COURT FILE NO.: CR-21-0100-00

DATE: 2022-06-22

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

A. Sadler, for the Crown

• and -

RASHAWN SAMUELS

J. Addelman, for the Accused

Accused

HEARD: Via Zoom April 11-14, 19 and May 20, 2022, at Thunder Bay, Ontario

Mr. Justice W. D. Newton

Reasons on Application

Overview

1On September 2, 2020, Rashawn Samuels was arrested for drug trafficking.

2His vehicle was searched pursuant to a warrant and a loaded Glock 9 mm handgun with 15 rounds in a high capacity magazine with a round in the chamber was found in the vehicle. He was charged with eight firearms related offences. He has pleaded not guilty to these charges. His trial began with an application to exclude the handgun on the basis that several of his Charter rights had been violated: s. 8 – the right to be secure against unreasonable search and seizure; s. 9 – the right to be free from arbitrary detention and arrest; and s. 10(b) – right to retain and instruct counsel without delay.

3The s. 9 argument is that there were no grounds to arrest Mr. Samuels. The s. 10(b) argument is that his right to retain and instruct counsel was delayed without cause. The s. 8 argument is that he was unnecessarily strip-searched.

4For the reasons that follow, I conclude that Mr. Samuels' s. 8 and s. 9 rights were not breached. While I conclude that his 10(b) rights were violated, the Grant¹ factors balance in favour of not excluding the evidence. Accordingly, the application is dismissed.

5This matter is remanded to Assignment Court June 27, 2022, at 1:30 PM to set a date for continuation of the trial.

The Facts

Grounds for Arrest

6Mr. Samuels was arrested in the parking lot of a local hotel at just before 2:00 PM on September 2, 2020.

7Detective Constable Veal was the lead investigator and the deponent of the affidavit seeking authorization for search warrants for Mr. Samuels' vehicle, hotel room, and an apartment at 302 – 515 Gore Street West (the "apartment). The items to be searched for and seized were controlled substances and associated drug trafficking items.

8Detective Constable Veal testified that he had information that led him to believe that Mr. Samuels was involved in drug trafficking at the apartment since approximately January 2020. Mr. Samuels' identity and involvement with drug trafficking at that apartment was confirmed by information obtained from multiple confidential informants. Officers also conducted surveillance of Mr. Samuels and the apartment in July and September 2020. The surveillance in September 2020 began with a tip from an informant that Mr. Samuels was back in Thunder Bay. Detective Constable Veal observed Mr. Samuels driving the vehicle to be searched to the apartment location.

9On September 2, 2020, officers determined the Mr. Samuels' vehicle was parked in a hotel parking lot and learned that a known associate of his had rented a hotel room.

10Detective Constable Veal testified that the police intended to apply for a search warrant for the apartment and that, by September 1, he had the majority of his affidavit for the search warrant application completed. However, the police did not want to execute the search warrant while Mr. Samuels might be present in the apartment given Mr. Samuels' criminal record which included multiple convictions for violence and weapon offences, as well as armed robbery using a restricted firearm. Detective Constable Veal, therefore, decided that Mr. Samuels would be arrested prior to executing the search warrant at the apartment. Otherwise, he testified, they would require the presence of the Emergency Task Unit for officer safety when the search warrant was executed.

11Mr. Samuels was arrested as he approached his vehicle in the hotel parking lot and charged with possession for the purpose of trafficking and possession of proceeds of crime. He had with him $2,555 in cash, the keys to his vehicle and the hotel room and two cell phones. His companion, Ms. Miller, was located in the hotel room and arrested and charged with the same offences. Both were transported to the police station.

12Detective Constable Veal also returned to the station and completed the warrant requests at approximately 4:30 PM. The approved warrants were received two hours later. The hotel room was searched about 10 minutes after that, the apartment at about 8:00 PM and the vehicle at about 9:45 PM.

13The officers who searched the apartment found 49.9 grams of crack cocaine, a digital scale and $12,026 in cash. Three persons found in the apartment were arrested. It was suspected that others fled through a window but no-one else was apprehended.

Delay of Right to Counsel

14When arrested, Mr. Samuels insisted upon exercising his right to counsel immediately. He continued to insist on his right to counsel vigorously as the booking room surveillance video confirms.

15Detective Constable Veal determined that Mr. Samuels would not be allowed to exercise his right to counsel until the search warrant at the apartment was executed. The reason given was that the leak of information that Mr. Samuels had been arrested would compromise the investigation by tipping off the occupants of the apartment that a search was imminent. The concern was that a lawyer might notify others of Mr. Samuels' arrest. Detective Constable Veal did not authorize that Mr. Samuels and Ms. Miller could contact counsel until approximately 8:30 PM, six hours after they were arrested. However, Mr. Samuels was not able to exercise his right to counsel until about 11:30 PM that evening as he was at the hospital being assessed.

16Mr. Samuels first attempted to contact someone other than a lawyer. That call was halted, and a call later placed to a person that the police could verify was a lawyer.

17Other officers testified that delaying the right to counsel was a rare or very infrequent occurrence but may occur when there was a concern that an investigation could be compromised.

The Strip Search

18The booking room surveillance video shows the interactions with Mr. Samuels and officers leading to the strip search.

19Mr. Samuels collapsed to the floor while talking with officers. He was unresponsive for a few minutes. EMS was called. He mentioned that he had touched fentanyl. He was wearing multiple layers of clothing: long underwear, basketball shorts, and track pants.

20In the circumstances, the watch commander authorized a strip-search. Nothing was located.

21Although Mr. Samuels was taken to the hospital no evidence was presented with respect to any injury or the reason for his collapse.

Analysis

The Arrest

22Counsel agree that the onus is on Mr. Samuels to show that his detention was unlawful. Counsel also agree that a fair synopsis of the law on this issue was summarized by Hill J. in R. v. Amare.² Counsel disagree on the application of the law to these facts with Mr. Samuels arguing that reasonable and probable grounds did not exist and the Crown arguing that the totality of circumstances met the standard of a reasonable probability.

23The police had information from five confidential informants. Some identified Mr. Samuels as "Sammy" from photographs. All five informants connected "Sammy" to drug activity at the apartment thus providing cross–corroboration. The confidential informant information together with the surveillance observations of Mr. Samuels in Thunder Bay amounted to reasonable and probable grounds to arrest Mr. Samuels for drug trafficking. Accordingly, I find that Mr. Samuels' s. 9 Charter rights were not violated.

The Strip Search

24The onus is on the Crown to establish that the strip search was necessary and conducted in a Charter compliant manner.³

25Given that Mr. Samuels was a suspected drug trafficker, had collapsed, mentioned touching fentanyl, and was wearing multiple layers of clothing, I am satisfied that the police did have reasonable and probable grounds for concluding that a strip search was necessary. It was reasonable to assume that the collapse could be related to contamination with drugs in close contact with his body. I find that the search was conducted for Mr. Samuels' safety. The manner in which the search was conducted was compliant with the factors set out in Pilon.

Delay in Right to Counsel

26Two Court of Appeal decisions give helpful guidance in considering this case: R. v. Rover⁴ and R. v. Keshavarz.⁵ Keshavarz was released two days after the completion of argument in this case and counsel re-attended to make additional submissions on the application of Keshavarz to this case.

27Mr. Samuels argues that his circumstances are very similar to those of Mr. Rover because the delay in implementation of his right to counsel was a result of a policy of delaying the right to counsel pending obtaining and executing warrants and a practice of preferring police convenience over the Charter rights of arrested persons.

28The Crown argues the delay in implementing the right to counsel was not as a result of a policy but a specific decision in this case to prevent the occupants of the apartment from learning in advance of the search.

29In Rover, Doherty J. found that following a practice that routinely prevented arrested persons from accessing counsel pending the obtaining of a search warrant was a very serious breach of the Charter right to counsel. He noted:

[33] In my view, to fall within the exception to the requirement that an arrested person be allowed to speak to counsel without delay, the police must actually turn their mind to the specific circumstances of the case, and they must have reasonable grounds to justify the delay. The justification may be premised on the risk of the destruction of evidence, public safety, police safety, or some other urgent or dangerous circumstance. Furthermore, if the police determine that some delay in allowing an arrested person to speak to counsel is justified to permit execution of the warrant, then they must consider whether it is necessary to arrest the individual before they execute the warrant. The police cannot create a justification for delaying access to counsel by choosing, for reasons of convenience or efficiency, to arrest an individual before seeking, obtaining and executing a search warrant. Police efficiency and convenience cannot justify delaying an arrested person's right to speak with counsel for several hours.

30In Keshavarz, Fairburn A.C.J.O. confirmed that, armed with case-specific evidence, the police can delay the implementation of right to counsel but only for as long as necessary to address the concerns giving rise to the need to suspend the right to counsel. One hour too long is a Charter breach. In that case, the decision to suspend the right to counsel was based on multiple factors and "real concerns for officer and public safety, as well as the preservation of evidence".⁶ That case was a case involving firearms. There is no indication in this case that firearms would be found at the apartment.

31I conclude that delaying the right to counsel was not a routine practice for the police service. I was satisfied from the testimony that this was a rare or very infrequent occurrence, only implemented when there were safety concerns or risk that an investigation would be compromised.

32However, I conclude that priority was given, in this case, to police convenience rather than Mr. Samuels' Charter rights. The decision to arrest Mr. Samuels prior to attempting to execute the search warrant was a sound and reasonable decision based on his history of violence with firearms. But grounds for the search warrant existed prior to Mr. Samuels arrest and the search warrant for the apartment could have been obtained prior to arresting Mr. Samuels. As Doherty J. noted in Rover:

The police cannot create a justification for delaying access to counsel by choosing, for reasons of convenience or efficiency, to arrest an individual before seeking, obtaining and exiting a search warrant.⁷

33Further, there was no case specific evidence for delay in the implementation of the right to counsel except a general concern that information may be leaked. I distinguish Keshavarz from this case as Mr. Keshavarz was arrested in the act of a firearm transaction. There was no plan, as there was in this case, to arrest and then obtained a search warrant.

34I conclude that Mr. Samuels' right to counsel was unreasonably breached.

24(2) Analysis

35Once evidence has been obtained in connection with the breach of one or more of the rights guaranteed by the Charter, the court must decide whether to admit or exclude the evidence at trial.

36Mr. Samuels argues that a proper weighing of the Grant factors should result in a conclusion that admission of the evidence would cause a reasonable member of the public to lose confidence in the justice system.

37The Crown argues that the 10(b) breach was not serious as it was a good faith decision permitted in appropriate circumstances by existing case law. The Crown notes that the search of the vehicle was pursuant to a judicially authorized search warrant that has not been challenged and, therefore, there is no nexus between any breach and the discovery of the firearm. The Crown argues that the societal interest in adjudication on the merits is substantial since a loaded firearm was seized from a motor vehicle. The Grant factors favour admission of the evidence according to the Crown.

38To obtain an order excluding the evidence, an accused must satisfy, on a balance of probabilities, the two requirements of s. 24(2) of the Charter:

24(2) Where, in proceedings under subsection (1), 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.

39The phrase "obtained in a manner" has been the subject of much judicial consideration. A causal connection between the breach and the evidence sought to be excluded is not required. As Laskin J.A. noted in R. v. Pino:⁸

[72] Based on the case law, the following considerations should guide a court's approach to the "obtained in a manner" requirement in s. 24(2):

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;

but the connection cannot be either too tenuous or too remote.

40The second branch of the s. 24(2) inquiry calls on a trial judge to assess whether the admission of the evidence sought to be excluded would bring the administration of justice into disrepute. In making that assessment, the trial judge must take account of and balance the three factors stipulated by the Supreme Court in R. v. Grant⁹:

"the seriousness of the Charter-infringing state conduct";

the impact of the breach or breaches on the Charter-protected interests of the accused; and

"society's interest in the adjudication of the case on its merits."

41In Pino the court found that the police breached Ms. Pino's Charter rights in three ways: one breach of s. 8, two breaches of s. 10(b), and two officers lied to the court.

42Having found breaches of the right to counsel in Rover and Keshavarz, those courts came to different conclusions on the s. 24(2) analysis.

43In Rover, there was no causal connection between the discovery of the evidence and the s. 10(b) breach, but there was a close temporal connection.

44As Doherty J noted:

The exclusionary rule in s. 24(2) operates on the assumption that the routine admission of constitutionally tainted evidence must have a long-term negative effect on the repute of the] administration of criminal justice.¹⁰

45He also noted that "breaches that are the direct result of the systemic or institutional police practices must render the police conduct more serious for the purposes of the s. 24(2) analysis"¹¹ and concluded that this was a case "in which the long-term repute of the administration of justice requires the sacrifice of the short-term benefit of an adjudication on the merits..."¹².

46In Keshavarz, the court did not exclude the evidence, firearms.

47Although there was no evidence of a systemic problem Keshavarz, like there was in Rover, and no pattern of Charter misconduct, the Court found that the 10(b) breach was serious.¹³ However, the Court found no causal connection between the breach and the discovery of the firearms and noted it "is entirely "appropriate" to consider the lack of a causal connection in calibrating the seriousness under the second stage of the Grant analysis".¹⁴ Observing that trafficking in firearms is a very serious offence, the Court noted that the public has a "heightened interest in seeing a determination on the merits where the offence charged is serious."¹⁵

48Finding that the seriousness of the breach favoured exclusion, the impact of the breach on the accused's rights "neutral at best" and the society's interest in adjudication on the merits strong, the balancing favoured admitting the evidence in Keshavarz.

49In this case the breach was serious. It was not, however, unlike Rover, a breach that was the direct result of systemic police practices.

50The search of the vehicle was authorized by a validly obtained warrant that was not challenged. There is no causal connection between the delay of implementation of the right to counsel and the search of the vehicle. Therefore, the impact of the breach on Mr. Samuels' Charter rights is, as in Keshavarz, neutral at best.

51Finally, the prevalence and use of firearms in the drug trade is a very serious problem. Society has a "heightened" interest in the adjudication of a case on its merits when the offence charged is serious, as in this case.

52The final balancing leads me to conclude that the evidence should not be excluded. The admission of evidence of a loaded handgun, with a high capacity magazine, found in a vehicle pursuant to the execution of a search warrant would not, on balance in these circumstances, bring the administration of justice into disrepute.

53The application is dismissed.

Footnotes

1. 1R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32 [Grant].
2. 22014 ONSC 4149 at para. 83.
3. 3R. v. Pilon, 2018 ONCA 959 at para. 13 – 20 [Pilon].
4. 4R. v. Rover, 2018 ONCA 745 [Rover].
5. 5R. v. Keshavarz, 2022 ONCA 312 [Keshavarz].
6. 6Keshavarz, at para. 79-81.
7. 7Rover, at para. 33.
8. 8R. v. Pino, 2016 ONCA 389 [Pino].
9. 9Grant, at para. 71.
10. 10Rover, at para. 36.
11. 11Rover, at para. 40.
12. 12Rover, at para. 49.
13. 13Keshavarz, at para. 107, 108 & 110.
14. 14Keshavarz, at para. 115.
15. 15Keshavarz, at para. 118.