Court File and Parties

COURT FILE NO.: CR-38/21 DATE: 20220407

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – K.A. and A.S.A.

Counsel: Ms. A. Stevenson, for the Crown Ms. D. Lafleur, for K.A., Accused Mr. R. Tomovski, for A.S.A., Accused

HEARD: February 16, 17, 18, March 28, 29, 30, 31, April 1, 2022

Reasons for Decision

Defence Section 10(b) and Section 8 (“Red Boots”) Charter Applications

CONLAN J.

I. Introduction

[1] The two accused persons, J.A. and A.S.A., are charged with serious offences under sections 279.01(1), 286.3(1), 286.4, 279.011, and 286.2(1) of the Criminal Code. The general subject matter of the charges is alleged human trafficking. The accused are to be tried by a court composed of a judge and jury in May 2022.

[2] The accused, J.A., and only J.A., has brought two Charter applications, invoking both section 10(b), right to counsel, and section 8, unreasonable search or seizure. This decision deals with both applications.

II. Analysis

A Brief Summary of the Key Evidence on the Applications

[3] J.A. did not testify on either application.

Officer Joseph Barr (“Barr”)

[4] Shortly before 3:40 p.m. on November 11, 2018, Barr received a report of a human trafficking complaint and a suspect being sought in the vicinity of the Admiral Inn hotel.

[5] At 3:40 p.m., he observed a male who matched the description of the suspect. The male was in a taxi at the Quality Inn, which is quite close to the Admiral Inn.

[6] Barr advised the male that he matched the description of someone who had fled from the police in the area. Barr asked the male for identification. The male answered that he had none. Barr asked the male where he was staying. The male motioned to the Quality Inn hotel. Barr asked the male for his name. The male gave a false name, Ralph Narcisse, date of birth February 20, 1987. According to Barr, the male seemed uncertain about his name.

[7] Barr then asked over the police radio for a more detailed description of the suspect. That more detailed description was given. Barr, still at this time inside his police vehicle, exited and approached the male, still in the taxi. Barr made some further observations of the male.

[8] Believing that the male was the suspect, at 3:43 p.m., Barr placed the male under arrest for human trafficking. The male was handcuffed. Barr read to the male, from his police notebook, his right to counsel and the 1-800 toll free number. Barr made no note of the male’s reply as to whether he understood, but Barr testified that the male understood. Barr asked the male “do you wish to call a lawyer now”? Barr has no note of the male’s reply. Barr then read to the male, from his police notebook, the standard caution. Barr made no note of the male’s reply as to whether he understood, but Barr testified that the male understood.

[9] It is important to note that the lawfulness of the arrest of J.A. is not challenged by the defence. It was conceded by counsel for J.A. that the arrest was a lawful one.

[10] Barr then conducted a pat-down search of the male, incidental to the arrest. He found a wallet with identification in the name of J.A., a cellular telephone, and a lighter. Those items were seized and ultimately turned over by Barr to Officer Prescod. The search was completed at about 3:51 p.m., Barr testified.

[11] It is important to note that the legality of the search of J.A. by Barr is not challenged by the applicant, J.A. It was conceded by counsel for J.A. that the search was a valid one, incidental to the arrest.

[12] There is no dispute that it was J.A. who was arrested by Barr. J.A.’s driver’s licence was from Quebec. His address was in Montreal. He gave a telephone number to Barr, 514-662-3895.

[13] I pause here to note that there is no issue in this case about when J.A. was detained, or if he was detained before he was arrested, or if he should have been given his right to counsel before he was given his right to counsel. The defence proceeded on the basis that the detention was at the point of arrest.

Officer Alanda Prescod (“Prescod”)

[14] Earlier in the day on November 11, 2018, Prescod dealt with J.A. at the Admiral Inn. At some point, Prescod learned that J.A. had left the Admiral Inn, and Prescod started a search for him in the area.

[15] Prescod accessed and watched video surveillance footage of J.A. in the lobby area of the Quality Inn. That video footage was played in Court. It shows J.A. sitting at a table with a cellular telephone. It also shows him standing and walking around a little, and it shows him looking out the windows to the exterior of the front lobby area.

[16] At about 3:45 p.m., Prescod heard over the police radio that Barr had a male in custody at the Quality Inn. Prescod attended at the Quality Inn to assist, arriving at 3:51 p.m. Prescod spoke with Barr, and Barr confirmed that he had given to the male his right to counsel. Thus, Prescod did not read to the male his right to counsel.

[17] Prescod testified that he was aware that J.A. wanted to call a specific lawyer. Prescod testified that he did not know, and he was not told by J.A., that the lawyer’s telephone number was in J.A.’s cellular telephone. In cross-examination by Ms. Lafleur, Prescod denied that it is possible that J.A. told him that the lawyer’s telephone number was in J.A.’s cellular telephone. Prescod stated further that he is sure that J.A. did not say that the lawyer’s telephone number was in J.A.’s cellular telephone. Prescod also told Ms. Lafleur in cross-examination that he did not ask J.A. if the lawyer’s telephone number was in J.A.’s cellular telephone.

[18] At 4:25 p.m., Prescod arrived with J.A. at the police station. Prescod contacted duty counsel. Prescod updated the human trafficking unit about J.A.’s lawyer of choice – Alexander Garac (“Garac”), a lawyer in Quebec, spelling of the name uncertain, and no telephone number – that is what Prescod testified that he knew and what he relayed to the human trafficking unit. Prescod testified that the said information was provided to him by J.A.

[19] Prescod testified that J.A. never waived his right to speak to Garac, but J.A. agreed to speak to duty counsel in the meantime. Prescod testified that he took no steps to contact Garac. Prescod admitted in his testimony that the said failure was a mistake on his part. He admitted that he could have done things to try to contact Garac, such as an internet search. He stated that his failure to do so was an error, and he stated that he would not repeat that mistake in the future.

Officer Julie Powers (“Powers”)

[20] Powers first encountered J.A. at the police station at 8:31 p.m. on the arrest date. Earlier, at 6:24 p.m., she had reviewed the booking sheet, Exhibit 5, and saw that J.A. had spoken with duty counsel. She also saw the name of a lawyer, Garal (surname). There was no indication on Exhibit 5 that J.A. had spoken with Garal.

[21] The reader should note that the lawyer’s actual surname is Garel (not Garac or Garal).

[22] At 8:31 p.m., Powers advised J.A. of the additional charges against him – bringing the counts to nine in total. She asked J.A. about Garal. Powers testified that J.A. was not sure of the spelling of the lawyer’s name. Powers stated that she did a Google search of “Alexander Garal” and found nothing relevant.

[23] At 8:45 p.m., Powers called duty counsel, again, because of the change in J.A.’s jeopardy with the additional charges. Before doing so, she had asked J.A. if he wanted to speak to duty counsel, and he replied in the affirmative.

[24] It was not until about twelve hours later, at 8:45 a.m. the next day, November 12th, that J.A. finally spoke with duty counsel.

[25] Powers testified that J.A. was never interviewed by the police. She stated that another officer did, however, in her presence, ask J.A. for the password to his cellular telephone, and J.A. refused to provide it. That occurred sometime after 8:31 p.m. on November 11th, and sometime after J.A. had indicated that he wanted to speak with duty counsel again, and certainly well before J.A. actually spoke with duty counsel the next morning.

[26] In cross-examination by Ms. Lafleur, Powers admitted that she only recently remembered doing the Google search of “Alexander Garal”. She told Ms. Lafleur that she did not search for “lawyer”. In a courtroom demonstration during the hearing, Ms. Lafleur showed that a search of “Alexander Garal lawyer Quebec” revealed several things including information about a lawyer in Montreal named Alexandre Garel. Powers told Ms. Lafleur that she did not consider contacting the Bar Association in Quebec, nor did she search the online directory for that Association. Another courtroom demonstration showed that searching the said online directory, using “Alexander Garal”, revealed contact details for a criminal lawyer in Montreal named Alexandre Garel.

[27] Ultimately, the police search of J.A.’s cellular telephone was done pursuant to a warrant that was issued on June 17, 2021.

[28] It is important to note that the warrant is not challenged by the applicant, J.A. It was conceded by counsel for J.A. that the search of the cellular telephone was a valid one, under the authority of the warrant.

Video Evidence

[29] Exhibit 1 contains video surveillance clips from the Admiral Inn on November 8, 2018. They show the complainant, the alleged female victim of the accused’s alleged human trafficking, at the hotel, wearing red boots, and accessing two rooms directly across the hallway from each other.

[30] In addition, the audio-video statement of the complainant at the police station, taken after the arrest of J.A. a few days later, shows the complainant wearing what appear to be the same red boots.

Officer Dino Serafini (“Serafini”)

[31] Serafini was one of the initial responding police officers to the complaint of human trafficking at the Admiral Inn. Once there, on November 11, 2018, he learned that the other accused, not J.A., was the renter of two rooms – 265 and 266.

[32] Serafini testified that he knocked on door 265. Another officer, surname Mennie, was with him. Two persons answered the door of room 265. One was J.A., as per his Quebec identification. The other was a female, O.N., also from Quebec. Serafini asked why they were in Ontario. J.A. replied that he drove there in a blue rental vehicle to see his friend, O.N. Serafini asked who booked the room; J.A. replied that it was not him. O.N. stated, repeatedly, that she booked the room (which Serafini knew to be false). Serafini asked if they knew anything about room 266; they both said no.

[33] Serafini then knocked on room 266. A female answered the door. Serafini asked if she was X (he used the first name of the complainant), and she answered yes. She motioned to quickly usher him into the room. She seemed fearful, Serafini told Ms. Lafleur in cross-examination. Both Serafini and Mennie entered room 266.

[34] The complainant spoke very poor English. She said that there were two male pimps, one in the hallway, and that the one in the hallway was named “Demon”. Serafini testified that the complainant would have seen J.A. in the hallway when she opened the door to room 266. It was obvious to Serafini that the complainant was nervous, panicked, and uncomfortable. According to Serafini, the complainant stated that the second pimp was named “Ray”, with blonde tips in his hair.

[35] The police then requested the assistance of a French-speaking officer. The complainant spoke on the telephone with the French-speaking officer, constable Verreault (“Verreault”). Then Serafini spoke with Verreault and learned that the two pimps were taking the complainant’s money, limiting her movements, and preventing her from going home, and that the complainant wanted charges laid and would give a statement to the police.

[36] At 12:40 p.m., Serafini formed grounds to arrest J.A. for human trafficking. He placed the complainant in his police vehicle. As he was doing that, he was told by a taxi driver that a male had jumped from the second-floor balcony of a room and ran away.

[37] Serafini testified that, while he dealt with the complainant, including while they were inside room 266, she kept talking about her red boots. She wanted to find them before they left the Admiral Inn. Serafini learned that the red boots were inside room 265. The red boots, somehow, ended up back in the possession of the complainant. Serafini did not recall, when he testified, whether he or another police officer retrieved the red boots, or who got them, or how they were retrieved. He also could not say what the complainant was wearing on her feet when they left the Admiral Inn.

[38] Serafini transported the complainant to the police station and turned her over to Powers.

[39] Serafini told Mr. Tomovski in cross-examination (before Mr. Tomovski abandoned the application on behalf of his client) that it was not possible that O.N. gave the red boots back to the complainant.

[40] At one point during the cross-examination by Mr. Tomovski, Serafini stated that “I do not recall and I have no notes about the red boots”.

[41] Serafini told Mr. Tomovski that the police never had a key to room 265.

[42] In cross-examination by Ms. Lafleur, Serafini stated that all he could say was that the complainant did get her red boots back; how that happened he cannot say. He does not remember, if he ever knew.

[43] In his occurrence report, Serafini wrote that “red boots were located in room 265 and given back to X (the first name of the complainant)”.

Officer David Mennie (“Mennie”)

[44] Like Prescod and Serafini, Mennie was at the Admiral Inn on the date of J.A.’s arrest. He, too, was aware that rooms 265 and 266 had been rented by the co-accused, not J.A.

[45] According to Mennie, the three officers named immediately above went to room 265 and knocked on the door. A male and a female answered the door. The female stated that she had rented room 265. Both occupants stated that they were not sure who was inside room 266. The two occupants of room 265 were J.A. and O.N., Mennie confirmed in his testimony.

[46] Mennie and Serafini then knocked on the door of room 266. Prescod was not with them any longer. The complainant answered the door and invited the police inside. Because the complainant was speaking French, Mennie requested a French-speaking officer. Mennie spoke with Verreault. Verreault spoke on the telephone with the complainant, in French. Serafini also spoke on the telephone with Verreault. Grounds were then formed to make an arrest for human trafficking.

[47] Prescod arrived at room 266. Mennie and Serafini told Prescod that there were grounds to arrest the male in room 265. The door to room 265 was then closed.

[48] Mennie testified that, while he was dealing with the complainant, she was concerned about her red boots. She wanted them back from the other room, 265. It was the complainant who stated that the red boots were inside room 265. The complainant stayed inside room 266. The three police officers went to room 265. They knocked on the door. O.N. answered the door. She stated that the male had gone to Tim Horton’s. She invited the police inside to see for themselves. The three officers entered room 265 and confirmed that the male was gone.

[49] Mennie testified that, while inside room 265, he saw the red boots. He did not remove them. He did not see another officer remove them.

[50] After leaving the Admiral Inn briefly to search for the male, Mennie returned to the Admiral Inn and spoke with O.N. She told Mennie that the male’s belongings were inside room 265 but that she was leaving the hotel without them. Mennie then requested hotel staff to cancel the key cards for room 265.

[51] In cross-examination by Ms. Lafleur, Mennie stated that, at some point, O.N. verbally gave her telephone number to the police as being 514-566-9513. Mennie did not confirm the accuracy of that by looking at O.N.’s cellular telephone, for example.

Officer Dan Ciardullo (“Ciardullo”)

[52] At the material time, Ciardullo was the supervisor of the human trafficking unit of the investigating police force.

[53] After assembling a team to investigate the complaint of human trafficking at the Admiral Inn, Ciardullo arrived at that hotel at 3:08 p.m. on the date of J.A.’s arrest. He observed in the parking lot a blue Jeep Compass with a Quebec licence plate. He learned over the radio that J.A. was in custody at the nearby Quality Inn.

[54] At 3:58 p.m., the following items seized from J.A. upon arrest were turned over to Ciardullo – a Samsung cellular telephone, a car key with a rental tag attached thereto, with information that appeared to match the Jeep Compass that he observed at the Admiral Inn, and a phone charger. Ciardullo directed that the Jeep be seized.

[55] Ciardullo transported the seized personal items to the police station and secured them in a locker to which he had the only key.

[56] Ciardullo assigned another officer to write applications for search warrants for the two rooms at the Admiral Inn, the Jeep, and the cellular telephones that had been seized from the interested parties, including J.A. The search warrants were all ultimately granted. For the two hotel rooms and the Jeep, the warrants disclosed these items to be searched for – a black handgun, a knife, Canadian currency, and booking sheets and receipts.

[57] Ciardullo and officer Zivkovic executed the search warrants for the two hotel rooms and the Jeep. Videos and photographs were taken. From room 265 the police seized an Apple laptop, a charging cable, a Samsung cellular telephone, and a hotel booking sheet. An exhibit list was prepared. Nothing was seized from room 266. From the Jeep the police seized two cellular telephones from the centre console area.

[58] In cross-examination by Ms. Lafleur, it was suggested to Ciardullo that a red object shown in a photo of the trunk of the Jeep is a boot or boots like the ones worn by the complainant. Ciardullo did not agree with that suggestion.

[59] Ciardullo stated to Ms. Lafleur that he has no notes of searching the garbage in room 266, although it appears from the photos that there was some trash in the garbage can. The police normally would search the garbage for evidence, like condoms for example, he stated.

[60] Ciardullo testified in cross-examination that, at the time, the Admiral Inn was a well-known location to the police, regularly used for prostitution and human trafficking activity.

Defence Evidence

[61] Ms. Lafleur filed J.A.’s Recognizance of Bail as Exhibit 4 on the section 8 “red boots” Charter application, showing his Saint-Jerome Quebec address.

[62] The defence also called Powers to provide further evidence on the “red boots” application.

[63] Powers confirmed that the complainant was wearing red boots during the formal interview of her at the police station. Powers confirmed further that 514-662-3895 was the telephone number given to the police, verbally, by J.A.

[64] Powers testified that there is a telephone number identified in the text messages that form part of the Crown’s case, 705-242-6975, including a message from that number to the complainant, that Powers has no subscriber information for.

[65] In terms of J.A.’s relationship with the two rooms at the Admiral Inn, Powers testified that video surveillance from November 8, 2018 shows the complainant enter room 266 and the co-accused enter room 265. Video from November 9th shows J.A. enter room 265. Videos from November 8th, 9th, and 11th show J.A. enter room 265 with a key. Between November 8 and 11, 2018, she believes that J.A. was staying at the Admiral Inn and was occupying room 265. Both rooms were in the name of the co-accused. Powers agreed with Ms. Lafleur that J.A. and the co-accused clearly knew each other. The check-in at the Admiral Inn was on November 8th, and the arrest of J.A. was on November 11th, and the check-out was on November 12th, Powers confirmed.

[66] The Crown played a video clip of the check-in process at the Admiral Inn; only the co-accused is shown in the video. The Crown also played video from November 8th, showing the hallway and the co-accused and the complainant exit room 265, the complainant then enter room 266, and the co-accused pick up a bag on the floor of the hallway and then return to room 265.

[67] The proximity of the two hotel rooms is clearly evident from that video from November 8th – they are very, very close to each other – directly across a fairly narrow hallway.

[68] Powers told the Crown that the number for the cellular telephone seized from J.A. and searched under warrant by the police was 514-582-3400, which is different than the number that was given verbally by J.A. to the police, 514-662-3895.

The Position of the Applicant, J.A., on the Section 10(b) Charter Claim

[69] Ms. Lafleur submitted that two items ought to be excluded under section 24(2) of the Charter – (i) the alleged pre-arrest utterance made by J.A. to Barr, specifically the false name and date of birth, and (ii) the cellular telephone seized from J.A. by Barr, post-arrest, and its content.

[70] It was submitted by Ms. Lafleur that each of the following gives rise to a section 10(b) Charter violation: (i) Barr’s failure to facilitate J.A.’s right to counsel at the arrest scene by failing to allow J.A. the opportunity to contact his counsel of choice by using J.A.’s cellular telephone, and (ii) Barr unreasonably delaying the implementation of J.A.’s right to counsel by keeping J.A. at the arrest scene rather than transporting him right away, himself, to the police station, and (iii) Prescod’s failure to facilitate the right to counsel by giving J.A. the chance to use his own cellular telephone to contact J.A.’s counsel of choice, and (iv) the booking officer’s failure to make adequate enquiries about Garac/Garal and whether J.A. wanted to contact that lawyer of choice, and (v) Powers’ failure to facilitate the right to counsel by not doing more to find Garal before contacting duty counsel at 8:45 p.m., and (vi) the twelve-hour elapsed time between 8:45 p.m. on the date of arrest and 8:44 a.m. the next morning when J.A. finally spoke with duty counsel, without any follow-up during those twelve hours by any police officer.

[71] The sixth item referred to above was made worse, Ms. Lafleur submitted, because officer Zivkovic failed to hold-off questioning J.A. when he asked him for the password to his cellular telephone.

[72] On the issue of the relevance of J.A.’s cellular telephone to the facilitation of his right to counsel by the police, Ms. Lafleur relies upon the decision of the Court of Appeal of Quebec in R. v. Tremblay, 2021 QCCA 24.

[73] In terms of the wording of section 24(2) of the Charter itself, specifically the words “evidence…obtained in a manner”, Ms. Lafleur argues that all of these violations of section 10(b) were part of the same transaction, and she cites the authority of the Court of Appeal for Ontario in R. v. Pino, 2016 ONCA 389.

[74] On the Grant factors, under section 24(2), Ms. Lafleur argues that each of the three of them favours exclusion of the evidence – the seriousness of the violation(s), the impact on the Charter-protected interests of J.A., and society’s interest in the adjudication of the charges on their merits. On the third factor, Ms. Lafleur argues that the exclusion of this evidence would in no way be fatal to the case for the prosecution.

The Position of the Crown on the Section 10(b) Charter Claim

[75] The Crown concedes a section 10(b) Charter violation, but not to the extent submitted on behalf of J.A.

[76] Ms. Stevenson acknowledged that there was a failure by the police to take reasonable steps to provide a reasonable opportunity for J.A. to contact his counsel of choice. Both Prescod and Powers should have done more. And the police, between 8:45 p.m. on the date of arrest and 8:44 a.m. the next morning, should have followed-up on the duty counsel issue. Otherwise, the remainder of the defence arguments should be dismissed, submitted Ms. Stevenson.

[77] On section 24(2) of the Charter, the Crown argued that there is no causal connection here between any section 10(b) violation and the evidence sought to be excluded.

[78] On the Grant factors relevant to the section 24(2) Charter analysis, the Crown argued that the first factor, seriousness of the violation, points “moderately” towards exclusion of the evidence, while the other two factors, impact on the accused and society’s interest in adjudicating the charges on their merits, point heavily towards admission of the evidence.

[79] After taking this Court to numerous authorities to support the submissions made, Ms. Stevenson concluded by arguing that the evidence under attack here is reliable, powerful, important, and highly incriminating and, thus, the overall balancing exercise must result in its admission at trial.

[80] In addition to the text-messages content of J.A.’s cellular telephone, summarized at Exhibit 4 and on CaseLines at page Master B449, the cellular telephone also includes photographs that the Crown argued are inculpatory, some showing J.A. and the complainant, and others showing J.A. and his co-accused, and others showing J.A. with stacks of money, as examples only.

The Position of the Applicant, J.A., on the Section 8 (“Red Boots”) Charter Claim

[81] I must confess that I still do not fully appreciate the significance of these red boots, but that will be for the trier of fact to determine. I am told that they may be relevant to the credibility of the complainant and/or to the issue of her alleged control at the hands of J.A.

[82] In any event, J.A. wants the red boots excluded from the evidence at trial.

[83] In closing submissions, in answering questions from the Court, Ms. Lafleur, quite responsibly, made some concessions: (i) there is no direct evidence that the police took the red boots from room 265, and the argument of the applicant depends upon a finding that the police entered room 265 without a warrant and seized the boots, and (ii) if the complainant did not have the red boots on when she spoke with the police inside room 266, that the police went and got them from room 265 is not the only inference that could be drawn from the proven facts. Other possible inferences could be that the complainant got the boots herself or that O.N. gave the boots to the complainant, as two examples.

[84] Ms. Lafleur submitted, however, that the only reasonable inference to be drawn is that the police got the boots from room 265.

[85] When this Court asked about a reasonable expectation of privacy, Ms. Lafleur submitted that J.A. has established standing through the theory of the Crown, the video surveillance (especially that showing J.A. with a key to access room 265), and the Jeep at the Admiral Inn with the key and rental tag therefor having been seized from J.A. upon his arrest.

[86] This was a warrantless search, argued Ms. Lafleur. And there was no urgency. There is a section 8 Charter violation, it was submitted. Under section 24(2), the violation is very serious

[87] and invites exclusion of the evidence; in fact, the police should be found to have acted in bad faith and lied in their testimony at Court, Ms. Lafleur argued. There was a major impact on J.A. because a hotel room is “sacrosanct”, argued Ms. Lafleur. Finally, the third factor, society’s interest in an adjudication of the charges on their merits, is, at best for the Crown, neutral. These red boots are not pivotal evidence for the prosecution, stated Ms. Lafleur.

The Position of the Crown on the Section 8 (“Red Boots”) Charter Claim

[88] On standing, the Crown submitted that J.A. had no reasonable expectation of privacy regarding room 265. He was not present at the time of the police entry, and he had no control or occupation of the unit at that time, and no ownership, and limited historical use, and no ability to regulate access, and perhaps a subjective expectation of privacy based only on the Crown’s theory of the case, while the objective reasonableness of that expectation has not been established. The Crown relies upon the decision of the Supreme Court of Canada in R. v. Edwards, [1996] 1 SCR 128.

[89] The Crown stresses that J.A. fled the scene and, in doing so, abandoned room 265 and any interest that he may have had in it.

[90] Further, there was no search or seizure, the Crown argued, in addition to the question of standing.

[91] Finally, Ms. Stevenson submitted that, under section 24(2), all three Grant factors point towards admission of the evidence. Any violation was trivial. There was no impact on J.A.’s Charter-protected interests. The charges are very serious, and this evidence, while not crucial, is relevant to corroborate what the complainant told her mother (that her boots had been taken from her) and to the issue of control, which is part of human trafficking.

This Court’s Ruling on the Section 10(b) Charter Claim

[92] As decisions by judges are written primarily for the benefit of the unsuccessful side, I will address each of the arguments advanced by Ms. Lafleur.

[93] Ms. Lafleur submitted that two items ought to be excluded under section 24(2) of the Charter – (i) the alleged pre-arrest utterance made by J.A. to Barr, specifically the false name and date of birth, and (ii) the cellular telephone seized from J.A. by Barr, post-arrest, and its content. I respectfully disagree.

[94] It was submitted by Ms. Lafleur that each of the following gives rise to a section 10(b) Charter violation: (i) Barr’s failure to facilitate J.A.’s right to counsel at the arrest scene by failing to allow J.A. the opportunity to contact his counsel of choice by using J.A.’s cellular telephone, and (ii) Barr unreasonably delaying the implementation of J.A.’s right to counsel by keeping J.A. at the arrest scene rather than transporting him right away, himself, to the police station, and (iii) Prescod’s failure to facilitate the right to counsel by giving J.A. the chance to use his own cellular telephone to contact J.A.’s counsel of choice, and (iv) the booking officer’s failure to make adequate enquiries about Garac/Garal and whether J.A. wanted to contact that lawyer of choice, and (v) Powers’ failure to facilitate the right to counsel by not doing more to find Garal before contacting duty counsel at 8:45 p.m., and (vi) the twelve-hour elapsed time between 8:45 p.m. on the date of arrest and 8:44 a.m. the next morning when J.A. finally spoke with duty counsel, without any follow-up during those twelve hours by any police officer.

[95] The sixth item referred to above was made worse, Ms. Lafleur submitted, because officer Zivkovic failed to hold-off questioning J.A. when he asked him for the password to his cellular telephone.

[96] I respectfully disagree with the position advanced by Ms. Lafleur. Regarding items (i), (ii), (iii), and (iv) delineated above, I find that none of those constitutes a violation of J.A.’s right to counsel. Regarding items (v) and (vi), I agree with Ms. Lafleur that each constitutes a violation of J.A.’s right to counsel, and I find that the violation relating to item (vi) includes a failure of the police to hold-off questioning J.A. pending his consultation with counsel – the request that J.A. provide his password for the cellular telephone was improper. Finally, I find that the violation relating to item (v) is more serious because it followed Prescod’s similar infringement of J.A.’s right to counsel by doing virtually nothing to put J.A. into contact with his expressed counsel of choice.

[97] Items (i) and (iii) relate to J.A.’s cellular telephone and its connection to the police obligation to facilitate his right to contact his counsel of choice. I take no issue with the Court of Appeal of Quebec’s decision in Tremblay, supra, that “the presence of a cell phone is not, in and of itself, a circumstance forcing police officers to allow it to be used to communicate with counsel…[n]evertheless, it is a circumstance that must be taken into account when answering this question”, that is the question of “when the ‘first reasonably available opportunity’ arises” (paragraph 50). In my view, that is all that can be taken from Tremblay, supra, for our purposes here.

[98] The facts in Tremblay, supra were completely different than ours, however. That was a drinking and driving case, where the phone had absolutely nothing to do with the alleged offence. In our case, the phone and its content are inextricably linked to the alleged offence that J.A. was arrested on, human trafficking. It is evidence. Further, the suspect in the Quebec case was found to have made an explicit request to use her own cell phone to call a lawyer that she knew, right away. There is no evidence before this Court that J.A. made a similar request, or any request at all, to use his phone when he was with Barr and/or Prescod. There is also no evidence before this Court that J.A. told either Barr or Prescod that his phone contained the telephone number for his counsel of choice, if in fact his phone did contain that information.

[99] I accept the proposition that there may be circumstances where the police have a duty to consider allowing the suspect to use his/her own cellular telephone to contact counsel before arriving at the police station, but not on our facts. That duty, if it exists theoretically, did not arise here. There was no violation.

[100] Regarding item (ii), the alleged failure of Barr to transport J.A. himself to the police station right away, I reject that argument by the defence. I accept Barr’s evidence that the search of J.A. was completed at about 3:51 p.m. I accept the evidence of Prescod that he arrived at the Quality Inn at 3:51 p.m. He took over the custody of J.A. very, very shortly thereafter. There was no violation, even without resort to the authorities advanced by the Crown, which I agree stand for the proposition that a brief suspension of the implementation of the right to counsel, between the scene of the arrest and the police station, is permissible, depending on the circumstances – R. v. Pileggi, 2021 ONCA 4, at paragraphs 75 through 78.

[101] Just as the detainee in Pileggi, supra would have had no privacy in consulting with counsel immediately, at the scene, the same could be said for J.A., who was arrested in a hotel parking lot. I agree with the Crown that there is no general duty of the police to facilitate the right to counsel immediately, regardless of the circumstances, and regardless of whether there is a controlled environment for that facilitation to properly occur. In that regard, I agree with the following comments of Justice Healey at paragraphs 64 through 70 of the decision in R. v. Lawson, 2017 ONSC 6807, where Her Honour addresses the question of whether there was a breach of section 10(b) when the police (here, Barr) did not provide the arrestee (here, J.A.) with immediate access to duty counsel (here, counsel of choice) upon his request, at the roadside (here, in the hotel parking lot).

[64] The governing principles were set out by Abella, J. on behalf of the Court in Taylor, at para. 24, as follows:

The duty to inform a detained person of his or her right to counsel arises "immediately" upon arrest or detention (Suberu, at paras. 41-42), and the duty to facilitate access to a lawyer, in turn, 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 (R. v. Luong (2000), 2000 ABCA 301, 271 A.R. 368, at para. 12 (C.A.)). Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.

[65] The question arises as to whether the roadside, in the context of this type of arrest or detention, typically affords the first reasonably available opportunity. There is a line of authorities suggesting otherwise. In R. v. Devries, 2009 ONCA 477, 95 O.R. (3d) 721, at para. 30, Doherty J.A. stated:

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

[66] The Supreme Court of Canada in Taylor has made clear that a police officer is not obliged to provide his or her own cell phone to a detainee: para. 27. Also, in R. v. Nelson, 2010 ABCA 349, 490 A.R. 271, at para. 17, the Court stated: "People are not always arrested in locations where it is possible for police to implement access to counsel.... Immediacy does not mean instantaneous; practical considerations still play a role, particularly with respect to the police's obligation to implement an arrested person's contact with counsel."

[67] In a decision of this court, Di Luca, J. in R. v. Wu, 2017 ONSC 1003, 35 C.R. (7th) 101, at para. 78, reviewed case law delineating general guiding principles that may justify a delay or suspension of the right to counsel. Scenarios in which there are practical considerations such as a lack of privacy or an arrest at a location that has no telephone access may justify delay.

[68] The rationale provided by the police for not facilitating a telephone call to counsel at the roadside was that it was not practicable for a number of reasons. These included: 1) they had seized Mr. Lawson’s cell phone; 2) there was no ability for privacy, as protocol required that once the in-car camera had been turned on, it must not be turned off; 3) they were on Kipling Avenue, which was already becoming busier at that time in the morning, as indicated by the fact that DC Pleskina had to move cars off the roadway shortly after his arrest of Mr. Lawson; and 4) protocol dictates that those calls are made at the station in the room designed for the safety of the detainee and officers. These are all sound reasons why facilitating a telephone call at the roadside, in the circumstances of this case, was not reasonable during the period in question. To this I would comment that defence counsel’s scenario of having the police place the call to the hotline on Mr. Lawson’s phone, waiting for the call to be returned, un-cuffing Mr. Lawson so that he could physically hold the phone to his ear, returning Mr. Lawson’s cell phone to him whenever the call from the lawyer came in, and then giving him the necessary privacy for the call, is an unreasonable plan. There are multiple ways for this to have “gone wrong” at the roadside. Although he was completely compliant with the arrest, I note that the evidence given by him during his interview is that Mr. Lawson was 6’3” tall and weighed 200 lbs at the time. Beyond the initial arrest, the police had no way of knowing how he might react if given the chance to resist or flee. In the location of a major street, safety concerns for Mr. Lawson, the police and civilians would reasonably be heightened.

[69] The same conclusion was reached by Charney, J. in R. v. W.L., 2016 ONSC 5141, 364 C.R.R. (2d) 107, a case in which the applicant complained that the police should have permitted him to use his cell phone to call his own lawyer as soon as he was arrested at 4:18 p.m., rather than making him wait until he got to the police station almost two hours later. As in this case, the police detectives testified that they did not permit the applicant to contact his own lawyer on his own cell phone either at the scene of the arrest or in the police cruiser because these were not areas where private conversation could be held. At para. 46 Charney J. concluded that it was reasonable for the police to wait until they arrived at the police station to comply with the implementational duty to contact counsel.

[70] I agree with defence counsel that the need for “immediate” legal advice is tied to the issue of “holding off”, and the need to minimize the risk that a person will self-incriminate. These are principles that are without debate, as outlined in Bartle, Taylor and R. v. Hebert, [1990] 2 SCR 151. Nonetheless, the implementational duty must still be looked at contextually, and it is my view that the circumstances giving rise to the pre-station delay in this case do not amount to a breach of s. 10(b).

[102] Regarding item (iv), the role of the booking officer at the police station, I agree with the Crown that there was no violation. This argument was not pressed by Ms. Lafleur. This Court heard no testimony from the officer in question, and no testimony from J.A., and thus their interactions are only gleaned from a review of the booking sheet, Exhibit 5. That shows that J.A. stated that he wanted to speak with both duty counsel and his lawyer of choice. As being none of the arresting officer, the transporting officer, the officer-in-charge, or the officer who was to contact counsel on behalf of J.A. at the police station, I find that the booking officer had no duty to do anything else regarding J.A.’s right to counsel.

[103] In terms of item (v), I find that there was a clear violation of J.A.’s right to counsel. Both Prescod and Powers ought to have done significantly more to put J.A. into contact with his expressed lawyer of choice. The Crown was wise to concede that violation.

[104] Regarding item (vi), again, I find that there was a clear violation of J.A.’s right to counsel. Sitting around and doing nothing to enquire about a lengthy delay, which delay ended up extending to twelve hours in duration, in duty counsel calling back to speak to the detainee is unacceptable, in my view.

[105] I respectfully disagree with the Crown that Powers was not constitutionally required to provide J.A. with a second consultation with duty counsel. In R. v. Tahmasebi, 2020 ONCA 47.at paragraph 21, the law in this area was very neatly summarized by the Court of Appeal for Ontario.

[21] In Sinclair, the majority described three situations in which a second consultation with counsel would be constitutionally required. The first is where, after the initial consultation, non-routine procedures are proposed by the police (such as participating in a line-up or submitting to a polygraph) that do not generally fall within the expectation of the advising lawyer at the time of the initial consultation: at para. 50. The second is where, after an initial consultation "tailored to the situation as the detainee and his lawyer then understand it" based on what they were told as to the reasons for the detention, "the investigation takes a new and more serious turn" making the advice inadequate in light of "the actual situation, or jeopardy, the detainee faces": at para. 51. The third is where the circumstances indicate that the detainee did not understand his right to counsel, or if police undermined the legal advice received by the detainee "distorting or nullifying it": at para. 52. In each such situation a further opportunity to consult with counsel is necessary to fulfill the purpose of s. 10(b): at para. 49.

[106] In my view, the best evidence of whether J.A.’s state of jeopardy materially changed, and whether the investigation took a new and more serious turn, is that of the officer-in-charge, Powers. I accept her evidence that, in her mind, there was a change in jeopardy that necessitated her asking J.A. if he wanted to speak with duty counsel, again. She knew what the additional charges were, as she had just advised J.A. of those new charges that he was facing. Although this Court is not bound to agree with Powers on what is essentially a legal determination, her evidence makes total sense to me.

[107] Further, I respectfully disagree with the Crown and find that officer Zivkovic failed to hold-off questioning J.A. in a way that also amounted to a violation of his section 10(b) Charter right. It matters not that it was a simple request for J.A.’s password for the cellular telephone, which request was denied by J.A.

[108] “The police obligation to ‘hold off’ questioning detainees who have requested a consultation with counsel is firmly established law of long-standing”. R. v. Hamilton, 2017 ONCA 179.

[109] The Crown’s reliance on Pileggi, supra is, with respect, misplaced. In that case, the Court of Appeal for Ontario held that the trial judge erred in not finding a violation of section 10(b) based on the failure to hold-off, even though the accused declined to answer the police officer’s question (as here) and even though the matter could fairly be viewed as being “fleeting and inconsequential”, an observation more properly considered under section 24(2). Pileggi, supra, at paragraphs 73-74.

[110] In summary, the police violated J.A.’s right to counsel. They did not do enough to facilitate J.A.’s expressed wish to speak with his counsel of choice. They did not do anything to ensure that he spoke with duty counsel, relatively promptly, after being advised of the many additional charges against him. And they failed to hold-off questioning J.A. pending that further consultation with duty counsel.

[111] With respect to section 24(2) of the Charter, I find that none of the challenged evidence ought to be excluded. In fact, I find that exclusion of the evidence, not its admission, would bring the administration of justice into disrepute.

[112] In terms of the wording of section 24(2) of the Charter itself, specifically the words “evidence…obtained in a manner”, I respectfully disagree with Ms. Lafleur that the Pino, supra decision supports her argument about the alleged pre-arrest utterance by J.A. to Barr, namely the false name and the date of birth.

[113] That utterance to Barr was in no way obtained in a manner that violated J.A.’s right to counsel. The right to counsel was not violated at all during Barr’s involvement with J.A. The violations that did occur, starting with Prescod not doing enough to put J.A. into contact with his expressed counsel of choice, have no causal connection to the utterance, at all. And no contextual connection to the utterance, at all. There is, I suppose, a temporal connection, but it is tenuous to say the least. Pino, supra, at paragraph 71.

[114] The alleged utterance is admissible, without even having to consider the Grant factors.

[115] The cellular telephone and its content, I accept, gets over the hurdle of the “obtained in a manner” requirement. The connection between the challenged evidence and the violations is weak but not so tenuous or so remote as to be an obstacle to getting to the Grant analysis, especially when this Court looks at it in the generous approach directed by Justice Laskin in Pino, supra.

[116] On the Grant analysis, however, it is not a close-call. I strongly disagree with the position advanced on behalf of J.A.

[117] The seriousness of the violations factor points heavily in favour of excluding this evidence. There was no bad faith by the police, but there were multiple violations of section 10(b) by multiple officers, all on well-settled points of law.

[118] On the second factor, there was absolutely no impact on the Charter-protected interests of the accused. Not just little impact. None. The pat-down search by Barr was lawful. The seizure of the phone from J.A. was lawful. The subsequent search of the phone under warrant was lawful. Clearly, the phone would have been seized and later searched and the content extracted regardless of the violations.

[119] The second factor points heavily in favour of admitting the evidence, which is probably why Ms. Lafleur, capable counsel, struggled mightily to articulate any argument related to this factor. She simply repeated, over and over, that the violations were serious.

[120] The third factor also points heavily in favour of admitting the evidence. The phone and its content are real evidence. The charges against J.A. are extremely serious. Society has a very high interest in having these charges tried on their merits, and the content extracted from J.A.’s cellular telephone is highly incriminating and highly important to the case for the prosecution.

[121] The text messages extracted from J.A.’s cellular telephone include comments, allegedly between him and his co-accused, talking about finding another girl from Valleyfield, broke and with no home; and a girl being worth $1000.00 instead of $2000.00 because she’s fatter; and requests for pictures of girls; and a reference to something called “cum on body” or COB service, which service a “ho” and a “bitch” might do; and references to “hotel” and “pimp”; and threats to find and kill a girl; and references to hotel room numbers; and references to money; and references to specific hotels; and a remark about giving permission for a girl to eat; and so on.

[122] The experience of reviewing the texts, which I have done, is, frankly, disgusting.

[123] In the overall balancing exercise, to exclude the cellular telephone evidence would shock the conscience of any reasonably-minded member of the community, even one who fully appreciates the fundamental importance of Charter values. The evidence must be admitted.

This Court’s Ruling on the Section 8 (“Red Boots”) Charter Claim

[124] I find that there is no violation of section 8. As the determination is not close, I say respectfully, I see no need to conduct a section 24(2) analysis. I will do so, however, albeit briefly, for the benefit of the Court of Appeal.

[125] There is no violation because (i) J.A. has no standing to make the claim, and (ii) this Court cannot find as a fact that the police searched for or seized the red boots inside room 265 at the Admiral Inn.

[126] The best that the defence can point to on either of those two issues is the evidence of Powers that she believes that J.A. was staying at the Admiral Inn and occupying room 265, which evidence is relevant to standing, and the evidence of Serafini that he put in his occurrence report, “red boots were located in room 265 and given back to X (the first name of the complainant)”.

[127] The key to a reasonable expectation of privacy, however, is control. Not occupancy. We know that from Edwards, supra.

[128] At the time that the police officers entered room 265, at the invitation of O.N. to confirm that the male was no longer there, J.A. had no control over that unit. Clearly, he had fled. We know that he fled from what Serafini was told by the taxi driver – nobody jumps from a second-floor balcony and runs away unless he is fleeing the scene and effectively abandoning any interest that he may have previously had in the premises.

[129] Ms. Lafleur did not argue this in her submissions, but perhaps this Court should place no weight on that evidence from Serafini because it is hearsay. That is not the only evidence of flight, however.

[130] There is also the real evidence of the video surveillance footage from the lobby area of the Quality Inn. I have watched, and re-watched, the video. Why is J.A. even there, when he is staying at the Admiral Inn? He is obviously hiding out. He has no other possible purpose for being there. Why is he looking outside, through the windows, repeatedly? He is obviously watching for the police. There is no other reasonable inference to be drawn.

[131] I agree completely with the Crown’s position on standing - J.A. had no reasonable expectation of privacy regarding room 265, at least not when the police entered the room at the invitation of O.N. He was not present at the time of the police entry, and he had no control or occupation of the unit at that time, and no ownership, and limited historical use, and no ability to regulate access, and perhaps a subjective expectation of privacy based only on the Crown’s theory of the case, while the objective reasonableness of that expectation has not been established.

[132] Even if I am wrong on the issue of standing, the “red boots” application must fail because this Court cannot reliably find as a fact that there was any police search for or seizure of the boots. Without a search or seizure, there can be no infringement of section 8 based on an unreasonable search or seizure.

[133] I disagree with Ms. Lafleur that the only reasonable inference to be drawn is that the police went to room 265 to retrieve the red boots, at the behest, express or implied, of the complainant. It is equally reasonable to infer that the complainant got the boots back herself. It is also equally reasonable to infer that O.N., who we know was there and was occupying room 265, gave the boots back to the complainant.

[134] On the latter, I recognize that Serafini told Mr. Tomovski that it was not possible that O.N. did that. I do not accept that evidence. How is it not possible? No explanation was given by Serafini or anyone else.

[135] I also recognize the text message highlighted by Ms. Lafleur, allegedly from O.N. to J.A., saying that the police went into the room and took the boots. With respect, quite apart from the hearsay nature of that evidence (the Court did not hear from either O.N. or J.A.), there is no evidence before this Court that the said message was in fact from O.N.

[136] Even if I am wrong on both standing and on whether there was a search or seizure of the boots by the police, and assuming that the Crown cannot rebut the presumption that the warrantless search of room 265 was unreasonable and in violation of section 8, I would not exclude the red boots from the evidence at trial.

[137] The violation I would describe as being minor, trivial, and fleeting. The seriousness factor points strongly in favour of admission. There is no basis to find bad faith and/or deceitful or untrue testimony on the part of the police.

[138] The impact on J.A. I would describe as being minimal. The police entered his hotel room, very briefly, to fetch someone else’s personal property, and then they left, all while he was not there. The second factor points strongly in favour of admission.

[139] The third factor also points in favour of admission. I do not see the evidence as being that important to the case for the prosecution, but even so these are extremely serious charges, and the red boots are real evidence.

[140] On the overall balancing exercise, I must confess that I do not know how a judge would even articulate, in words, why this evidence if admitted would bring the administration of justice into disrepute. With respect, to be blunt, I think a ruling of exclusion would leave someone wondering, even a well-informed someone, what in the world are you talking about?

III. Conclusion

[141] Both applications by J.A. are dismissed.

[142] Unless it is excluded on some other basis, the evidence challenged by J.A. is admissible at the trial of the accused. That evidence is the false name and the date of birth allegedly uttered by J.A. to Barr, and the cellular telephone seized from J.A. upon his arrest, including its content, and the red boots.

Conlan J. Released: April 7, 2022