COURT FILE NO.: CR-21-5049

DATE: 20211209

Delivered orally and in writing: December 9, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JOSHUA RYAN GILLESPIE

Accused

Richard L. Pollock, for the Crown as Agent for the Director of Public Prosecutions

Gregory Lafontaine and Julia Kushnir, for the Defendant

HEARD: September 22, 23 and 24, 2021 and October 7, 2021

RULING ON MOTION TO EXCLUDE

Munroe J.:

[1] The accused was arrested for murder. A search incident to that arrest revealed a variety of alleged illegal drugs in the accused’s possession. The murder case against the accused was withdrawn. This drug case continues. In the Charter motion now before me in this case, the drug case, the defence advances two main challenges: 1) s. 8 - the lawfulness of the murder arrest upon which the ensuing search was based; and 2) s. 10(b) - compliance with the implementational duty.[^1]

[2] The defendant, Joshua Ryan Gillespie, is accused in three counts of this indictment with possessing Schedule I controlled substances (cocaine, oxycodone, and fentanyl) for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and one count of simple possession of a Schedule I controlled substance (oxycodone), contrary to s. 4(1) of the Controlled Drugs and Substances Act. All said crimes allegedly took place in Windsor, Ontario, on Sunday, April 14, 2019.

[3] On that date, at about 3:30 p.m., Mr. Gillespie was arrested in Windsor for the first-degree murder of Jerome Allen. Shortly thereafter on the same day, Mohammad Al-Yousufi was arrested for the same murder, and Rosalind Nussio was arrested for accessory after the fact to the same murder. All three were subsequently charged with these crimes in Information No. 19-901. Almost four weeks later, the murder information was withdrawn against all three individuals at the request of the Crown. The police investigation of the alleged murder of Jerome Allen continues.

[4] In his Notice of Application for the Exclusion of Evidence (“motion to exclude”), Mr. Gillespie asserts, in pertinent part, that the police lacked lawful grounds to arrest him for murder on April 14, 2019, thus making the ensuing search of his person unlawful and contrary to s. 8 of the Canadian Charter of Rights and Freedoms (“Charter”).

[5] Also, in his motion to exclude and as a separate ground for exclusion, Mr. Gillespie asserts that he asked to speak with counsel after his arrest but was not afforded this opportunity until almost three hours later contrary to s. 10(b) of the Charter.

[6] Mr. Gillespie asserts that, pursuant to s. 24(2) of the Charter, the drugs and related evidence should be excluded as evidence in his trial because they were obtained in a manner that infringed or denied these, his Charter rights.

[7] The voir dire on Mr. Gillespie’s motion to exclude spanned four days. Evidence was taken. The court heard from five Windsor Police witnesses: Cst. Misty Medeiros, the arresting officer; Sgt. Christopher MacKenzie, the recipient of telephone calls from Brittany Scott; Cst. Peter Gacanin, one of the stopping officers; Special Constable Alexander Hagg, the cells officer assigned to Mr. Gillespie; and Sgt. Anthony Nosella, the officer in charge of this investigation at the time of the arrest of Mr. Gillespie. In addition, the following exhibits were admitted:

Ex. 1: Windsor Police Directive 731-02;

Ex. 2: Windsor Police Directive 731—1;

Ex. 3: Lawyer Log Call Record;

Ex. 4: Booking Sheet – Prisoner Transport;

Ex. 5: Production Order ITO (redacted);

Ex. 6: General Warrant ITO (redacted);

Ex. 7: Transcript of 911 call of Brittany Scott;

Ex. 8: police report – MacKenzie;

Ex. 9: police report – Henry;

Ex. 10: police report – Hool; and

Ex. 11: criminal record of Mr. Gillespie.

[8] The evidence sought to be excluded are the following items seized from the shoulder bag carried by Mr. Gillespie at the time of his arrest:

20.7 grams of fentanyl powder;

23 grams of crack cocaine;

75 oxycodone pills (5 mg);

7 oxycodone pills (40 mg);

$2,100; and

Functioning digital scale.

FACTS

[9] The facts are largely uncontested. Any disputes will be noted.

Grounds for Arrest

Preface

[10] The grounds for arrest are from the then officer in charge, Det. Anthony Nosella.[^2] He gave evidence at the voir dire. The bulk of the factual grounds are found in the Information to Obtain (“ITO”) for the Production Order and for the General Warrant. Both concerned the same murder investigation, and both were executed by other Windsor police officers before the arrest. Det. Nosella testified that that he has read both of the ITO’s, believes they are true, and relied upon them for his grounds to arrest. In redacted form, they are Exhibits 5 and 6.

[11] In addition, the transcript of the 911 call on December 29, 2018 by Brittany Scott is Exhibit 7. Sgt. MacKenzie, the officer who took the call, testified at the voir dire. Related police reports are Exhibits 8-10.

[12] Finally, Mr. Gillespie’s criminal record is Exhibit 11.

Grounds

[13] A missing person’s report was made to the police on October 27, 2018 for Jerome Allen. He was last seen or heard from in the early hours of October 20, 2018. On that date was his last phone call, his last contact with family or friends, and his last bank activity. He remains missing.

[14] A homicide investigation was opened on November 26, 2018, following a report from Mr. Allen’s sister that she received information that her missing brother had been murdered.

[15] Mr. Allen lived in the upper unit at 3417 Cross Street, Windsor. The lower unit was occupied by the owner of the building, Mohammad Al-Yousufi, and his roommate, the accused, Joshua Gillespie.

[16] Those three – Messers Gillespie, Allen and Al-Yousufi - were seen together at adult entertainment establishments in Windsor on the night of October 19, 2018 and the early morning hours of October 20, 2018. According to an unnamed employee of one of the establishments, Leopard’s Lounge, the three came into the lounge together. Mr. Allen and Mr. Al-Yousufi had a heated conversation. Mr. Allen looked upset and shortly left. Mr. Gillespie and Mr. Al-Yousufi left a short time later.

[17] Included in the information received by the police was information from a person identified as Brittany Scott. This was from a 911 call placed by Ms. Scott on December 29, 2018. According to her, she overheard Mr. Gillespie tell another person that Mr. Allen was dead, and that he, Mr. Gillespie, had shot Mr. Allen in the head. From her speech, it is evident that Ms. Scott was quite intoxicated at least at the beginning of the conversation. Ms. Scott refused to provide a formal statement and now is dead.

[18] The police extracted photos and videos from the cell phone of Mr. Allen. Some of the videos showed Mr. Allen in possession of drugs and handguns.

[19] From the cell phones of Messers Allen and Gillespie, the police have placed both individuals in a broad area of the City of Windsor during the early morning of October 20, 2018.

[20] Mr. Gillespie has 32 convictions including assault-type crimes, possession of drugs for the purpose of trafficking, and firearms-related crimes. At the time of the murder arrest, Mr. Gillespie had outstanding charges including firearms crimes and possession of controlled substances for the purpose of trafficking.

Implementation of Right to Counsel

[21] Joshua Gillespie was arrested for the first-degree murder of Jerome Allen by members of the Windsor Police Service at approximately 3:30 p.m. on Sunday, April 14, 2019.

[22] Det. Nosella was the lead investigator and instructing officer on the arrests of Mr. Gillespie, Mohammed Al-Yousufi, and Rosalind Nussio on the Jerome Allen murder investigation.

[23] Det. Nosella held a briefing on the arrests earlier on April 14, 2019.

[24] Officers of the drug unit were tasked to make the arrests. Cst. Misty Medeiros was tasked with the arrest of Mr. Gillespie and his transportation to the detention unit.

[25] Because of the nature of the crime and Mr. Gillespie’s criminal history, officers of the Emergency Services Unit (“ESU”) were tasked to safely stop and detain Mr. Gillespie and then turn him over to the drug unit officers for formal arrest.

[26] Det. Nosella gave a special instruction at the briefing regarding any seized cell phone: secure and promptly turn over to the special unit for later access pursuant to court order. Det. Nosella had concern that the information on the phone could be remotely removed. The officer did not instruct the implementing officers that securing the phone took precedence over providing the accused with his right to counsel.

[27] Mr. Gillespie was under police surveillance on April 14, 2019.

[28] The ESU began to act on that date at about 3:28 p.m. Multiple police vehicles boxed in the pickup truck operated by Mr. Gillespie with Mr. Al-Yousufi in the passenger seat. The police deployed a distraction device to disorient and distract the occupants of the truck. The driver’s window was smashed. The occupants were challenged at gunpoint. Mr. Gillespie was pulled out of the truck and placed on the ground handcuffed to his rear. Mr. Gillespie was turned over to Cst. Medeiros. It was over very quickly. Cst. Gacanin estimated the time between the stop and the turn over at about two minutes.

[29] Mr. Gillespie was turned over to Cst. Medeiros at about 3:30 p.m.

[30] Cst. Medeiros recognized Mr. Gillespie from his police photograph. To her, he seemed surprised and upset.

[31] Cst. Medeiros and her partner (Cst. Jones) quicky seized the shoulder bag of Mr. Gillespie and placed him in the rear seat of the police vehicle. At the scene, the arresting officers examined the contents of the shoulder bag. They found and seized a cell phone. They also saw cash and various controlled substances. They did not make a drug arrest on the scene.

[32] Once in the police vehicle, Cst. Medeiros advised Mr. Gillespie that he was under arrest for the murder of Jerome Allen. This was approximately 60 to 90 seconds after she took control of Mr. Gillespie at 3:30 p.m. She then read Mr. Gillespie his right to counsel. When asked if he wished to call a lawyer, Mr. Gillespie said he did and named Greg Lafontaine as the lawyer.

[33] Before travelling to the detention unit at the Windsor Police headquarters, Cst. Medeiros first went to the police training branch to deliver a cell phone found in the shoulder bag of Mr. Gillespie. This delivery was to Cst. LeBlanc of a police unit with technological capabilities of extracting information from cell phones. Cst. Medeiros had made this arrangement before the arrest and, on reflection, agrees she could have had Cst. LeBlanc come to her or to the police station rather than deliver the cell phone to her. This delivery was noted at 3:36 p.m. The training branch is about four city blocks from the place of arrest, and in turn, the training branch is about eight city blocks from headquarters. Cst. Medeiros estimated this delivery added about five minutes to the time to get Mr. Gillespie to headquarters.

[34] Mr. Gillespie, in custody, reached the sally port of Windsor Police headquarters at 3:43 p.m. There the police secured their firearms, searched Mr. Gillespie, and took the elevator up to the detention unit.

[35] Mr. Gillespie arrived in the detention unit at 3:50 p.m.

[36] Cst. Medeiros returned to the drug unit where she and her partner, Cst. Jones, closely examined the contents of the shoulder bag seized from Mr. Gillespie. Therein they found crack cocaine, oxycodone tablets, a baggie with approximately an ounce of an unknown but believed to be controlled substance, Canadian currency, and a functioning digital scale.

[37] Cst. Medeiros took no steps to ensure Mr. Gillespie’s right to counsel. That was to be facilitated by the special constables in the detention unit.

[38] Windsor Police Special Constable Alexander Hagg (“SPC Hagg” or “the special constable”) was assigned to Mr. Gillespie including to ensure satisfaction of his right to counsel. At that time, SPC Hagg had been a cell officer for two years.

[39] Although aware of the importance of complete notes, SPC Hagg conceded his notes could have been more detailed. Indeed, SPC Hagg wrote and submitted a new report on the morning of his evidence, on September 23, 2021, two years and five months after the arrest.

[40] At 3:55 p.m., Mr. Gillespie was removed from the dry cell to complete the booking process. SPC Hagg did not remember why Mr. Gillespie was first placed in the dry cell.

[41] At 4:02 p.m., Mr. Gillespie was completing the booking process.

[42] At 4:04 p.m., Mr. Gillespie, during the booking process, again was asked if he wanted to speak to a lawyer and again said he did and named Greg Lafontaine of Toronto as his lawyer. This was heard by SPC Hagg.

[43] In his evidence at the voir dire, SPC Hagg testified he was aware of the importance of facilitating a lawyer call when requested by a newly arrested detainee. He was aware that the right to counsel was to be facilitated “without delay” which meant immediately. SPC Hagg had the responsibility of ensuring that Mr. Gillespie’s right to counsel was implemented.

[44] SPC Hagg made the first call to counsel for Mr. Gillespie at 5:20 p.m., one and one half hours after Mr. Gillespie arrived at the detention unit and one hour and fifty minutes after his arrest.

[45] According to SPC Hagg, he first searched for and found the office phone number of Greg Lafontaine. But, again according to the cell officer, because it was a Sunday and, in his experience, lawyers do not often work at their office on Sundays, he continued to search for a home or cell number for Mr. Lafontaine. SPC Hagg made no notes on his efforts to secure other phone numbers for Mr. Lafontaine. He did have other responsibilities.

[46] At approximately 5:00 p.m., SPC Hagg decided to call Mr. Lafontaine’s office number but did not call until 5:20 p.m. The reason for this delay is disputed.

[47] According to SPC Hagg, Cst. Medeiros came down to the detention unit and spoke to him at about 4:50 p.m. to 4:55 p.m. She specifically asked him to hold off on making the lawyer call because more drug charges were coming so the lawyer call could be done for all charges at the same time. The cell officer swore he followed her directions because he was still trying to find another number for Mr. Lafontaine so he was not overly concerned. Specifically, SPC Hagg testified before me that he held off making the lawyer call for 20 minutes at the request of Cst. Medeiros because she wanted to add new charges. Until the morning of his evidence, the cell officer made no notes or reports regarding Cst. Medeiros’ request.

[48] According to Cst. Medeiros in her sworn evidence before me, she did not tell SPC Hagg to delay the lawyer call. The murder case was very serious, and it was not her case. She would never direct anyone to wait on a counsel call.

[49] At about 5:18 p.m., Cst. Medeiros returned to the detention unit and arrested Mr. Gillespie on the drug charges now before this court.

[50] At 5:20 p.m., SPC Hagg made a telephone call to lawyer Greg Lafontaine for Mr. Gillespie at his office number. The cell officer left a voice mail message. The officer did not listen to the complete recorded message. It is uncontested that the electronic message disclosed a cell phone number for Mr. Lafontaine.

[51] A lawyer on behalf of Mr. Lafontaine called into the detention unit and spoke with Mr. Gillespie at 6:13 p.m. The lawyer/client conversation was six minutes in length.

POSITIONS OF PARTIES

Defence

Section 8

[52] The arrest of Mr. Gillespie for the murder of Jerome Allen was unlawful.[^3] The police grounds to arrest were not objectively reasonable.

Section 10(b)

[53] The defence challenges only the police implementational duty to facilitate Mr. Gillespie’s communication with his counsel “without delay” following Mr. Gillespie’s invocation of his right to counsel. The delay was almost two hours before the police first placed a telephone call to counsel for Mr. Gillespie. There was another delay of almost one hour before Mr. Gillespie actually spoke to counsel. In addition, the arresting officer did not go directly to the police station, and the opportunity to contact counsel, following the arrest and invocation of rights. Rather, she went out of the way to deliver a piece of evidence to another officer thus delaying counsel communication.

Section 24(2)

[54] The defence asserts the police conduct here merits the exclusion of the evidence seized. Their breaches were multiple and serious. According to the defence, the police exhibited a wilful and reckless disregard for the Charter rights of Mr. Gillespie. The police conduct was serious. The impact on the rights of Mr. Gillespie, too, was serious. When considered individually or collectively, the admission of the evidence seized would bring the administration of justice into disrepute.

Prosecution

Section 8

[55] The Crown argues there was no s. 8 breach. When all the circumstances known to the officer at the time are considered collectively, the officer’s subjective belief of grounds to arrest Mr. Gillespie for murder was objectively reasonable.

Section 10(b)

[56] The Crown acknowledges breaches of s. 10(b), namely the failure of the police to facilitate prompt communication with counsel.

Section 24(2)

[57] Crown counsel argues that the s. 10(b) breaches here do not entitle the defence to the remedy of exclusion of the evidence.

[58] First, the threshold issue of “obtained in a manner” is not satisfied. There is no causal connection between the seizure and the breaches. Moreover, the seizure was not tainted by either breach; indeed, the seizure was concluded before the breaches occurred.

[59] Second, the defence has failed to establish, on a balance of probabilities, that the admission of the seized evidence at trial would bring the administration of justice into disrespute. Although the breach is not insignificant, it was neither a part of a pattern of misconduct nor was it a part of a systemic problem. With regard to the testimonial inconsistencies between Cst. Medeiros and the cell officer, Crown counsel posits that this is an issue of reliability and not of credibility. The impact of the breach on the accused was technical and minor. Finally, the seized evidence is essential for the prosecution, and society has a interest to adjudicate this case on its merits. In conclusion, when balanced, the evidence ought to be admitted.

GOVERNING PRINCIPLES

Search Incident to Arrest

[60] The requirements of a lawful search incident to an arrest were recently and clearly set forth by Fairburn J.A. in the Court of Appeal for Ontario decision of R. v. Canary, 2018 ONCA 304, at paras. 21-23, 30 and 32-33:

Where a peace officer believes on reasonable grounds that a person has committed an indictable offence, the officer may make a warrantless arrest: s. 495(1)(a) of the Criminal Code. There is both a subjective and objective component to the reasonable grounds inquiry. To fulfill the subjective requirement, the officer must hold an honest belief that the person committed an offence. The officer "must subjectively believe that there are reasonable grounds to make the arrest": R. v. Saciragic, 2017 ONCA 91, leave to appeal refused, [2017] S.C.C.A. No. 106, at para. 16. To fulfill the objective requirement, the officer's belief must be objectively reasonable in the circumstances known to the officer at the time of arrest: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-51; R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at para. 38; Saciragic, at para. 16. The objective inquiry asks whether "a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest": Storrey, at pp. 250-51.

When considering whether an officer's subjective belief is objectively reasonable, the court looks at the objectively discernible facts through the eyes of a reasonable person with the same knowledge, training and experience as the officer: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 45-47. Determining whether sufficient grounds exist to justify an exercise of police powers is not a "scientific or metaphysical exercise", but one that calls for the application of "[c]ommon sense, flexibility, and practical everyday experience": R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 73.

The reasonable grounds standard does not require the establishment of a prima facie case or proof beyond a reasonable doubt. The test is met where, based on all of the circumstances known to the officer, "credibly-based probability" replaces suspicion: R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1166; Hunter et al. v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 167; R. v. Dhillon, 2016 ONCA 308, 335 C.C.C. (3d) 144, at para. 25; R. v Muller, 2014 ONCA 780, 122 O.R. (3d) 721, at para. 33.

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

The appellant does not dispute that if the initial arrest was lawful, the search incident to arrest was also lawful.

A search incident to arrest rests on three components: (a) the arrest is lawful; (b) the search is truly incidental to the arrest, in the sense that it is connected to the arrest, either as a means by which to discover and preserve evidence connected to the arrest, protect safety, or protect against escape; and (c) the search is conducted reasonably: R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518, at para. 37; R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at paras. 14, 19, 20.

[61] The recent decision in R. v. Bajich, 2019 ONCA 586, addressed the consideration of information from confidential sources within the grounds to arrest, at para. 9:

Where … the grounds [to arrest] are based on confidential source information, the court must consider whether the information provided was compelling, whether the source was credible and whether the information was corroborated by police investigation. The court must consider the totality of the circumstances, and weaknesses in one area may be compensated to some extent by strengths in the other two areas: R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140 (S.C.C.), at p. 1168.

Right to Counsel

[62] Section 10(b) of the Charter provides, “Everyone has the right on arrest or detention … to retain and instruct counsel without delay….”

Purposive Approach

[63] The Charter is to be interpreted purposively in light of the objects of the Charter generally and of the specific provision under review: Hunter et al. v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at pp. 155-157.

[64] The purpose of s. 10(b) was articulated by Lamer C.J. in R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at p. 191:

The purpose of the right to counsel guaranteed by s. 10(b) of the Charter is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfil those obligations: [citation omitted]. This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him- or herself. Accordingly, a person who is “detained” within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty: [citations omitted]. Under s. 10 (b), a detainee is entitled as of right to seek such legal advice “without delay” and upon request. As this Court suggested in Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383, at p. 394, the right to counsel protected by s. 10(b) is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process. [Emphasis in original].

Police Duties

[65] In Bartle, the Court indicated, at p. 192, that Section 10(b) imposes at least three duties on the police who arrest a person:

1. The Informational Duty: to inform the arrestee of his right to retain and instruct counsel without delay;
2. The Implementational Duty: if the arrestee has indicated a desire to exercise this right, to provide the arrestee with a reasonable opportunity to exercise the right; and
3. The Hold Off Duty: if the right is exercised, to refrain from eliciting evidence from the arrestee until a reasonable opportunity to exercise the right has been given.

[66] The second and third duties are not triggered unless and until the arrestee indicates a desire to exercise his or her right to counsel: Bartle, at p. 192.

Without Delay

[67] It is settled law that “without delay” means immediately: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R.460, at para. 41. “[T]he police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention”: Suberu, at para. 42 (emphasis added).

[68] Subsequently, the Supreme Court in R. v. Taylor, 2014 SCC 50, held as follows, at para. 24:

[T]he duty to facilitate access to a lawyer … arises immediately upon the detainee’s request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances. [Citation omitted.] Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.

Exclusion Remedy

[69] Section 24(2) of the Charter provides for an exclusion remedy for Charter violations under certain circumstances. It states, in pertinent part, as follows:

Where … a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[70] There are two components of s. 24(2). First, there is a threshold requirement to show that the challenged evidence was “obtained in a manner that infringed or denied” a Charter right. Second, upon satisfaction of the first element, there must be an evaluation to determine whether the admissibility of the evidence “would bring the administration of justice into disrepute”: R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 188 C.C.C. (3d) 289 (Ont. C.A.), at para. 44.

Threshold

[71] When the threshold requirement is engaged, it is to be analyzed generously. A causal connection between the Charter violation and the acquisition of the evidence is not essential. The connection may be temporal, contextual, causal, or a combination of these three. The connection must be more than tenuous. All evidence must be considered: Plaha, at para. 45.

[72] The Court of Appeal in R. v. Pino, 2016 ONCA 389, provided considerations to guide the court’s approach to the “obtained in a manner” requirement, at para. 72:

• The approach should be generous, consistent with the purpose of s. 24(2); • The court should consider the entire “chain of events” between the accused and the police; • The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct; • The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections; and • But the connection cannot be either too tenuous or too remote.

Admissibility

[73] The question of whether the admission of evidence obtained by reason of a Charter breach would bring the administration of justice into disrepute calls for an assessment involving three inquiries: first, the seriousness of the Charter-infringing state conduct; second, the impact of the breach on the Charter-protected interests of the accused; and third, society’s interest in the adjudication of the case on its merits: R. v. Grant, 2009 SCC 32, [2009] S.C.R. 353, at para. 71. A court faced with a s. 24(2) application for exclusion must assess and balance the effect of admitting said evidence on society’s confidence in the administration of justice having regard to these three avenues of inquiry: Grant, at para. 71.

[74] The aim of s. 24(2) is both long term and prospective. This is an objective assessment of the long-term, overall repute of the justice system. The inquiry asks “whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute”: Grant, at para. 68. Damage already has been done; there has been a breach of a Charter provision. The inquiry seeks to ensure that any admissibility of the resulting evidence will not do further damage to the justice system: Grant, at para. 69. Finally, the exclusion remedy is not intended to punish the police or reward an accused but rather to protect the long-term repute of the justice system: Grant, at para. 70.

Seriousness of the Charter-Infringing State Conduct

[75] “The main concern is to preserve public confidence in the rule of law and its processes”: Grant, at para. 73. The court cannot be seen to condone violations of the law; the court must distance itself from that conduct: Grant, at para. 72. Obviously, breaches, like all forms of conduct, are not uniform but vary in seriousness. Minor or inadvertent violations are at one end of the spectrum, and those done intentionally or with reckless disregard of Charter rights fall at the other end: Grant, at para. 73. Those at the serious end of the spectrum will have a negative effect on public confidence in the rule of law and “risk bringing the administration of justice into disrepute”: Grant, at para. 74.

[76] There are factors that may attenuate or accentuate the seriousness of police conduct resulting in a breach. “Good faith” by the police officer may reduce the court’s need to dissociate itself from the breaching conduct: Grant, at para. 75. However, ignorance of Charter law must not be rewarded, and negligence can never be equated with good faith: Grant, at para 75. A pattern of abuse or a flagrant disregard of the Charter may require the court to dissociate itself from such conduct and would tend to support exclusion: Grant, at para 75.

[77] Misleading in-court testimony is a proper factor to consider as part of this inquiry: R. v. Harrison, 2009 SCC 34, [2009] S.C.R. 494 at para. 26. Such conduct undermines the truth-seeking function of the courts and constitutes a serious blow to the integrity of the administration of justice. A court needs to dissociate itself from such behaviour. The Supreme Court in Harrison, at para. 26, quoted, with approval, the Court of Appeal for Ontario dissent of Cronk J.A.:[^4]

[T]he integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority.

Impact on the Charter-Protected Interests of the Accused

[78] This inquiry “calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed”: Grant, at para. 76. This factor, too, has a range of seriousness from the trivial and technical to the profoundly intrusive: Grant, at para. 76. The more serious the impact, the greater the risk is to the administration of justice if the fruits of the breach are admitted into evidence: Grant, at para 76.

[79] The seriousness of the infringement from this perspective requires an examination of the interests engaged by the particular right: Grant, at para. 77. Each case must be assessed on its own merits.

[80] Regarding violations of s. 10(b), the impact is on the accused’s freedom to choose to speak to the police as well as on his or her privacy, bodily integrity, and dignity. Moreover, the s. 10(b) interests go beyond these concerns. As stated by the Court of Appeal in R. v. Noel, 2019 ONCA 860, at para. 160:

Beyond this, the right to counsel is also important in providing “reassurance” and advice, on such questions as how long the detention is apt to last, and what can or should be done to regain liberty: Debot, at p. 1144, Suberu, at para. 41. As Doherty J.A. said in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 45:

The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.

Society’s Interest in an Adjudication on the Merits

[81] There is an overall societal interest in deciding criminal cases on their merits: Grant, at para. 79. The reliability of the evidence sought to be excluded is a factor here because its exclusion may “render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute”: Grant, at para. 81. “Reliability issues with physical evidence will not generally be related to the Charter breach. Therefore, this consideration tends to weigh in favour of admission”: Grant, at para. 115. The importance of the evidence to the prosecution’s case also is a factor that may be considered: Grant, at para. 83. The seriousness of the underlying offence, however, if considered at all, must be considered very carefully because it can impact both ways. The inability to prosecute a serious charge because of the exclusion of evidence may impact how the public currently views the justice system. However, the court, in this context, is concerned with the long-term impact of maintaining a system of law above reproach, which is particularly challenging in serious cases: Grant, at para. 84.

Balancing the Factors

[82] In assessing the effect of admission of the evidence on the repute of the administration of justice, the court must consider all three lines of inquiry. In so doing, the court must determine, on balance, whether the admission of the evidence derived from a Charter breach would bring the administration of justice into disrepute: Grant, at para. 85. “No overarching rule governs how the balance is to be struck”: Grant, at para. 86. Each case must be considered on its own facts. “The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision”: Harrison, at para. 36.

PRINCIPLES APPLIED

Section 8

[83] Considering the facts known to the police at the time of the arrest collectively, and not individually, and seen through the eyes of a reasonable person who has the same knowledge, training, and experience as Det. Nosella, I find that the grounds are objectively reasonable.

[84] Specifically, although the credibility of Brittany Scott, as the source of information, is problematic, I find the police investigation corroborated her information. This corroboration included, other information that placed Mr. Allen and Mr. Gillespie at an adult establishment on the night Mr. Allen was last seen.

[85] The facts here satisfy the standard of a credibly based probability.

[86] The defence does not challenge any other element of a valid search incident to an arrest. Accordingly, there is no s. 8 violation.

Section 10(b)

[87] I agree with the concession of Crown counsel: the police breached the s. 10(b) implementational duty to Mr. Gillespie by failing to provide him with a reasonable opportunity to exercise his right to counsel.

[88] There were two breaches. The first was the unnecessary delay caused by the cell phone detour of Cst. Medieros. The second was the lengthy and inexplicable delay caused by SPC Hagg in the police detention unit.

Section 24(2)

[89] Section 24(2) provides for an exclusion remedy for Charter violations. Here, the only Charter violations are breaches of s. 10(b) as found above.

[90] There are two s. 24(2) issues: the threshold “obtained in a manner” issue and, if the threshold issue is satisfied, an admissibility assessment involving the three Grant factors.

Threshold

[91] I agree with Crown counsel that there is no causal connection between the seizure and the breaches. The seizure was not tainted by the breaches; indeed, the initial seizure concluded before the breaches.

[92] That, however, does not end the assessment. This requirement is to be analyzed generously. I must and shall consider the entire “chain of events” between the police and Mr. Gillespie on April 14, 2019.

[93] Mr. Gillespie was arrested at 3:30 p.m. and very shortly thereafter invoked his right to counsel. The police detention unit was about five minutes from the scene of the arrest. Yet, it took the police one hour and 30 minutes to make the first telephone call to the lawyer and two hours and 43 minutes before Mr. Gillespie spoke to a lawyer, his first opportunity to exercise his right to counsel.

[94] The police had Mr. Gillespie in their total control this entire time. He originally was arrested for first degree murder. Although a brief on-scene search of the shoulder bag being carried by Mr. Gillespie revealed a cell phone, cash, and assorted controlled substances, the police did not make a drug arrest then. That drug arrest was made at the detention unit shortly before the first lawyer telephone call, almost a full one hour and 30 minutes later, after the police carefully went through the contents of the shoulder bag. Thus, the lawyer telephone call included both the murder and the drug cases.

[95] Analyzing the entire “chain of events”, it is clear, and I find, that the Charter breaches are part of the same transaction or course of conduct, namely the arrest of Mr. Gillespie. The connection here is temporal and contextual. The connection is neither tenuous nor remote.

[96] For these reasons, I find the “obtained in a manner” requirement has been satisfied.

Admissibility

[97] Whether the admission of the evidence seized from Mr. Gillespie would bring the administration of justice into disrepute requires an assessment involving three inquiries: first, the seriousness of the Charter-infringing state conduct; second, the impact of the breach on the Charter-protected interests of Mr. Gillespie; and third, society’s interest in the adjudication of this case on its merits. Each will be reviewed.

1. Seriousness of the Charter-Infringing State Conduct

[98] The delay in terms of time is totally incomprehensible. This delay was on a significant case in a city’s detention unit. The “without delay” requirement is neither new nor particularly onerous. Yet, Mr. Gillespie sat in a holding cell with nothing being done.

[99] I find the total delay and especially the detention unit delay to be very serious. One member of the Windsor Police Service, SPC Hagg, was directly assigned to carry out the right to counsel duties with regard to a recent arrestee on a major case. According to him, he was specifically trained in the implementational duties of the right to counsel. Yet, he flagrantly ignored his duties. Before me, this officer made hollow excuses and lame justifications for his total inaction – for example, it was Sunday and lawyers do not work in their office on Sunday so I cannot call Mr. Lafontaine’s office, I had to find Mr. Lafontaine’s home or his cell number, and I had other duties such as periodic cell checks. I don’t accept any of his excuses and justifications. He knew he had an important obligation to provide Mr. Gillespie with a lawyer call and figuratively ran around in circles. That is totally unacceptable and serious.

[100] The Windsor Police Service itself cannot dodge responsibility. It assigned only one officer, a young officer with only two years experience, to a first-degree murder case. The cell officer was clearly unable to fulfill serious Charter obligations. From the evidence before me, SPC Hagg had no help or supervision. No other officer involved in this case, not the lead investigator, Det. Nosella, nor the arresting officer, Cst. Medeiros, nor the detention unit sergeant, took any time or effort to make sure that SPC Hagg was carrying out his duties under the Charter. SPC Hagg was all alone and he dropped the ball.

[101] To make matters worse, SPC Hagg was not honest with me. In keeping with his pattern of excuses, the cell officer swore that another, a more senior, officer told him to delay the lawyer call. SPC Hagg directly testified that the arresting officer, Cst. Medeiros, came down to the detention unit and spoke to him shortly before he decided to call Mr. Lafontaine’s office number. According to the cell officer, Cst. Medeiros specifically asked him to hold off calling the lawyer because more drug charges would be added. So, according to SPC Hagg, he held off and added more delay for this reason.

[102] Cst. Medeiros, in her sworn evidence before me, testified she did not tell SPC Hagg to delay the lawyer call. According to her, this was a serious murder case and it was not her case. She would never direct anyone to delay a counsel call.

[103] I accept the evidence of Cst. Medeiros. I found her to be forthright and direct. She was not hesitant about admitting her mistake in making the cell phone detour. I cannot say the same things about SPC Hagg. I found him to be evasive. He was not direct. He did not include this claimed request by Cst. Medeiros in any of his contemporaneous notes or reports. He did include it in a supplemental report he made the very morning of his voir dire evidence, two years and five months after the alleged event.

[104] Although Crown counsel submits that I should accept the evidence of Cst. Medeiros over the cell officer, the Crown urges me to assess this discrepancy as a reliability problem and not as a credibility problem. I simply cannot do so. The conflict is stark. The evidence of SPC Hagg is neither vague nor wavering. There is nothing in the record suggesting the cell officer may be mistaken. His evidence is very direct. He says this Cst. Medeiros request happened. Cst. Medeiros says it did not. Both cannot be true. I believe Cst. Medeiros. I do not believe SPC Hagg.

[105] Misleading in-court testimony is a proper and important factor to consider when assessing the seriousness of the breach. Such misconduct by an officer is a serious blow to the integrity of the administration of justice. This is especially true when the testimony is from the officer responsible for implementing the rights seeking to justify delay. This is especially true when the evidence is relevant to the Charter issues being decided.

[106] This very serious breach favours exclusion.

2. Impact of the Charter-Protected Interests of Mr. Gillespie

[107] The interests engaged by the right to counsel are beyond self-incrimination and the freedom of choice and include a recognized lifeline for detained persons. The importance of this “reassurance” interest should not be underestimated: Noel, at para. 160.

[108] Mr. Gillespie, in this case, had experienced a very sudden and violent arrest. The vehicle being driven by Mr. Gillespie was boxed in by multiple police vehicles. A distraction device, a percussion grenade, was deployed. The driver’s window was broken. Mr. Gillespie was forcefully taken from the vehicle and put on the ground. The arresting officer, Cst. Medeiros, characterized the immediate reaction of Mr. Gillespie as surprised and upset. Then Mr. Gillespie waited for almost three hours before talking to counsel.

[109] In the context of this case, I find the impact on the interests of Mr. Gillespie to be significant and favours exclusion.

3. Society’s Interest in an Adjudication on the Merits

[110] The evidence sought to be excluded is physical and reliable. Exclusion of the evidence will end the prosecution of this serious case.

[111] This factor does not favour exclusion.

4. Balancing

[112] I now must consider all three lines of inquiry in assessing the effect on the administration of justice of the admission of this evidence. The ultimate question is whether its admission would bring the administration of justice into disrepute. The exclusion remedy is not intended to punish the police or to reward the accused but rather to protect the long-term repute of the justice system: Grant, at para. 70.

[113] This court is well aware of the impact of excluding the evidence in this drug case – it will end the case. However, this was a clear violation of a long-settled and well-established right. The police knew their obligations and simply failed to execute. Indeed, the police ignored their clear duty. This alone is deeply troubling.

[114] The seriousness of this breach is magnified by the conduct of SPC Hagg. In an apparent effort to justify his continuing delay, this blatant breach of a Charter right, this officer made a false claim that another officer requested a delay. Such conduct undermines the truth-seeking function of the courts and constitutes a serious blow to the integrity of the administration of justice. A court must dissociate itself from such conduct.

[115] I conclude that it would damage the long-term interests of the administration of justice to admit the evidence and thus be seen to condone both the stark indifference of the police to the right to counsel of Mr. Gillespie and the blatant misleading evidence from the officer assigned to implement said right. I conclude that the evidence must be excluded notwithstanding that it will end the prosecution.

CONCLUSION

[116] For the reasons above, I find as follows:

1. The arrest of Joshua Ryan Gillespie on April 14, 2019 for the first-degree murder of Jerome Allen did not violate either ss. 8 or 9 of the Charter.
2. The police failure to give Joshua Ryan Gillespie a reasonable opportunity to consult with counsel violated s. 10(b) of the Charter.
3. The admission of the evidence seized from Joshua Ryan Gillespie incident to his arrest on April 14, 2019 would bring the administration of justice into disrepute pursuant to s. 24(2) of the Charter.

[117] Accordingly, the evidence seized by the police incident to the arrest of Joshua Ryan Gillespie on April 14, 2019 is hereby excluded from this trial.

Original signed by “Justice K.W. Munroe”

Kirk W. Munroe

Justice

Released: Orally and in Writing: December 9, 2021

[^1]: A s. 9 challenge also was raised. Adopting my ruling and reasons on the s. 8 challenge, the s. 9 challenge is dismissed – the detention was not arbitrary. [^2]: I use the title of this officer at the time of the events. Det. Nosella since has become Sgt. Nosella. [^3]: The defence does not challenge the other two conditions for a lawful search incident to an arrest: the search must be incidental to the arrest, and the search must be conducted reasonably. [^4]: 2008 ONCA 85, 231 C.C.C. (3d) 118, at para. 160.