehicle with the Accused after delivering the summons to him. Because of the early hour, PC Lee did not consider asking the Accused to bring in a friend or family member to remove the vehicle, and the Accused never made the request. Nor did anyone raise the idea, let alone request that the Accused’s girlfriend could drive the vehicle home. The issue is not raised. Further, PC Lee did not consider asking the Accused to call his own tow truck to remove the vehicle from the road. Rather, PC Lee felt that it was “smoother” to have the vehicle towed in accord with the HRPS policy, known as VIP (which is also described as TRF-004, and detailed below). He stated in cross-examination that he felt that he had no option but to have the vehicle towed under the HRPS policy. Nonetheless, he admitted to having an element of discretion respecting the tow.

[21] PC Lee believed that the vehicle was eligible to be impounded under the Highway Traffic Act (“HTA”) and the HRPS’s internal policy for towing vehicles. While there are HTA provisions that authorize the impounding of a motor vehicle in certain circumstances, for example an abandoned vehicle under s. 221, the Crown concedes that none of them apply in this case. But while arguing that there were other alternatives available to PC Lee, the Accused does not deny that there was a common law right to tow the vehicle in these circumstances (see: R. v. Cartwright, 2017 ONSC 6858 at para. 51, citing R. v Waugh, 2010 ONCA 100, at para. 30).

[22] PC Lee stated that he follows the HRPS policy on searching every car that is towed and assumes that the drafter of the policy knows what is proper. He understands that all police officers with the HRPS are trained to follow that policy. He would expect them to conduct an inventory search whenever they arrange to tow a vehicle. If there were any items of value, they could be seized and held by the police until claimed by their owner. He could foresee instances where an item could be seized that does not belong to the owner of the towed vehicle. He feels that his authority to do so would come from the policy. That is the case even though the policy says nothing about seizing any contents of towed vehicles.

[23] PC Lee stated that he understood that a towed vehicle would be brought to a secure spot, where its contents would be monitored. He did not ask the Accused whether he wished to remove any items from the vehicle before it is towed. He felt that the easiest way was to go about the inventory search in the manner that he conducted it. He did not consider any alternative options. He did not ask whether the Accused consented to the tow without a search, meaning that the contents would not be inventoried before the tow. He felt that it was impractical to record the Accused’s consent to such an arrangement, even though he could have confirmed the consent in writing in his notebook.

[24] As the Accused remained in the vehicle’s driver’s seat, PC Lee asked him to step out of the vehicle so that he could serve the summons. He advised the Accused that he would have the vehicle towed and that he would first conduct an inventory search to ensure that no items are missing. This was mostly, PC Lee stated, because of the risk of police liability for the loss of any items in the vehicle. At the time, he was not investigating the Accused for any crime or offence. He did not first ask for permission to conduct the search. Nor did he ask about the presence of any valuables in the vehicle. He did not believe that he had to request the consent of the Accused to search his vehicle.

[25] As PC Lee was writing out the summons, PC Giglia arrived on the scene. He did so at his own behest, to check on the scene, and not because PC Lee had requested assistance. PC Giglia remained on the scene for the purpose of ensuring officer safety. PC Lee asked PC Giglia to stand with the Accused, who had not walked away.

[26] PC Lee testified that when he told the Accused of his intention to search the vehicle, the Accused appeared to be nervous. He asked why PC Lee was searching the vehicle. But he never attempted to prevent the search. PC Lee offered an explanation and then commenced his search, with PC Giglia and the Accused standing together at the side of the road.

[27] This was the last direct contact that PC Lee had with the Accused. All relevant subsequent dealings with the Accused, including the reading of his rights and the caution, the attempts to contact counsel and the Accused’s transport to the police station occurred under the direction of PC Giglia.

[28] PC Lee began his inventory search at the vehicle’s driver’s-side door. He found that the vehicle was cluttered with garbage, including food containers, and clothing. He looked inside and saw a black hunting knife on the driver’s side floorboard. He then saw a clear pipe with a residue, along with other items, at the vehicle’s centre console. At this point, he asked PC Giglia to arrest the Accused for possession of a controlled substance, and then continued his search. Until this point, the Accused was not under arrest and had not been handcuffed. He was standing at the side of the road with PC Giglia. At some point afterwards, PC Lee looked briefly looked over in the Accused’s direction and saw him handcuffed.

[29] With the discovery of the pipe and residue, PC Lee testified that the search became a Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”) search, incidental to arrest. PC Lee then opened the glove box, which was within reach of the driver’s seat. In the glove box, he observed two bags with crystal-like substances. One bag was larger and clear, while the second one was tinted and smaller. PC Lee seized the bags and continued his search in the glove box, where he found a blue weigh scale. At this point, he advised PC Giglia of the drugs he had located and the new grounds for charging the Accused with possession for the purpose of trafficking.

[30] PC Lee then continued his search of the vehicle, finding a bag in the glove box, containing 30-40 pills, stamped with the letters “TEC”. He believed those to be Oxycodone. He then located an unspent and ready to use red 12-gauge shotgun shell in the driver’s side panel. He continued searching the vehicle through the backseat clutter and garbage but found nothing there. He then moved on to search the trunk.

[31] PC Lee did not decide to request a search warrant before moving on to the vehicle’s trunk. As he explained, he felt that it would have taken hours of obtain a search warrant while the vehicle would have remained sitting on the side of the road. He felt that the wait made no sense with the discovery of the drugs in the vehicle. Further, he felt that he had the authority to search the trunk once he found the large number of TEC stamped pills in the body of the vehicle. He felt that his authority was more expansive that it had been with the vehicle’s interior. Moreover, part of the vehicle was sitting in traffic, posing a potential threat. PC Lees knows from his training that he lacks the unfettered authority to search a vehicle’s trunk. Nonetheless, he chose to search the trunk on his own without assistance from any other officer because he believed that it may contain a firearm or more evidence of drugs. He knew that he could have sealed the vehicle for a later search, after obtaining a search warrant.

[32] When PC Lee opened the vehicle’s trunk, he saw that it was filled with miscellaneous items of men’s clothing and a golf bag. When he removed the golf bag from the trunk and placed it on the ground, he noticed that it contained what appeared to be the end of a gun barrel, sticking out of the slots. Upon further investigation, he observed that it was a sawed-off shotgun. He could tell from his knowledge of shotguns that it had been altered by sawing off the stock to make it smaller. He also noted that its serial number had been scratched off. The shotgun was not loaded. There was nothing else in the golf bag.

[33] Continuing his trunk search, PC Lee located a green ammunitions box containing several loaded shotgun shells. They were the same 12-gauge size as the shell he had found in the driver’s panel. He also spotted other smaller shotgun shells but is not sure of their caliber. While he did not count the number of shells in the box, it was ¾ full.

[34] PC Lee then found a camera bag containing a package similar to the one with the drugs. He also found a “selfie” photo of the Accused. He further located a small blue book containing different names and phone numbers. From his experience, PC Lee felt that this book contained a drug-debt list.

[35] During his search of the vehicle’s back seat and trunk, PC Lee was assisted at one point by PC Giglia and then by another officer, PC Mark Subaris. That officer did not seize any items; however, he did take possession of the shotgun. The drugs were handed over to yet another officer, Det. Cont. Steinmar, who was asked to assist in the investigation. PC Lee took possession of the remainder of the sized items cited above. The vehicle was ultimately towed away at about 5:30 a.m.

Evidence of PC Giglia

[36] PC Andre Giglia (“PC Giglia”) is a police constable who has been employed by the HRPS since August 2018. On the night of the arrest of the Accused he was assigned to a marked police cruiser. He observed PC Lee conducting a roadside stop at around 3:00 a.m. on June 8, 2019. After observing from a distance, he decided to attend for the purpose of officer safety.

[37] When he arrived at the scene at 629 Northshore Blvd. Burlington, PC Giglia spoke to PC Lee. The Accused was still behind the wheel of the vehicle and there was no passenger present. PC Lee stated that the driver of the vehicle was being charged with driving under suspension and that his vehicle would be towed. The vehicle was taking up a portion of the roadway. PC Lee stated that he was going to provide the Accused with a summons and then impound his vehicle.

[38] After the Accused stepped out of the vehicle, PC Giglia escorted him to the sidewalk as PC Lee conducted an inventory search. The driver was not under arrest or detained at the time. The Accused followed the directions of PC Lee and was cooperative with stepping out of the vehicle and accepting service of the summons.

[39] The Accused was “fidgety” and nervous as PC Lee was going through the vehicle. PC Giglia stated that he noticed a machete and two large, clear plastic bags one with pills and another with crystals, as well as a notebook that PC Lee had retrieved. The two bags were placed on top of the vehicle. The quantities of pills and crystals were larger than those for recreational use.

[40] PC Giglia recalls little about the items seized by PC Lee and was not involved in their seizure. After arresting the Accused, placing him in the cruiser, and reading him his rights to counsel and the caution, PC Giglia assisted in the search of the vehicle’s trunk.

HRPA Towing Directive

[41] The purported authority for the vehicle search conducted by PC Lee is found in a Halton Regional Police Service Directive, Policy TRF-004, entitled “Towing of Seized or Disabled Vehicles” (“TRF-004” or “the Directive”). A copy of TRF-004 is included in the defendant’s motion materials. TRF-004 refers to “VIP” policy but does not define the term “VIP” for the purposes of towing vehicles. However, it does refer to the term as a ground for towing.

[42] Under TRF-004, HRPA tows can be classified in three ways: “owner’s request” (which is self-evident), “rotational tow”[^1] and a “secure police tow”. Secure police tows are defined as ones that meet the following conditions:

(a) a police officer acting under appropriate authority is seizing the vehicle; or

(b) an officer acting under appropriate authority is taking control of and directing or ordering the removal of the vehicle because the owner and/or agent is unavailable, unable or unwilling to give instructions to remove the vehicle.

[43] The procedure for towing a seized vehicle as a secure police tow, including the search of the vehicle (para. A(3)(d)), is set out in TRF-004 as follows:

A Procedure for Police Tow of Vehicles

1. When an officer seizes a vehicle, it shall be towed by a designated secure police towing company.

2. Vehicles will only be seized with appropriate authority and for the following reasons:

(a) to conduct further investigation and/or to secure and preserve evidence;

(b) to prevent continuation of an offence;

(c) to remove a traffic hazard;

(d) in response to complaints related to by-law infractions;

(e) with lawful authority (See Appendix A).

3. For all secure police tows, the investigating officer will:

(a) ensure that there is a lawful authority to seize the vehicle;

(b) be satisfied that it is necessary to impound the vehicle;

(c) establish whether or not a search warrant is required in connection with the investigation and seizure (ref. INV-024 Search of Premises and Vehicles);

(d) examine the contents of the vehicle and where appropriate, inventory or take possession of valuable property for safe keeping and/or to guard against civil liability (ref. CPO-012 Collection, Preservation and Control of Evidence and Property);

(e) have the seized vehicle towed to the police tow company’s compound or other secure destination for investigative purposes (ref. TRF-002 Vehicle Mechanical Inspections);

[Emphasis added]

[44] Appendix A to the Directive, cited above, sets out a “quick reference chart” for “Administrative Suspensions & Impoundments under the HTA”. The only relevant entry that applies to this case is as follows:

HTA VIP HTA S. 55.2

Drivers suspended under the HTA (excludes defaulted fines and medical suspensions):

□ 7-day Vehicle Impoundment

Impoundment is not reported to MTO

Analysis of s. 8 Issue

[45] The Accused does not strongly question the right of the HRPS to have towed his vehicle in the circumstances. While he argued that the officer had other alternatives available to him, he conceded that there was a common law right to tow the vehicle. Like the automobile whose search was the subject of a warrantless search in R. v. Cartwright, above, at para. 51, the vehicle: “was parked in a live lane of traffic and posed a public safety risk.” See also R. v. Waugh, 2010 ONCA 100, at para. 30.

[46] In addition, under HTA s. 55.2(1):

55.2 (1) Where a police officer is satisfied that a person was driving a motor vehicle on a highway while his or her driver’s licence is under suspension (other than under section 32, 41, 42, 43, 46 or 47 or for a reason prescribed under clause 55.1 (38) (f.1)), the officer shall detain the motor vehicle that was being driven by the person and the vehicle shall, at the cost and risk of its owner,

(a) be removed to an impound facility as directed by a police officer; and

(b) be impounded for seven days from the time it was detained.

[47] This provision was not originally cited by the Crown as a justification for either the tow or the subsequent inventory search of the vehicle. In its factum, the Crown relied instead on the statutory authority of HTA s. 221(1). That provision authorizes a police officer who discovers an apparently abandoned vehicle to “take the vehicle into the custody of the law and may cause it to be taken to and stored in a suitable place”. The Crown later withdrew its s. 221(1) justification for the inventory search, conceding that the Accused’s vehicle had not been abandoned.

[48] But in his final argument on the Charter motion, Crown counsel briefly alluded to HTA s. 55.2, although conceding that it is discretionary. But he stated that the search of the vehicle, as opposed to the tow, was pursuant to a policy directive, TRF-004, that PC Lee could not ignore as a HRPS officer.

[49] The Accused rejects any argument that TRF-004 represents the legal authority, absent a search warrant, to conduct an inventory search of the vehicle. He states that the HRPS policy directive does not have the force of law. The Accused also argues that those cases cited below, which allowed an inventory search of a vehicle absent a search warrant, did so on the basis of HTA s. 212(1) and its requirement of taking an apparently abandoned vehicle into the “custody of the law” and the consequent responsibility for its contents ; provisions that are absent under HTA s. 55.2. I agree.

[50] In R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51, at para. 12, the Supreme Court of Canada was clear that an inventory search of a motor vehicle must be pursuant to “some lawful authority”, that is, either “a specific statute or a common law rule that authorizes the search”. Absent that, “the search cannot be said to be authorized by law".

[51] As Lamer C.J. wrote for the majority in Caslake at para. 30:

Suffice to say that an inventory search per se does not serve a "valid objective in pursuit of the ends of criminal justice" (Cloutier, supra, at p. 186) in the context of an arrest such that it can be justifiably carried out under this warrantless common-law power. Its purposes relate to concerns extraneous to the criminal law. If the police feel the need to inventory a car in their possession for their own purposes, that is one thing. However, if they wish to tender the fruits of that inventory search into evidence at a criminal trial, the search must be conducted under some lawful authority.

[Emphasis added]

[52] In Caskale, the ostensible authority for the search was simply an RCMP policy requiring an inventory search of every vehicle that was to be impounded. The majority of the Supreme Court found at para. 26 that this was neither authorized by a law nor “within the bounds of the legitimate purposes of [the common law power of] search incident to arrest.”.

[53] Similarly, in R. v. Nolet, 2010 SCC 24, [2010] 1 SCR 851, an inventory search was conducted of the cab of a tractor-trailer the day after it was impounded, and its driver and passenger arrested. This followed a random stop and search that revealed a great deal of money and drugs. The second-day search was performed under an RCMP policy and not under any statute or common law power. The Supreme Court stated that courts must proceed step-by-step through the interactions between police and the accused in order to determine whether, in light of the information available at the time, the police had acted within their authority at the time of the search. The original searches of the cab on the day of the arrest of the accused were seen as reasonable as the officer suspected a violation of the Saskatchewan Highway Traffic Act. However, the subsequent inventory search the following day, solely under RCMP administrative procedures was found to be unreasonable.

[54] In R. v. Nicolosi (1998), 1998 2006 (ON CA), 127 C.C.C. (3d) 176 (Ont. C.A.), the police stopped a driver because of his reckless driving. A CPIC check revealed that he had been driving without insurance. The accused was arrested, and his vehicle was impounded under HTA s. 221(1). A subsequent inventory search produced a gun. The Ontario Court of Appeal found that the search had been conducted according to statute as s. 221(1) of the HTA allowed the police to take the accused vehicle “into the custody of the law” and to store it “in a suitable place.” Incidental to that statutory authority is the responsibility to keep the impounded vehicle safe. With that responsibility comes the ability to take reasonable steps to carry out that end. An inventory search was found to be “entirely in keeping with [that] responsibility”: para. 30. Thus, the court distinguished Caslake because of the finding of a statutory authority for the search under HTA s. 221(1).

[55] In R. v. Wint, 2009 ONCA 52, 93 O.R. (3d) 514, leave to appeal to S.C.C. refused [2009] S.C.C.A. No. 164, an inventory search of a vehicle that had been impounded for stunt driving under the HTA, was found to be reasonable. The court relied in part on the authority of Nicolosi regarding the propriety of such inventory searches of a properly impounded vehicle.

[56] In R. v. Ellis, 2016 ONCA 598, the Court of Appeal for Ontario distinguished Nolet and relied upon Nicolosi and Wint to justify an inventory search of an apparently abandoned vehicle under HTA s. 221(1). The Court wrote at para. 56: “an inventory search is authorized by law where, as here and in Nicolosi and Wint, statutory authority for the search that has been invoked. The law has been consistent that an inventory search of a vehicle will not be authorized by law and will therefore be unconstitutional where there is no statutory authority invoked for the search.”

[57] In R. v. Harflett, 2016 ONCA 248, 336 C.C.C. (3d) 102, the Court of Appeal for Ontario stated at para. 20 that:

The power to detain an individual under the HTA does not inevitably include the power to detain or impound a vehicle, nor does it include the power to conduct an inventory search in every situation. The officer must be able to point to a specific duty or authority to justify his search of the appellant's vehicle.

[58] In Harflett, the court adopted the following statement of Corbett J. in R. v. Martin, 2012 ONSC 2298, at para. 36:

"Seizure" of a vehicle is not the same thing as towing a vehicle for a parking infraction. If, after police had concluded their business with Mr. Martin, the vehicle had been left in the fire lane, police would have been justified in ticketing and towing the vehicle. But in this situation they would have had no greater right to search the vehicle than they would have had if they were removing the vehicle from an expired parking meter, or as a result of some other parking infraction. Illegal parking is not "abandonment" of a vehicle within the meaning of s. 221(1) of the Highway Traffic Act. Towing a vehicle for a parking infraction is not a "seizure" of the vehicle by the police, and does not justify an “inventory search” of the inside of the vehicle.

[59] That comment is apposite here because the vehicle was seized to remove it from the road by towing it away to a tow yard where it could be picked up seven days later by an authorized driver.

[60] The Court of Appeal in Harflett excluded the evidence obtained by an inventory search conducted after the accused was arrested for driving with a suspended licence (due to unpaid fines). The accused’s vehicle was to be towed to a local hotel, where the accused would be able to pay his fines and have his vehicle released. The officer stated that he “searches ‘every vehicle’ for which he calls a tow truck”: Harflett, at para. 20. The court found that the officer was justified in having the vehicle towed for public safety but that he had no reasonable basis for the inventory search, which was not authorized by statute or common law. Thus, the search breached the accused’s s. 8 Charter rights.

[61] In Cartwright, the police officer conducted an inventory search of a car that he had arranged to be towed from an apartment parking lot. As in this case, the officer did so after determining that the driver’s licence to drive had been suspended. The driver and passenger were also arrested on unrelated charges.

[62] The Crown in Cartwright relied on the authority of HTA s. 170(15), which deals with improperly parked vehicles. In a provision somewhat similar to s. 55(2), s. 170(15) authorizes various law enforcement officials to “cause [the improperly parked vehicle] to be moved or taken to and placed or stored in a suitable place”.

[63] While McArthur J. found the tow to be proper under the common law, she found that the inventory search was unreasonable. She wrote at para. 50:

Whether the authority of Officer McVey to tow the car arose from [HTA] s. 170(15) or from the common law, he had the car towed for a parking infraction; it was parked in a live lane of traffic. This is precisely the type of situation contemplated in Harflett. Officer McVey had no statutory authority to take custody of the car, nor was that power necessarily incidental to the officer's common law power. In light of that, Officer McVey violated the defendant's s. 8 rights by conducting an unlawful inventory search of his car.

[64] The Crown argued that HTA s. 170(15) was so similar to s. 221(1) that the reasoning in Nicolosi, Wint and Ellis must apply to the case before her. McArthur J. rejected that argument. She wrote:

54 I cannot accept this submission for two reasons. First, s. 221(1) of the HTA empowers an officer to take a vehicle "into the custody of the law" if it is discovered abandoned on or near a highway. There is no similar authority in s. 170(15) for the police to take a car into the custody of the law. In R. v. Nicolosi, supra, those words in s. 221(1) were a significant factor in the conclusion that the section authorized an inventory search.

55 Second, in my view this submission is not in accord with the reasoning set out above in Harflett (or the passage in Martin cited with approval by the court in Harflett). Whether the authority of Officer McVey to tow the car arose from s. 170(15) or from the common law, he had the car towed for a parking infraction; it was parked in a live lane of traffic. This is precisely the type of situation contemplated in Harflett. Officer McVey had no statutory authority to take custody of the car, nor was that power necessarily incidental to the officer's common law power. In light of that, Officer McVey violated the defendant's s. 8 rights by conducting an unlawful inventory search of his car.

Analysis of s. 8 Arguments

[65] Simply put, there was no legal justification for PC Lee’s inventory search of the vehicle, whether under statute or common law. Relying on Nicolosi, Wint and Ellis, the Crown originally asserted that the search was justified by HTA s. 221(1). During the course of argument, it conceded that its argument was not accurate. That concession was correct. Based on the reasoning found in Nicolosi, Wint and Ellis, the HTA does not allow for the search of every vehicle that is seized unless it is placed “into the custody of the law”. That term is only used in two sections of the HTA: s. 220 (where an order is made for the impoundment and taking into custody of a motor vehicle) and s. 221. Neither provision applies to the circumstances of this case.

[66] The difference in wording between HTA, s. 221(1) and a. 55.2 is crucial. As the Court of Appeal pointed out in Nicolosi, the term “custody of the law” is central to the duty of the police under s. 221(1). It denotes a statutory responsibility to keep a vehicle’s contents safe. As Doherty J.A. wrote for the court:

29 Custody is defined in the Shorter Oxford Dictionary as "safekeeping, protection, charge, care, guardianship." Taking a vehicle into "the custody of the law" entails more than simply assuming possession and control of the vehicle. It involves the preservation and safekeeping of the vehicle while in the care and control of the police. Nor do I draw any distinction between the vehicle and its contents when the vehicle is impounded. Both are equally in the "custody of the law."

30 With the responsibility to keep the impounded property safe, must come the ability to take reasonable steps to achieve that end. Entering the vehicle for the purpose of itemizing visible property of apparent value is entirely in keeping with the responsibility to safeguard the vehicle and its contents while they are in the custody of the law. Given Constable Bishop's purpose in entering the vehicle, his conduct falls squarely within his authority to take the vehicle into the custody of the law.

[Emphasis added.]

[67] That is not the case when a motor vehicle is simply towed at the behest of the police, whether to a hotel parking lot, as in Harflett, or to a tow yard, as PC Lee intended to do here. The crucial difference is that the responsibility imposed on the police under s. 221(1), is not present under s. 55.2. Under the latter provision, the risk engendered by the tow and impoundment is expressly and solely placed on the hands of the owner, not the police. That risk is not imposed on the motor vehicle’s owner under s. 221(1). Thus, the justification for the contents search under s. 221(1), the risk of police liability, is absent for a tow and impoundment under s. 55.2.

[68] In other words, in the absence of the risk, there is no justification under law for the inventory search prior to the tow. I see nothing in the case law that expands the police power to conduct an inventory search beyond the scope allowed in Nicolosi and the cases that rely upon it.

[69] TRF-004 does not have the force of law. It is simply an internal policy document of the HRPS. Further, to the extent that it speaks of a police officer’s obligation to “examine the contents of the vehicle and where appropriate, inventory or take possession of valuable property for safe keeping and/or to guard against civil liability”, that obligation only arises when an officer is “acting under appropriate authority”. To then look to TRF-004 as the appropriate authority for the search is to engage in circular reasoning.

[70] It is concerning is that an active HRPS officer was not aware of the limits of his right to conduct an inventory search incidental to a tow. Such searches were, at least at the time of the search of the vehicle here, his normal practice for every tow which he required. It is a practice that had not been corrected by the time of the warrantless inventory search of the Accused’s vehicle.

[71] Regarding the search of the vehicle’s trunk, ostensibly incidental to arrest, that too was a warrantless search. Hence it is presumptively unreasonable. Further, the rationale of the search of the trunk is that it was conducted pursuant to a valid arrest. But if PC Lee had not conducted the unreasonable inventory search, he would have had no grounds to arrest the Accused. The power to search incidental to arrest is contingent on, among other factors, a lawful arrest: R. v. Stillman, 1997 384 (SCC), [1997] 1 S.C.R. 607 at para. 27; R. v. Caslake, above, at para. 19.

[72] The police cannot rely on unconstitutionally obtained evidence to furnish the grounds to search (or arrest): R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54-58; R. v. Grant, above, at p. 251; R. v. Plant, 1993 70 (SCC), [1993] 3 S.C.R. 281 at p. 291; R. v. Evans, 1996 248 (SCC), [1996] 1 S.C.R. 8 at 23-24. Therefore, the arrest was also unlawful because absent the unreasonable and thus unconstitutional inventory search, PC Giglia had no grounds to arrest the Accused.

[73] Given that the arrest was unlawful, the search of the vehicle following that arrest was also unlawful, necessarily unreasonable, and violated the accused's 8 Charter right to be secure against unreasonable search or seizure.

[74] Accordingly, I find that both aspects of the search of the Accused’s vehicle, the inventory search and the trunk search, violated his right to be free from unreasonable search and seizure under s. 8 of the Charter.

Issue No. 2: Did the actions of PC Lee and/or PC Giglia violate the s. 9 rights of the Accused not to be arbitrarily detained?

[75] Section 9 of the Charter states that "[e]veryone has the right not to be arbitrarily detained or imprisoned." The purpose of this provision, “broadly put, is to protect individual liberty from unjustified state interference”: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 20. The court continued to explain that section 9:

guards not only against unjustified state intrusions upon physical liberty, but also against incursions on mental liberty by prohibiting the coercive pressures of detention and imprisonment from being applied to people without adequate justification. The detainee's interest in being able to make an informed choice whether to walk away or speak to the police is unaffected by the manner in which the detention is brought about.

[76] The detention may be psychological as well as physical. In Grant, the Supreme Court set out that detention for s. 9 purposes could be broadly understood. As the majority in Grant found at para. 25, citing R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613, at p. 644:

detention for Charter purposes occurs when a state agent, by way of physical or psychological restraint, takes away an individual's choice simply to walk away. This encompasses not only explicit interference with the subject's liberty by way of physical interference or express command, but any form of “compulsory restraint”.

[77] As the court stated at para. 25 of Grant: “[a] person is detained where he or she ‘submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist’". For there to be a detention, there must be:

1. A “reasonable suspicion that the particular individual is implicated in the criminal activity under investigation”;

2. As well as an examination of:

i. the extent to which the interference with individual liberty is necessary to perform the officer's duty,

ii. the liberty interfered with, and

iii. the nature and extent of that interference.

(R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 34),

[78] At para. 44(1) of Grant, the court summarized its definition of the term, psychological detention, as follows: “[p]sychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.”

[79] In R. v. Le, 2019 SCC 34, [2019] S.C.J. No. 34 at paras. 25-27, the Supreme Court of Canada expanded upon its comments in Grant regarding the breadth of the definition of detention. The majority stated that “even absent physical restraint by the state, a detention exists in situations where a reasonable person in the accused's shoes would feel obligated to comply with a police direction or demand and that they are not free to leave.” That is because most citizens, unaware of the precise limits of police authority would “perceive even a routine interaction with the police as demanding a sense of obligation to comply with every request”.

[80] However, not every police-citizen interaction is a detention within the meaning of s. 9 of the Charter. As the majority wrote at para. 27 of Le, citing various authorities:

detention requires ”significant physical or psychological restraint” (R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 19; Grant, at para. 26; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 3). Even where a person under investigation for criminal activity is questioned, that person is not necessarily detained (R. v. MacMillan, 2013 ONCA 109, 114 O.R. (3d) 506, at para. 36; Suberu, at para. 23; Mann, at para. 19). While "[m]any [police-citizen encounters] are relatively innocuous, ... involving nothing more than passing conversation[,] [s]uch exchanges [may] become more invasive ... when consent and conversation are replaced by coercion and interrogation" (Penney et al., at pp. 84-85). In determining when this line is crossed (i.e. the point of detention, for the purposes of ss. 9 and10 of the Charter), it is essential to consider all of the circumstances of the police encounter. Section9 requires an assessment of the encounter as a whole and not a frame-by-frame dissection as the encounter unfolds.

[81] Here, the Accused does not deny the reasonableness of the original detention when he was pulled over on suspicion of impaired driving. But he contends that when PC Lee completed his impaired driving investigation and then issued the summons for driving while under suspension, the detention should have ended. Instead, he says, PC Lee asked PC Giglia to stand with the Accused, while the former searched vehicle. The Accused asserts that at that time, he was arbitrarily detained because PC’s Lee and Giglia no longer had grounds to detain him. Yet they did not tell him that he was free to go.

[82] The evidence of PC Lee was that the Accused may have felt that he could not walk away from the scene. However, PC Lee thought that the Accused was staying to see what happened to his vehicle. The Accused never made a gesture indicating the desire to leave. He never asked whether he was free to go. It was clear that he was not abandoning his vehicle. It is the Crown’s position that the Accused was free to go at the time that the inventory search commenced, had he wished to do so.

[83] PC Giglia testified that he escorted the Accused to the sidewalk after he left his vehicle and while PC Lee conducted an inventory search. He felt that the Accused was neither under arrest nor detained at the time. While PC Giglia’s contemporaneous notes state that he asked the Accused to step out of the vehicle and escorted him across the street, he insisted that he did not direct the Accused to walk to the side of the road and told him to stand there. In his mind, the Accused was free to go. However, he never told him that he could leave, nor did the Accused ask whether he could leave. The Accused looked uneasy at the side of the road but never said that he was unhappy or uncomfortable. As the Accused stood at the side of the road, he was texting and trying to call someone. PC Giglia did not interfere or try to take the phone away.

[84] The Crown states in its memorandum of argument that:

[a]ny investigative detention that occurred was very brief, was an appropriate investigative detention, within the meaning of Mann [citation omitted], and done only in order to ensure the safety of the public, the officer, and the applicant, and to comply with police policy on impound and inventory search. […] The moment officers located a suspected controlled substance, the applicant was appropriately arrested, read his right to counsel, cautioned, and the vehicle search continued as a search incident to arrest.

[85] It is common ground that the original investigative detention, arising from the suspicion of impaired driving, was proper. Following the issuance of the summons, all that could be construed as a detention was PC Giglia walking with and standing with the Accused at the side of the road while the inventory search took place. He did not restrict the movements of the Accused. Nothing in the behaviour of the Accused, including his use of the phone without restriction indicated that PC Giglia was attempting to detain him or that the Accused felt psychologically detained.

[86] The twin facts, that he was not told that he was free to go and that he did not ask to go, make sense in light of the inventory search taking place. It is not reasonable to expect that someone would just walk away while the police were searching their vehicle, whether or not it contained contraband. While the search was unreasonable, that does not mean that the Accused’s decision to witness that search in the presence of an officer who had not arrested him and in the absence of any further indication of detention, amounted to a breach of his s. 9 rights. Accordingly, I find that his s. 9 rights were not breached by PC Lee and PC Giglia. If I am wrong in that regard, the breach is a minor and technical one for the purposes of Charter s. 24(2).

Issue No. 3: Did the actions of PC Lee and PC Giglia violate the Accused’s s. 10(b) right to retain and instruct counsel without delay and to be informed of that right?

[87] Section 10(b) of the Charter provides that upon arrest or detention, everyone has the right "to retain and instruct counsel without delay and to be informed of that right". On its plain reading, s. 10(b) provides for two separate rights: 1) to retain and instruct counsel without delay and 2) to be informed of that right, also without delay.

[88] On the other side of the coin, those s. 10(b) rights place the three following “informational” and “implementation” duties on the police. Upon the arrest or detention of an accused, they must without delay:

(1) 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;

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

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

(R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173, at pg. 191, R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para 38.)

[89] The term, without delay, refers to the police obligation to meet their duties to the accused immediately upon arrest or detention, subject to legitimate concerns for officer or public safety: Suberu, at paras. 41-42; R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 42.

[90] Once an accused invokes their s. 10(b) right to counsel, police have a duty to "'hold off' from attempting to elicit incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel": R. v. Prosper, 1994 65 (SCC), [1994] 3 S.C.R. 236, at p. 269; R. v. G.T.D., 2018 SCC 7, [2018] 1 S.C.R. 220, at para. 2. Even asking a detainee if they wish to say anything in response to the charge(s) as part of the standard caution, following the detainee’s invocation of their right to counsel, is a violation of their s. 10(b) rights.

[91] The collection of rights guaranteed by s. 10(b) includes the right to consult with counsel of choice. That includes the detainee’s right to choose the lawyer with whom to consult. If a detainee has asked to speak with counsel, the police have certain obligations to facilitate the detainee's ability to choose a lawyer and to contact the lawyer they have chosen: R. v Manuel, 2018 ONCJ 381, at para. 16, citing: R. v. Bartle; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 35; R. v. Maciel, 2016 ONCJ 563 at para. 37; and R. v. Vernon, 2016 ONCA 211.

[92] In R. v. Jhite, 2021 ONSC 3036, Stribopoulos J. reviewed the law regarding the circumstances where the accused can be said to have forgone the right to counsel of their choice in favour of duty counsel. He considered Willier and its companion decision, R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402, in some detail, along with a number of subsequent lower court decisions. He concluded:

42 Willier establishes that, after a detainee asserts their right to consult a specific lawyer, even before police afford them a reasonable opportunity to do so, the detainee may choose to forego counsel of choice in favour of exercising their right to counsel by speaking with duty counsel. Although the police are free to offer the detainee the option of contacting duty counsel, they are not permitted to "interfere with [the detainee's] right to a reasonable opportunity to contact counsel of choice": at para. 43.

43 Consequently, the police cannot mislead the detainee by suggesting that they do not have the option of waiting for their preferred lawyer or that their only option is speaking with duty counsel: Willier, at para. 43. Further, the police must refrain from pressuring the detainee to forego consulting their lawyer of choice in favour of speaking instead with duty counsel: at para. 43. In other words, the decision to forego the detainee's preferred counsel for duty counsel must result from the detainee's choice. The decisions of Ontario courts both before and after Willier are consistent with the approach it endorsed.

44 For example, the Court of Appeal has rejected claims that police violated s. 10(b) where detainees, after asserting their right to speak to a specific lawyer, chose to instead speak with duty counsel: see R. v. Eakin (2000), 2000 2052 (ON CA), 74 C.R.R. (2d) 307 (Ont. C.A.), at para. 8; R. v. Littleford (2000), 2001 8559 (ON CA), 15 M.V.R. (4th) 191 (Ont. C.A.), at paras. 7-8.

45 In contrast, courts have invariably found violations of s. 10(b) where detainees asserted their right to counsel of choice but then instead spoke with duty counsel because police steered them in that direction and effectively left them with the erroneous impression that they had no other option: see R. v. Singh, 2020 ONSC 1342, at para. 17; R. v. Lewis, 2019 ONSC 5919, 451 C.R.R. (2d) 190, at paras. 44-45; R. v. Vernon, 2015 ONSC 3943, 88 M.V.R. (6th) 84, at paras. 32-33, leave to appeal refused 2016 ONCA 211; R. v. Michael, 2017 ONSC 4579, 17 M.V.R. (7th) 308, at paras. 24-25; R. v. Zaidi (2007), 2007 44833 (ON SC), 164 C.R.R. (2d) 271 (Ont. S.C.), at para. 77; R. v. Kumarasamy (2002), 22 M.V.R. (4th) 234 (Ont. S.C.), at para. 29.

46 The leading case remains Kumarasamy. In that decision, Durno J. held that police cannot "go directly to duty counsel when a detainee wants to contact his or her counsel of choice" cautioning that duty counsel "cannot be used to trump a detainee's right to counsel of choice": at para. 21. Although Kumarasamy pre-dates Willier, it is entirely consistent with it. In short, the police cannot foist duty counsel on a detainee who wants to speak with their lawyer of choice. If it were otherwise, the right to counsel of choice would be little more than a "right" in theory but not in practice.

[93] In a nutshell, there is no Charter breach in itself when police offer an accused the opportunity to speak to duty counsel. However, before doing so, the police must first make reasonable efforts to contact counsel of the accused’s choice and those efforts must prove unsuccessful.

[94] Here, the Accused claims that PC Lee violated his s. 10(b) rights by asking why he did not inform the officer of his suspension and failing to read him his rights, despite his detention. The Accused adds that PC Giglia violated his s. 10(b) rights by:

1. Failing to inform him of his rights without delay;
2. Proceeding to question him immediately after first reading him his rights and the caution; and,
3. Failing to offer him a meaningful opportunity to consult with counsel of his choice following his arrest, and “channeling” him instead to duty counsel.

[95] The Crown responds that PC Giglia read the caution and right to counsel almost immediately after the first arrest. Further, PC Giglia attempted, without success, to locate and contact the Accused’s lawyer of choice using his onboard workstation computer. The Crown does not deny that PC Giglia questioned the Accused immediately after cautioning him, but he did so premised on an incorrect understanding of the law, not in bad faith. It acknowledges that the Accused was not able to speak to Mr. Robbins on the night of his arrest but asserts that this inability did not arise from PC Giglia’s want of effort.

Evidence of PC Lee

[96] As set out above, the Accused failed to produce his driver’s licence when pulled over by PC Lee. However, he gave his real name which PC Lee searched on his onboard computer workstation. There, he discovered that the Accused’s license was suspended at the time. When PC Lee returned to the vehicle, he immediately asked the Accused why he had not told him that his licence was suspended. He did so without having read the Accused his rights and the caution. PC Lee felt entitled to do this because it was an HTA investigation only. He testified that this is what he was taught. He would expect his colleagues to act in the same manner. The Accused offered an incriminating answer, stating that he was aware of the suspension but did not say anything about it because he was nervous.

Evidence of PC Giglia

[97] While standing at the side of the road with the Accused, PC Giglia spoke briefly with him. The Accused truthfully told PC Giglia that his name was “Nathan”. At some point, PC Lee told PC Giglia that there were grounds to arrest the Accused for possession of a controlled substance. PC Giglia arrested him for that offence and handcuffed him. The Accused was not combative when told of the arrest or when he was handcuffed.

[98] PC Giglia did not immediately read the Accused his rights and caution. PC Giglia explained that part of the delay in reading rights and the caution was the time it took to search the Accused and walk him to the cruiser. He estimated that this took 2-4 minutes, but the gap in his notes shows that the period was closer to 11 minutes. He denied that part of the reason for the delay was his help in searching the vehicle. He read the Accused his right counsel and the caution between 3:28 – 3:31 a.m.

[99] The Accused said that he understood his rights and had no lawyer, but that his uncle is a lawyer. PC Giglia asked whether he wanted his uncle to be his lawyer or whether he wanted to call duty counsel. The Accused responded that he would like to call his uncle, whom he identified as Anthony Robbins, a Toronto lawyer. Mr. Robbins is an associate of the Accused’s present counsel, Mr. Kodsy.

[100] Then, even though the Accused had clearly stated that he wished to speak to Mr. Robbins, PC Giglia immediately proceeded to question him. PC Giglia originally stated that the only question he asked of the Accused was whether the car belonged to the Accused. However, when confronted in cross-examination, after having his memory refreshed by his notes, he conceded that he asked the Accused whether he had anything to say about the large quantity of drugs and the knife. The Accused denied any knowledge and said that the car belonged to a buddy. PC Giglia admitted that he now understands that any accused should be able to speak to counsel of their own choice before being questioned by police.

[101] During his cross-examination, PC Giglia explained his error in questioning the Accused just after he had stated his wish to speak to counsel. PC Giglia asserted that he had been taught that he could continue to ask questions even after an accused stated that they wished to speak to counsel. He felt that this is normal practice. It was a practice that he learned at the Police College. After his testimony at the preliminary hearing, Crown counsel, Mr. Miller, informed him that his understanding was incorrect. Until then, he was not aware that he had a duty to withhold questioning a suspect who indicated a wish to speak to counsel until they did so. In the thirteen months between the arrest of the Accused and his preliminary hearing, PC Giglia continued to act the same way towards all accused persons. He cannot say whether he had made the same mistake with another accused person.

[102] PC Giglia stated that he attempted to call Mr. Robbins. He first conducted a Google search for Mr. Robbins’ name in his vehicle’s workstation computer, while the Accused sat in the back seat. PC Giglia found a name and number and called it. He agrees that Mr. Robbins was part of a firm. However, he failed to make note of the any details of the other than the number he found: 416-598-1811. He made no note of the name of Mr. Robbin’ firm from the Google search (as set out below, Mr. Robbins is a member of a firm of lawyers). While in his cruiser, PC Giglia tried to call the number he had Googled, using a cell phone. It rang to voicemail, whereupon he says that he left a message. PC Giglia cannot recall the voicemail message he received on Mr. Robbins’ line. He does not recall the exact words of his message but believes that he identified himself as an officer and stated that the Accused wished to speak to counsel. He cannot recall whether he mentioned the Accused’s name. PC Giglia testified that he tried to call again, more than once, but did not record the number of times that he called or any details of the calls. In all, he was in his vehicle with the Accused for about 20 minutes. The Accused was present during these attempted calls and never indicated any dissatisfaction with PC Giglia’s attempts. He never gave the name of another lawyer or law firm.

[103] In cross-examination, PC Giglia testified that he does not recall whether he pushed any buttons to leave a message or whether he received an answering machine. He cannot say that the message he left was left on Mr. Robbins’ voicemail. In fact, his notes do not show him having left any message for Mr. Robbins, only that he had negative results. This stands in contrast to his note confirming his message to duty counsel, described below.

[104] After assisting PC Lee in the search of the vehicle’s trunk, PC Giglia returned to his cruiser and re-arrested the Accused for unsafe storage of a firearm and several other offences. This occurred at 4:41 a.m. He read the Accused his rights to counsel and caution a minute later. These were the same rights to counsel and caution statements that he had read to the Accused at the time of the first arrest. He states that he received the same responses from the Accused that he received the first time around. When the Accused again stated that he wanted to speak to Mr. Robbins, PC Giglia told him that he had tried to call Mr. Robbins but had not received an answer. He cannot recall whether he told the Accused that he had left a voicemail for Mr. Robbins. He recognizes that there is a difference between unsuccessfully trying to call someone and leaving a message for them.

[105] PC Giglia asked whether the Accused wished him to call Mr. Robbins again or if he wished to speak duty counsel. At 4:42 a.m., the Accused answered that he wanted to speak to duty counsel. PC Giglia did not offer the option of another private lawyer in Mr. Robbins’ firm or that another family member could try to get hold of Mr. Robbins, the ostensible uncle of the Accused. On the other hand, the Accused never attempted to reach out to any family members or even indicate the names of any family members who may know how to get hold of Mr. Robbins.

[106] At this point, PC Giglia took the Accused to HRPS 20 Division, without having arranged for him to speak to either Mr. Robbins or duty counsel. When PC Giglia got to the station, he looked at its comprehensive telephone book of lawyers. He did not find Mr. Robbins’ phone number. Nonetheless, he tried again to call Mr. Robbins at the previous number, without success. He does not recall leaving a message for Mr. Robbins and his notes do not record him doing so.

[107] After advising the Accused of his inability to connect with Mr. Robbins, and with the consent of the Accused, PC Giglia called duty counsel at 5:24 a.m. and left a message. Unlike the telephone calls to Mr. Robbins, that message to duty counsel was recorded in PC Giglia’s notes. He has no notes that state whether duty counsel called back. However, there was a notation in the station’s phone log, showing that the Accused had spoken to duty counsel twice; after 5:30 a.m. and again after 9:00 a.m. PC Giglia has no personal knowledge of whether the Accused actually spoke to duty counsel. He had no other dealings with the Accused and did not attempt to take a statement from him.

[108] The Accused filed an affidavit from a student-at-law with his counsel’s law firm, Rusonik, O’Connor, Robbins, Ross & Angelini LLP (“RORRA”), whose contents are not contested by the Crown. It states that:

1. RORRA’s telephone number is 416-598-1811, the number that PC Giglia stated that he obtained from a Google search on his cruiser workstation.
2. When one calls the RORRA telephone number, the caller automatically receives a recorded message with a male voice, identifying that they had reached RORRA and that if they know the person they wish to reach, they can either say the person’s name or call their extension. In the alternative, they may say “operator” or press zero.
3. If nothing is done or a voice cannot be heard, an automatic female voice comes on the line, stating “I am having trouble hearing you”. At that point the original (male voiced) message is repeated, following which there is a pause to state the name of the subject of the call or to input the extension. Again, if there is no response, an automatic female voice comes on to say “I am still having trouble hearing you”. Again, after a brief pause, the original message is repeated for the third time.
4. After three opportunities to reach an extension are unsuccessful, an automatic female voice comes on to say: “attendant transfer, I’m sorry, extension is not available”. The original (male voiced) message then repeats itself yet again. As the student deposes “[t]hese variations will continue to loop until an action is taken by the caller. At no point, will the automated message system transfer the caller to a voicemail. This would require an action to be taken by the caller.”
5. When the student called the RORRA phone line and, in response to the first message, stated “Anthony Robbins”, he was transferred to Mr. Robbins’ direct phone line. When Mr. Robbins did not answer after one ring, the call was forwarded to his personal voicemail. When the student repeated the process a second time, Mr Robbins picked up the phone and spoke to the student.
6. If a caller, following the male message, says “operator” or presses zero, they will get whatever RORRA staff member has their phone connected to the office line at the time. If there is no such person, the caller will be directed to the front desk. If no one picks up from the front desk, they will be directed to the general office voicemail. The student personally verified this process.
7. The key point is that, in the words of the student: “[i]t is impossible for a caller to be sent to voicemail, unless an action is taken by the caller. The only possible way to be transferred to the general mailbox, would be if the caller said ‘operator’ or pressed zero. If the caller ends up at the general mailbox, this means that they chose not to follow the option which states, ‘If you know the person you are trying to reach, please clearly say their first and last name, or dial their extension.’”
8. The student further asserts, based on a review of records and emails, to which the Crown does not object, that: i. there were no problems with the RORRA phone system on the night of the arrest of the Accused, June 8, 2019. ii. If anyone had called the RORRA phone line between 3:00 – 5:30 a.m. on June 8, 2019 and said Mr. Robbins’ name, they would have been transferred to Mr. Robbin’s personal phone and that phone would have had a record of the call. iii. there were no incoming or outgoing calls to Mr. Robbin’s personal phone between 3:00 – 5:30 a.m. on June 8, 2019.
9. Accordingly, the student concludes, “[n]o one called the office, listened to the automated message and said ‘Anthony Robbins’ on June 8th 2019 between 3:00am and 5:30 am on June 8th 2019 [sic]”.

[109] Based on the evidence set out above, and as described in greater detail below, I find that both PCs Lee and Giglia breached the Accused’s Charter 10(b) rights. Those breaches ranged in severity from relatively minor to significant.

Questioning of Accused About Why he did not Volunteer Knowledge of his Suspension

[110] After learning of his licence suspension, PC Lee questioned the Accused about the reason for not volunteering the fact of his suspension. The question elicited an incriminating answer. The Accused was aware of his suspension. Ordinarily, a police officer does not have to read rights and a caution to every person pulled over at a traffic stop. But here, the officer actually questioned the Accused about the merits of the investigation in which he was then engaged. That being said, the question appears to have been a spontaneous one, borne of frustration or simple inquiry, rather than a considered attempt to interrogate him. The answer has little to do with the criminal charges that the Accused is facing and the Crown does not intend to rely on the answers. In those circumstances, the breach is a minor one.

Delay in Reading Rights and the Caution on First Arrest

[111] Regarding PC Giglia, it appears that eleven minutes passed between the time that he arrested the Accused at the behest of PC Lee and the time that he provided the notice and caution to the Accused. PC Giglia had difficulty explaining that delay. His car was only two car lengths away from the location at which he arrested the Accused. He said that he had to extensively search the Accused, but even that does not fully explain the delay. PC Giglia denied assisting in PC Lee’s search of the vehicle before reading the Accused’s rights and the caution to him. In all, there seems to have been an unexplained delay on June 8,2019. But it was one of only a few minutes, during which nothing of consequence occurred between PC Giglia and the Accused. That delay is not significant enough to amount to a serious breach.

Questioning of the Accused Immediately After the Caution and Statement that he wished to Speak to Mr. Robbins

[112] Far more significant is a breach to which the Crown admits. Immediately after reading his rights and the caution to the Accused, PC Giglia began to question him. He asked him to explain the presence of the drugs and a knife in his vehicle. That question elicited an exculpatory answer. PC Giglia originally denied asking the question but when confronted with his own notes, had to admit that he had asked the question.

[113] In conceding the impropriety of the question and its timing, the Crown states that it will not attempt to elicit evidence of the answer in evidence. That concession does not obviate the clear and serious breach. I will have more to say about that in my s. 24(b) analysis below.

Failure to Provide a Meaningful Opportunity to Consult with Mr. Robbins

[114] The accused’s third s. 10(b) argument is that PC Giglia failed to provide him with a meaningful opportunity to consult with counsel of his own choice. That argument is a compelling one. The point is made in both the testimony of PC Giglia and the evidence of the RORRA law student.

[115] PC Giglia only offers the vaguest evidence of a good faith attempt to contact Mr. Robbins after obtaining his name. He did call the number found in the Google search. But he is unable to recount any details of his attempt to speak to or leave a message for Mr. Robbins. In neither his testimony nor his notes, does he offer any details that would confirm that he even followed the prompts that he would have automatically received had he called the RORRA telephone number. He does not even record having left a message for Mr. Robbins in his notes. This is the case despite a number of alleged calls on the night of the arrest. On the other hand, he notes that he did leave a message for duty counsel when he called that office from the police station.

[116] Like much of his evidence, the evidence of PC Giglia on this point is not very persuasive. His notes are incomplete, and they do not fully accord with his oral evidence. When confronted with those notes he has had to change his evidence on several occasions. Despite the absence of evidence from the Accused, I cannot accept the evidence of PC Giglia at face value. More than one element of his evidence is not reliable.

[117] I add that the evidence of the student is clear. Had PC Giglia called the RORRA number and attempted to contact Mr. Robbins through the automatic phone system, there would have been a record of the call. Had he made the number of calls he alleges, there would have been a number of records. Further, he would have been able to have reached Mr. Robbins personally or have left a message on his personal telephone line. There is no record of PC Giglia having done so.

[118] If, after reaching the RORRA phone line, PC Giglia had trouble navigating the phone system and its automatic prompts, I would have expected him to have recorded that fact in his notes and brought that fact up in his testimony. He may well have explained the problem to the Accused. But I heard no evidence of the sort.

[119] I have no reason to believe that PC Giglia, despite claims of numerous calls to the RORRA telephone line, made anything but a perfunctory attempt to contact Mr. Robbins, if any. Whether through inattention or some other motivation, he failed to make a meaningful attempt to contact Mr. Robbins and thereby ensure that the Accused’s s. 10(b) rights were honoured. The fact that he questioned the Accused right after reading him his rights and the caution only increases the severity of the s. 10(b) breaches.

[120] The Accused argues that PC Giglia attempted to direct the Accused to duty counsel rather than to counsel of his choice, and that this “channelling” represents a further s. 10(b) breach: R. v. Manuel, above, at paras. 17 and 43. From the evidence, I cannot say that the attempt to direct the Accused to duty counsel rather than Mr. Robbins or even another lawyer at RORRA was deliberate. Much of the conduct that led to the breach of the Accused’s Charter rights on the night of his arrest appears to be the result of inexperience and a failure of training of the two officers in question.

[121] However, the fact that the Accused appears to have ended up having spoken to duty counsel rather than counsel of his choice because of the arresting officer’s failure to offer him a meaningful opportunity to consult with counsel of his choice without delay is another factor in my s. 10(b) finding.

Issue No. 4: Under Charter s. 24(2), does society’s interest in the adjudication of the charges against the Accuse outweigh the seriousness of any Charter infringing conduct and the impact of that conduct on the Accused’s Charter protected interests?

[122] Under s. 24(1) of the Charter, anyone whose rights or freedoms have been infringed or denied may apply to a court of competent jurisdiction to obtain the appropriate and just remedy in the circumstances. Under s. 24(2), when a court concludes that evidence was obtained in a manner that infringed or denied any Charter rights or freedoms, it shall be excluded if the admission of that evidence would bring the administration of justice into disrepute.

[123] In Grant, above, at para. 71, the Supreme Court of Canada set out the framework for a s. 24(2) analysis. The court is to consider the following lines of inquiry:

1. the seriousness of the Charter-infringing state conduct;
2. the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little); and,
3. society's interest in the adjudication of the case on its merits.

[124] As the Court stated at para. 71 of Grant, the role of a court determining a s. 24(2) application “is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.”

1. The seriousness of the Charter-infringing state conduct

[125] In Grant, the court explained this line of inquiry by stating that “admission may send the message the justice system condones serious state misconduct”. I have written above about the seriousness of the state conduct in question here. I will summarize the salient points below, referring to the relevant breaches and their seriousness.

Warrantless Inventory Search

[126] The warrantless inventory search was an obvious breach of Charter s. 8. Two things are particularly concerning about it. First, PC Lee felt entitled to conduct the search under TRF-004, a HRPS directive but not a law. Either HRPS officers are being trained to believe that TRF-004 entitles them to conduct a warrantless search anytime that they arrange to have a car towed, whether or not the car is placed in the “custody of the law” or they are not being trained about the limits of TRF-004. Either way, there is a systemic problem. An aggravating factor is the fact that PC Lee admitted that he had been conducting such searches as a matter of course when arranging to tow any vehicle.

Warrantless Search of the Remainder of the Vehicle

[127] Once the drugs had been found in the body of the vehicle and the Accused was arrested, PC Lee felt that he was entitled to search the balance of the vehicle and its trunk without a warrant, as an incident to the arrest. But as stated above, this search was just an extension of the earlier unreasonable inventory search. Had the unreasonable inventory search not occurred, the Accused would not have been arrested and there would be no further search incidental to arrest. Both the arrest and the further search were improper. The further warrantless search represents a further breach of the Accused’s s. 8 rights. While not as egregious as the inventory search because it was ostensibly incidental to arrest, it is part of the chain of events commenced by the improper warrantless inventory search.

Questioning of Accused About Why he did not Volunteer Knowledge of his Suspension

[128] As stated above, this was a minor and technical breach of the Accused’s s. 10(b) rights.

Delay in Reading Rights and Caution on First Arrest

[129] The delay in question is, again, minor.

Questioning of the Accused Immediately After the Caution and Statement that he wished to Speak to Mr. Robbins

[130] PC Giglia’s questioning of the Accused immediately after reading him his rights and the caution was an obvious and serious breach of his s. 10(b) rights. I note that PC Giglia originally denied much of the substance of the question that he asked the Accused and had to be reminded of the question and answer in cross-examination.

[131] The s. 10(b) breach is not obviated by the Crown’s reasonable decision not to attempt to tender the statement made by the Accused. I accept that the questioning was not motivated by bad faith. Rather, it represented a want of training as well as an error in judgment. But none of that changes the seriousness of the breach.

[132] Both the s. 10(b) breach and the reasons for it represent a serious concern. Somewhere in PC Giglia’s training, he came to a very problematic understanding of an accused’s s. 10(b) rights. PC Giglia stated that he had been trained at Police College that he could continue to ask questions even after an accused stated that they wished to speak to counsel. He felt that this is normal practice. He continued to do that until Crown Counsel informed him of the impropriety off this approach. No one who trained him or is in authority above him appears to have disabused him of the notion.

[133] The breaches of the Accused’s. 10(b) rights were serious ones.

Failure to Provide a Meaningful Opportunity to Consult with Mr. Robbins

[134] The Accused was unequivocal in his desire to consult with Mr. Robbins, with whom he says he has a family connection. Not only did PC Giglia question the Accused after he articulated his desire to speak to counsel, he failed to effectively provide the Accused a meaningful opportunity to even speak to the counsel of his choice. Whether through a lack of facility with the lawyer’s phone system or otherwise, PC Giglia’s attempts to contact Mr. Robbins were completely ineffective. I have no reason to believe that he even left Mr. Robbins a message, even though the RORRA phone system was set up to allow such late-night calls.

[135] Ultimately, the Accused appears to have spoken to duty counsel. But that was only because he was given to understand that PC Giglia’s attempts to contact Mr. Robbins had not succeeded, not that PC Giglia had botched the job. While I have no reason to doubt PC Giglia’s good faith, that good faith is not an excuse here. PC Giglia’s failure deprived the Accused of his right to retain and instruct counsel of his choice without delay. He should have done better.

[136] In sum, I must address the concern that the admission of the evidence gathered in the face of numerous breaches of the Accused’s Charter rights may send the message that the justice system condones serious state misconduct. This factor strongly favours exclusion.

2. The Impact of the Breach on the Charter-protected interests of the Accused

[137] Under the Grant second line of inquiry, the court is required to measure the extent to which a Charter breach "actually undermined the interests protected by the right infringed": Grant, at para. 76. As Stribopoulos J. wrote in Jhite at para. 94 above,

The impact may vary, from being fleeting (transient) or technical to profoundly intrusive. The more impactful on the protected interest, "the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute": Grant, at para, 76.

[138] The impact of the breaches upon the Accused’s Charter protected rights was serious and significant. First there was the s. 8 breach arising from the unreasonable inventory search of the vehicle. Of course, the location of the search was the vehicle of the Accused, not his home. As Stribopoulos J. wrote at para. 159 of R. v. Yogeswaran, “[t]o be sure, the expectation of privacy in a vehicle is considerably less than that enjoyed in one’s home or office.” Nonetheless, there is a real impact on the Accused’s sense of privacy when his car is searched without a warrant, based only on a police officer’s interpretation of an internal police policy directive. Here, the search went through the entire contents of the vehicle, including both contraband and personal items of the Accused. It led to the arrest of the Accused and then a further search of the vehicle and its trunk, both improperly. The search meaningfully impacted upon the Accused’s protected privacy interests.

[139] Similarly, upon his arrest, the Accused was in acute need of timely legal advice from counsel of his choice at a most vulnerable time. He was denied that right because of the failure of the police to make proper efforts to contact Mr. Robbins. The impact on the Accused is exacerbated by the fact that, after reading his rights and cautioning him, the officer immediately began to question the Accused. He did so without having allowed the Accused the opportunity to obtain the legal advice he explicitly sought. The fact that the Crown now, many months after the fact, undertakes not to tender the Accused’s responses to the officer’s questioning may somewhat diminish the impact of the breach but it does not eliminate it at all. At the end of the day, the conduct of the police meaningfully impacted in the Accused’s s. 10(b) right to counsel.

[140] These factors favour exclusion.

3. Society's Interest in the Adjudication of the Case on its Merits

[141] The charges against the Accused are numerous and serious. They not only concern illegal drugs but also a saw-off shotgun and numerous gun shells as well as another dangerous weapon.

[142] If the evidence is admitted, there is a compelling case against the Accused. If it is excluded, that exclusion will effectively gut the prosecution. This factor strongly supports admitting the evidence.

Balancing of the Three s. 24(2) Factors

[143] While the facts in this case are not identical to those in Cartwright, the conclusions of McArthur J. in excluding the evidence before the court in that case are equally applicable to the facts of this case as well. She wrote at paras. 80 to 81:

80 The charges are serious. Courts have made clear, however, that this can cut both ways. On the one hand, the seriousness of charges can be said to enhance society's interest in an adjudication on the merits. But, where the consequences to the defendant whose rights have been infringed are particularly serious, the concern that the courts not be seen as condoning police misconduct becomes more pressing. It is essential that the seriousness of the charge does not overwhelm the other factors relevant to the s. 24(2) analysis. (R. v. McGuffie, supra at para. 73; R. v. Patterson, 2017 SCC 15, at para. 55)

81 Moreover, as noted by Doherty J. in R. v. McGuffie, supra, at para. 63, "If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility." Here, the first two branches of the Grant test point strongly towards exclusion. I find that the admission of the evidence would be seen as condoning blatant disregard for constitutional rights and would bring the administration justice into disrepute. Exclusion of the evidence is required in order to adequately disassociate the justice system from the police misconduct in this case and to reinforce the importance of individual rights.

[144] I add that, taken as a whole, the breaches in this case are so numerous and the explanations for them so problematic and even systemic that, notwithstanding the strong societal interest in having this case determined on the merits, doing so would bring the administration of justice into disrepute. It would send a message of condonation for that conduct and the reasons for that conduct, which cannot be allowed in a free and democratic society.

Conclusion

[145] Accordingly, I exclude the evidence seized from the vehicle driven by the Accused on the night of his arrest.

“Marvin Kurz J.” Electronic signature of Justice Marvin Kurz,

Original will be placed in court file

Released: September 20, 2021

[^1]: i.e. When a vehicle is disabled and its owner does not request a specific towing company, the towing company will then be selected on a rotational basis from a pool of companies.