COURT FILE NO.: CR-21-720-00 DATE: 2022-07-18

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

DENNISON LACROIX Applicant / Accused

Counsel: E. Taggart, for the Crown L. Jajou and J. Vamadevan, Counsel for Mr. Lacroix / Accused

HEARD: April 25-29, 2022

REASONS FOR JUDGMENT ON PRE-TRIAL CHARTER APPLICATION TO EXCLUDE EVIDENCE OBTAINED FOLLOWING EXECUTION OF SEARCH WARRANT and RULING ON ADMISSILTY OF STATEMENT

RESTRICTION ON PUBLICATION Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

L. Shaw J.

Introduction

[1] The applicant, Dennison Lacroix, was arrested on April 3, 2018, and charged with possession of cocaine for the purpose of trafficking. His trial is scheduled to begin on July 18, 2022.

[2] On April 3, 2018, police searched 1019 Elizabeth Place, Oakville, Ontario (the “residence”), and a blue Lexus, bearing Ontario license plate CDLB012 (the “vehicle”) pursuant to a search warrant for a firearm and ammunition. Neither was found in either the residence or vehicle. However, while executing the search warrant of the vehicle, the police found cocaine and drug paraphernalia. Mr. Lacroix was arrested and charged before the drugs were found in the vehicle.

[3] The search warrant was based on an Information to Obtain Search Warrant (“ITO”) that relied primarily on information provided by a confidential informant (“CI”). The ITO disclosed to the defence was heavily redacted to protect the identity of the CI.

[4] By way of this pre-trial application, heard by me as case management judge, Mr. Lacroix seeks to exclude the evidence seized by police following the execution of the search warrant. More specifically, Mr. Lacroix submits:

• The ITO fails to provide a sufficient basis upon which the issuing justice could have issued the warrant;
• The warrant was dependent on a CI, whose information was not credible, compelling, or corroborated, and thus did not meet the criteria as set out in R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140 (the “Debot criteria”);
• Because the search warrant was improperly authorized, the search conducted by police violated Mr. Lacroix’s s. 8 Charter right to be free from unreasonable search and seizure;
• There was a breach of Mr. Lacroix’s s. 10(b) Charter right to counsel, given the delay in implementing that right;
• As a result of the ss. 8 and 10(b) Charter breaches, the evidence seized should be excluded under s. 24(2) of the Charter.

[5] The Crown conceded that the redacted ITO could not support the warrant, and applied, under what is known as “step six” from R v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, to have me consider the content of the unredacted portion of the ITO in relation to this Charter challenge, which the Crown says demonstrates that the warrant was properly issued. The Crown argues that the search warrants were properly issued, and that Mr. Lacroix has not established a s. 8 violation.

[6] The Crown also brought an application for a finding that the statement made by Mr. Lacroix at the police station on April 3, 2018, was voluntary. The defence argues it was not, as it was prompted by police inducements.

[7] The Crown properly concedes that there was a breach of Mr. Lacroix’s 10(b) Charter rights to counsel, as there was a delay in implementing his right to speak to counsel, but says the evidence seized from the vehicle and the statement should not be excluded under s. 24(2).

[8] In addition to factums filed by the Defence and Crown, the unredacted ITO, and the judicial summary, I also heard viva voce evidence from three police officers on this application. The defence did not call any evidence. This was the evidentiary record upon which my findings are based.

[9] For the reasons that follow, I have determined that the search warrant was properly issued with respect to the vehicle. As a result, the search of Mr. Lacroix’s vehicle and seizure of cocaine was not in violation of s. 8 of the Charter. I have also determined that the search warrant for the residence could not have been granted by the issuing justice and thus the residence was improperly searched. While there was no evidence seized at the residence, I have considered this breach in determining whether the evidence found in the vehicle should be excluded pursuant to s. 24(2) of the Charter.

[10] The delay in implementing Mr. Lacroix’s right to counsel was not the result of an isolated error made by the police. Rather, based on the evidence, I find that the delay in facilitating access to counsel was the result of the systemic nature of the police conduct. As a result, the evidence seized in the vehicle and the statement given by Mr. Lacroix must be excluded pursuant to s. 24(2).

Procedure

[11] The following process was adopted for this application, in accordance with the steps set out in Garofoli.

[12] The ITO disclosed to the defence was redacted by the Crown to protect the CI’s identity. Prior to the hearing before me, the Crown provided Mr. Lacroix with a Crown summary of the redactions of the ITO in Appendix “C” and “D”. Exhibit “C” is the affidavit of Cst. Houlihan, who also testified on this voir dire. Exhibit “D” set out the details of the information provide by the CI. The defence did not seek leave to cross-examine Cst. Houlihan on his affidavit.

[13] Mr. Lacroix requested a judicial review of the Crown summary and to be provided with a judicial summary of the Crown redactions to the ITO.

[14] I was provided with and reviewed both an unredacted and redacted version of the ITO that was entered into evidence as a sealed exhibit on the application.

[15] I entered an in-camera hearing with the Crown to discuss whether any further information could be disclosed without risking disclosure of the identity of the CI. I also heard evidence form Cst. McAuley, the handler of the CI, who answered questions I had with respect to some of the edits.

[16] It was my view that further information could be provided to Mr. Lacroix. Accordingly, following the in-camera discussion, a “Judicial Summary of Redacted Portions” was provided to Mr. Lacroix, and marked as an exhibit.

[17] After receiving the “Judicial Summary”, counsel for Mr. Lacroix made further submissions regarding the redactions. Following those submissions, I held another in camera discussion with the Crown resulting in some further revisions to the redactions. I provided oral reasons during the in-camera hearing regarding the redactions.

[18] I then heard submissions from both counsel and provided oral reasons finding that Mr. Lacroix is sufficiently aware of the nature of the excised material in the ITO to challenge it either facially or sub-facially.

Background

[19] In the first quarter of 2018, a CI told Peel Regional Police (“PRP”) that a man known as “AB” was in possession of a firearm. This person drove a newer model blue Lexus. He was described by the CI as black, with short black hair, about 6 feet tall and 30 years of age. The CI was shown a PRP mugshot taken in 2013 and the CI identified Mr. Lacroix as “AB”. The CI provided information about the firearm.

[20] Surveillance of Mr. Lacroix was conducted over a period of three days on March 23, March 31, and April 2, 2018. On those dates, Mr. Lacroix was observed driving the vehicle. On April 2, 2018, Mr. Lacroix was seen entering and leaving the residence and driving the vehicle.

[21] On April 2, 2018, police conducted several investigative checks which led Cst. Houlihan to form the opinion that a firearm would be found in either the residence or vehicle as Mr. Lacroix lived at the residence and was in possession of the vehicle.

[22] On April 2, 2018, PRP applied for search warrants for the vehicle and residence. That application was rejected.

[23] The following day, on April 3, 2018, PRP again applied for search warrants for the vehicle and residence which were granted and signed at 4:29 pm. Appendix “A” to the warrants authorized PRP to search for a firearm and ammunition.

[24] On April 3, 2018, at 3:01 pm, Mr. Lacroix was followed from the residence in the vehicle to a mall. At 5:31 pm, he arrived at a residence in Mississauga and then drove away. At 5:43 pm, after the search warrants were obtained, PRP tactical unit conducted a high risk take-down of Mr. Lacroix at gunpoint while he was operating the vehicle.

[25] Between 5:43 pm and 5:45 pm, Cst. Cranley arrested Mr. Lacroix for unlawful possession of a firearm and informed his of his right to counsel. Cst. Cranley recorded in his notebook that Mr. Lacroix’s response was: “Lawyer – Don’t think I need a lawyer.”

[26] At 6:02 pm, Cst. Cranley turned Mr. Lacroix over to Cst. Danek for transport to the police station. Cst. Danek reread Mr. Lacroix his rights to counsel. Mr. Lacroix said he wished to speak to a lawyer. Cst. Danek told Mr. Lacroix that he would have an opportunity to speak to a lawyer after the search warrant was executed.

[27] Cst. Danek left the arrest scene with Mr. Lacroix at 6:03 pm and arrived at 11 division at 6:09 pm. Mr. Lacroix was transferred to the cells officer who lodged him in a holding cell. That ended Cst. Danek’s involvement with the matter.

[28] At 7:09 pm, the tactical unit from PRP entered the residence to execute the search warrant. A firearm was not found, and the residence was cleared at 8:10 pm.

[29] At 8:25 pm, Constable Houlihan returned to 11 division where he, or the cells officer, took steps to put Mr. Lacroix in touch with duty counsel. Duty counsel was called at 8:57 pm but was not immediately available. Duty counsel called back at 9:08 pm and Mr. Lacroix was placed in a private room with the phone at 9:10 pm - over three hours after his arrest by Cst. Cranley.

[30] The vehicle was transported to the police station to be searched. The search began and at 8:40 pm three scales and 105.8 grams of cocaine was found concealed behind the driver’s door panel. Three phones were also found in the vehicle. The search ended at 9:16 pm. No firearm was found.

[31] Cst. Houlihan began to interview Mr. Lacroix at 9:25 pm and he informed Mr. Lacroix that he was now being charged with possession of cocaine for the purpose of trafficking and reread him his right to counsel. Initially, Mr. Lacroix did not exercise that right, but partway through the interview asked to speak to a lawyer; Cst. Houlihan refused his request. The Crown is not seeking to rely on any portion of the statement after that refusal.

[32] At 11:00 pm, Mr. Lacroix was released from custody with a promise to appear.

Relevant legal principles

Search Warrants

[33] Section 8 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, protects an individual against unreasonable search and seizure.

[34] The principles governing challenges to a search warrant are well-established and not in dispute between the parties. A starting point in a review is that the warrant is presumptively valid: R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30. Mr. Lacroix bears the burden of demonstrating, on a balance of probabilities, that the warrant was not validly issued: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 83. To be valid, the issuing justice must have been satisfied that there were reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the place to be searched: Sadikov, at para. 81. “Reasonable and probable grounds”, in this context, means a "credibly based probability”: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para 66. It is more than a suspicion or hunch, but less than proof on a balance of probabilities: Sadikov, at para. 81.

[35] A reviewing judge does not stand in the place of the issuing justice. This is not a de novo hearing, and I must not substitute my own view for that of the justice of the peace who issued the warrant. Rather, as reviewing judge, I must determine whether there was sufficient credible and reliable evidence to permit the issuing justice to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40. The test for review is whether, on the face of the information disclosed to the issuing justice, that justice could have issued the warrant: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para 51; Garofoli, at p. 1452.

[36] When the core of the ITO rests on information provided by a CI, the issuing court must assess the credibility and reliability of the information provided by the CI. This involves asking the three questions as set out in Debot: Is the information compelling? Is the informer credible? Was the information corroborated?

[37] In R. v. Greaves-Bissesarsingh, 2014 ONSC 4900, 314 C.C.C. (3d) 493, Code J. clarified the meaning of these terms at para. 35 as follows:

It appears from Wilson J.'s reasons in Debot, and from the subsequent jurisprudence, that the term "compelling" refers to considerations that relate to the reliability of the informer's tip such as the degree of detail provided and the informer's means of knowledge, that is, whether the informer made first-hand observations or merely relied on second-hand hearsay, rumour, or gossip. The term "credibility" would appear to capture considerations such as the informer's motivation, criminal antecedents, and any past history of providing reliable information to the police. The term "corroboration" refers to supporting information uncovered by the police investigation.

[38] In R. v. Shivrattan, 2017 ONCA 23, 346 C.C.C. (3d) 299, Doherty J.A. described the three Debot criteria as follows:

The first question addresses the quality of the CI’s information. For example, did he purport to have first-hand knowledge of events or was he reporting what he had been told by others? The second question examines the CI’s credibility. For example, does he have a long record which includes crimes of dishonest, or does he have a motive to falsely implicate the target of the search? The third question looks to the existence and quality of information independent of the CI that offers some assurance that the CI provided accurate information. The answers to each of the questions are considered as a whole in determining whether the warrant was properly issued in the totality of the circumstances. For example, particularly strong corroboration may overcome apparent weaknesses in the CI’s credibility: see Crevier, at paras. 107-1908.

Voluntariness

[39] Any statement given by an accused to a person in authority is presumptively inadmissible. The Crown has the onus of establishing, beyond a reasonable doubt, that the statement was given voluntarily. The leading cases in this area are R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, and R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405.

[40] In the Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015) David Paciocco (writing extrajudicially) and Lee Stuesser, described the proposition of Oickle as follows:

the Crown must establish beyond a reasonable doubt in light of all of the circumstances that the will of the accused to choose whether to speak has not been over borne by inducements, oppressive circumstances or the lack of an operating mind. In addition, there must not be police trickery that unfairly denies the accused’s right to silence.

[41] This inquiry focuses on overbearing police tactics, such as depriving an accused of food, water, and clothing. Under those inhumane conditions, someone might confess to escape such conditions. Similarly, the court considers if the accused had an operating mind capable of appreciating the consequences of their actions at the time the statement was made: Oickle, at para. 60.

[42] In assessing voluntariness, all relevant circumstances or “the entire context” must be examined: Oickle, at para. 54.

[43] This analysis requires the court to balance the accused’s rights without unduly limiting societies need to investigate and solve crime: Oickle, at para. 33. The police must be free to use legitimate means to convince a suspect to make a statement that may incriminate them. If there is evidence of police inducements, the court considers whether these, and other circumstances, lead to a reasonable doubt about whether the will of the subject was overborne: Oickle, at para 57.

Analysis

The Debot Criteria

[44] The question before me is whether the issuing justice could have found that the content of the ITO and the reasonable inferences that could be taken from it, gave rise to a credibly based probability that a firearm would be found at either the residence or in the vehicle. A common sense and holistic approach is to be taken to answer that question: R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721, at para. 59.

[45] Central to answering this question is the strength of the CI’s information which is evaluated using the three Debot criteria.

[46] The defence argues that the information provided in the ITO and Appendix “D” fails to provide an adequate basis upon with the issuing court could conclude that the Debot criteria have been satisfied.

[47] The Crown argues that the criteria have been met, but concedes that corroboration was minimal. This is made up for, however, on the strength of the quality of the CI’s information and the CI’s credibility.

[48] I will go through each factor.

Was the CI information credible?

[49] In R. v. Campbell, [2014] O.J. No. 6541 (S.C.), at paras. 83 and 88, McMahon J. set out a non-exhaustive list of factors that are relevant to the credibility of a CI:

1. Has the informant provided reliable or unreliable information to the police in the past?
2. Does the informant have a criminal record?
3. Is the informant facing any outstanding criminal charges?
4. If the informant does have a criminal record are there crimes for dishonesty?
5. What was the informant's motivation for providing the information? Does it include:
   1. Animus against the target.
   2. Wishing to trade in information, real or imagined or fabricated, to obtain a benefit in relation to their own criminal charges.
   3. Remuneration, in effect, selling information or fabricated information for compensation; or,
   4. On occasions informants indicate they are providing their information out of a sense of duty to the community, or for reasons of their moral conscience.
6. Does the informant have a vested interest in the outcome or a motive to fabricate the information?

[50] In the vetted and disclosed portion of the ITO, Cst. Houlihan deposed that the CI provided information about a male in possession of a firearm in the first quarter of 2018. The CI was registered with the Peel Regional Police Service and provided information on other occasions that proved to be very accurate and reliable. It led to more than one instance of drugs and/or firearms and/or Canadian currency being seized, and Criminal Code charges being laid. This supports the CI’s credibility.

[51] It was also disclosed that the CI was providing information for consideration and was advised that no benefit would be provided should the information turn out to be misleading or false. Thus, while this is not a CI who provided information out of a sense of duty, any consideration to be provided is conditional on the accuracy of that information. This supports the CI’s credibility.

[52] There are also factors that raise concern about the CI’s credibility. The ITO disclosed that the CI was engaged in a criminal lifestyle and has a criminal record. While the nature of the charges was redacted to preserve the CI’s anonymity, Mr. Lacroix was able to make submissions in the alternative with respect to whether those convictions involve crimes of dishonesty. Furthermore, whether the CI has any outstanding charges was also redacted for similar reasons. Again, Mr. Lacroix was able to make submissions in the alternative.

[53] The CI’s criminal record and being active in a criminal lifestyle suggests a lack of credibility. However, given the proven reliability of the CI based on the accuracy of prior information provided to the police and the fact that the CI was aware that the consideration was conditional on the accuracy of the current information provided to the police, there was evidence before the justice of the peace from which they could conclude that the CI was a reliable source of information.

Was the CI information compelling?

[54] In assessing if the information is compelling, the court is to consider if the CI is providing first-hand information, as opposed to hearsay, gossip, or rumour. The information will also be found to be compelling if it is specific and precise, as opposed to information that is common knowledge and likely known to many. Furthermore, more recent information will be more compelling than more dated or stale information.

[55] Although the vetted and redacted ITO did not disclose the source of the information, the defence was able to make submissions in the alternative about whether it was first-hand, second-hand, or knowledge without knowing its source.

[56] The redacted ITO indicated that the information provided by the CI was current as it was provided in the first quarter of 2018. The CI provided information that he knew a male as “AB” who was in possession of a firearm within the last 90 days. This male drove a newer model greyish blue Lexus. Phone numbers for AB were provided. The CI provided a description of the male and then identified Mr. Lacroix from a PRP mugshot taken in 2013.

[57] The defence argues that the information was not compelling as the CI did not provide the police with the accused’s real name or correct age. The CI did not state how long he knew Mr. Lacroix or how he knew him. The CI did not provide any licence plate information regarding the vehicle driven by Mr. Lacroix or any personal information about Mr. Lacroix.

[58] I am mindful that I have viewed the unredacted ITO and Appendix D. Without revealing information that might identify the CI, I am satisfied that the nature of the information provided is compelling given its source and as it is specific and recent information.

Was the CI information corroborated?

[59] Corroboration of the information means whether the police investigated and corroborated any of the information provided by the CI.

[60] Not every piece of information provided by the CI needs to be confirmed. When the offence involves possession of a firearm and ammunition, confirming details provided by the CI presents some challenges. The criminality itself did not need to be confirmed. The Court of Appeal held in Herta, at para. 38:

There is no rule that says that the information relating to criminality itself has to be confirmed. Indeed, it is often impossible for the police to obtain such confirmatory information about the "very criminality" of what the CI has witnessed or knows. As noted in Rocha, at para. 22, the police do not have to confirm a tip to the "extent of having observed commission of the offence" as that level of confirmation is rarely possible.

[Citations omitted]

[61] The police undertook some investigation to corroborate the information provided by the CI. This included surveillance on March 23, 31, and April 2, 2018, and various record checks.

[62] On March 23, 2018, the vehicle was observed parked in front of 120 Acorn Place in Mississauga. At 5:12 pm, Mr. Lacroix was observed entering the vehicle. He drove to a Toys R Us store where he picked up an unidentified male. Surveillance was discontinued shortly thereafter. No criminal conduct was observed.

[63] On March 31, 2018, at 5:20 pm, police conducted checks near 116 Hollingsworth Circle, Brampton, which was the last registered address on Mr. Lacroix’s driver’s licence. Mr. Lacroix was not seen. At 7:54 pm, PRP located Mr. Lacroix at 11 Northwood Drive in Brampton. He entered the vehicle and was then followed to various areas in Brampton and Mississauga. Surveillance was discontinued at 11:21 pm. No criminal activity was observed.

[64] On April 2, 2018, PRP conducted surveillance near the residence. The vehicle was seen parked in the driveway. At 4:42 pm, Mr. Lacroix was observed exiting the front door of the residence and then returning. Shortly after, Mr. Lacroix was seen returning to the car and driving away. He was followed to Mississauga where surveillance was discontinued at 5:52 pm. No criminal activity was observed.

[65] As part of its investigation, PRP did several record checks. Through that, it was confirmed that Mr. Lacroix had criminal convictions from July 18, 2002, for forcible entry, assault with a weapon, and disguise with intent. As a result of that conviction, Mr. Lacroix was prohibited from owning or possessing a firearm. It was also learned that Mr. Lacroix did not have a firearm’s license, nor any firearm registered to him, and that Mr. Lacroix had a nickname listed with PRP as “Chiny”.

[66] A further search revealed that Mr. Lacroix’s driver’s licence listed his address as 116 Hollingsworth Circle, Brampton as of October 28, 2013. Cst. Houlihan swore that it was his belief that Mr. Lacroix may have lived there at one time but had not updated his address to reflect his current residence.

[67] There were two domestic disturbance calls involving Mr. Lacroix and his former girlfriend from 120 Acorn Place; one in 2015 and one in 2017. No charges were laid. Police noted following each incident that Mr. Lacroix was transient in nature, and they were unable to speak to him. He was also investigated and charged with possession of drugs believed to be marijuana and cocaine in 2013. The charges were withdrawn.

[68] A search of the licence plate for the vehicle revealed that it was owned by Lori Fredericksen and registered to the residence. A record check for Ms. Fredericksen confirmed that she lived at the residence.

[69] Cst. Houlihan deposed in the ITO that based on the information received from the CI, the surveillance, and investigative checks conducted by PRP, a reasonable person would be led to believe that the information provided by the CI was accurate and that Mr. Lacroix was operating and in sole possession of the vehicle and was residing with the registered owner of the vehicle, Ms. Fredericksen, at the residence. He also asserted that based on this information, a firearm would be located at the residence or in the vehicle.

[70] The Crown properly concedes that while there was some corroboration of the information from the CI, it was relatively minimal but argues that the strength of the information and credibility of the CI makes up for the weakness in corroboration.

[71] I agree that the degree of corroboration of the CI’s information is not significant. However, when I consider the compelling nature of the information provided by the CI and the CI’s credibility, I find that the information provided an adequate basis upon with the justice of the peace could be satisfied that there were reasonable and probable grounds to believe that Mr. Lacroix was in possession of a firearm. I am also satisfied that the ITO and Appendix “C” and “D” provided a basis upon with the issuing justice could have been satisfied that Mr. Lacroix had a firearm in his possession when driving the vehicle. would

[72] The more difficult issue is whether the ITO provided a basis upon with the issuing justice could be satisfied that the firearm be in the residence.

Search Warrant for the Residence

[73] As noted, two search warrants were obtained based on one ITO – one for the vehicle and one for the residence.

[74] To be clear, no evidence was found at the residence. Nonetheless, Mr. Lacroix argues that the search warrant for the residence was improperly issued and, therefore, his s. 8 rights were breached in that regard. He argues that this is a factor to consider in the 24(2) analyses.

[75] The reason Cst. Houlihan sought a warrant to search the residence was based on his belief that Mr. Lacroix lived at the residence and that Mr. Lacroix would carry the firearm with him into his residence. There was no information from the CI connecting Mr. Lacroix to the specific residence.

[76] In para 4 of Appendix “C”, Cst. Houlihan swore that he believed that Mr. Lacroix lived at the residence. The surveillance showed Mr. Lacroix attending at the residence on one day of the three that Mr. Lacroix was observed. The only investigation that connected Mr. Lacroix to the residence was that Mr. Lacroix was seen driving a vehicle owned by the same person who lived at the residence and the vehicle was registered to that address.

[77] Investigation also revealed that Mr. Lacroix’s address on his driver’s licence was different than the residence. To explain why he believed that Mr. Lacroix lived at the residence and not at the address listed for his driver’s licence, Cst. Houlihan stated as follows in para. 19(f) of Appendix “C”:

Although Dennison Lacroix’s driver’s licence associated to him reflect that he lives at 116 Hollingsworth Drive in Brampton Ontario, I know from my time as an experienced investigator that people who engage in criminal activity will often have a registered address for drivers’ licences to reflect that of a different location than where they actually reside to elude police investigation. This belief by myself is furthered by the previous two interactions listed by Peel Police as noted above where they were unable to locate or speak with Lacroix and he is listed of being no fixed address.

[78] He concluded at para. 20 that, based on his experience as an investigator, and the surveillance conducted and information provided, the only logical place for Mr. Lacroix to keep the firearm would be inside the vehicle or “his residence at 1019 Elizabeth place, Oakville Ontario”. He also stated at para. 17, that as firearms are usually carried for protection, it would only be reasonable that Mr. Lacroix always kept the firearm on or near him.

[79] He also responded to the reason why the initial ITO was rejected on April 2, 2018. The issuing justice rejected that application as Mr. Lacroix was described as transient with no fixed address and thus the information did not prove that he lived at the residence, and that there were no grounds for the search warrant for the vehicle based on the same reasons.

[80] In response to that rejection, Cst Houlihan explained as follows:

I have referenced Dennison Lacroix as being of “No Fixed Address” and transient in nature as it is my experience as a police officer that individuals involved in criminal activity, specifically firearms and serious drug offences will not update their address with the Ministry of Transportation in Ontario and Local Police Services. I am of the opinion that this is what is transpiring here, and that Lacroix had simply not changed or updated any addresses with Police or the MTO.

[81] He then referred to the surveillance that showed Mr. Lacroix driving the car owned by the person who lived at the residence. Cst. Houlihan opined that Mr. Lacroix was using her car and lived at her address. He then stated that it was his opinion, based on his experience as a police officer, that individuals involved in criminal activity commonly “utilize other individual’s addresses in order to live and store items at again in order to evade police detection and distance themselves form said illegal items at these locations”.

[82] The defence argues that given the lack of information from the CI about Mr. Lacroix’s address and the limited corroboration, there was no sufficient credible and reliable evidence to permit the issuing justice to find reasonable and probable grounds that a firearm would be found at the residence.

[83] The defence relies on Herta, where the court found that the ITO did not contain information sufficient to establish a connection between the firearm and a residence. The Court of Appeal found that the only information that could support the reasonable grounds to believe that the firearm was at the address was that the CI said that the accused was in a dispute and would not go anywhere without his firearm. At para. 51, Fairburn J.A. (as she then was) found that if that was the case, the accused would become a walking, ready-made grounds for belief if a search warrant could be issued for any address where the accused was seen entering.

[84] The Court of Appeal recently clarified Herta in R. v. Kalonji, 2022 ONCA 415. In Kalonji, the court heard an appeal from a trial judge’s decision to quash a search warrant on the basis that the ITO did not disclose reasonable and probable grounds to believe that firearms would be found at a particular location. The Crown appealed on the basis that the trial judge erred in her s. 8 Charter analysis by applying the wrong standard of review and by not considering reasonable inferences that could be drawn form the ITO.

[85] In Kalonji, the court found that the trial judge misapplied Herta and ignored crucial passages in which Justice Fairburn noted that the address searched was not the residence of the person said to posses a gun, but that if the address had been his residence, it might have given rise to a reasonable inference that he would have kept his gun there. Justice Fairburn found that the question was whether the issuing justice might have been misled into thinking that the accused lived at that residence and, therefore, drawn the wrong inference that he would keep his firearm at his own residence.

[86] In Kalonji, the court found that the inference that the applicant kept this firearm at his own residence was available to the issuing justice. The court noted that unlike in Herta, there was more than one attendance at the residence. In Herta, the ITO did not disclose whether the affiant knew who lived at the location to be searched or who owned it. In Kalonji, however, there was information that the applicant lived at the target address. The court found that the trial judge erred by failing to find that the evidence could support a reasonable inference that firearms would be found at the address. At para. 27, the court found that as the ITO set out sufficient grounds to establish that the applicant had committed an offence and that the address was one of his residences, there were reasonable and probable grounds to believe that a search of the residence would afford evidence of the offence, namely firearms.

[87] At para. 29, the court found that the standard for issuing a warrant is whether there are reasonable and probable grounds to believe that there is evidence respecting the commission of an offence at the location to be searched. The standard does not require proof on a balance of probabilities. The affiant is not required to satisfy an issuing justice that it is more likely than not that the things to be searched are at the location to be searched. The ITO showed that the applicant possessed several firearms, and that he lived at the address to be searched which gave rise to a common-sense inference that one of the firearms would be found at his home.

[88] In Kalonji, there was information from the complainant that she had seen guns in the accused’s car, that he lived at the address, and the identity of the roommate. She also described the apartment. There was evidence that the accused was seen entering the building by a concierge using a key fob. The alleged roommate was also seen entering the building.

[89] This contrasts with Herta, where the court found that a search warrant was granted for an address where the accused was seen once, without any information of who owned the residence, who lived there and whether the accused had any association with the address. There was nothing about the house that connected it to the firearm.

[90] In this matter, there is more information than in Herta connecting Mr. Lacroix to the residence but not as much as in Kalonji. Mr. Lacroix was not just seen entering the residence, as in Herta, but he was also connected to the address through the vehicle he was seen driving on three occasions that was owned by the person who lived at that address. This is less evidence, however, than in Kalonji, where there was more detailed information provided by the complainant that the accused lived at the targeted address.

[91] There was no information from the CI in this matter about the address where Mr. Lacroix lived. Cst. Houlihan connected Mr. Lacroix to the residence through police efforts to corroborate the information provided by the CI. He also provided his own opinion, based on his experience as an investigator, about why people who engage in criminal activity will live elsewhere than as disclosed on their driver’s licence.

[92] This is a close call. The question is whether the information in the ITO contained information sufficient to establish a connection between the firearm and the residence. That connection would be based on whether the issuing justice was satisfied that Mr. Lacroix lived at the residence. If so, as in Kalonji, it would be open to the justice to draw the reasonable inference that a firearm could be found at that address.

[93] I am mindful that my role is not to hold a new hearing and determine what I might have done faced with the same information. The test for review is whether, on the face of the information disclosed to the issuing justice, that justice could have issued the warrant. Were there reasonable grounds to believe that a firearm would be found at the residence? In my view, to make that finding, the issuing justice would have to be satisfied that Mr. Lacroix lived at the residence.

[94] Based on the totality of the information provided in the ITO, including the opinions of Cst. Houlihan, I am not satisfied that there was information provided to the issuing justice upon which they could conclude that Mr. Lacroix lived at the residence. I consider it a leap to conclude that Mr. Lacroix lived at the residence based only on observing Mr. Lacroix drive a car on three occasions that was owned by Ms. Fredericksen and then seeing him at her residence once. In the absence of any other information, or evidence linking him to that residence, it was, in my view, not open to the issuing justice to conclude that Mr. Lacroix lived at that address, even though that was the opinion of Cst. Houlihan. Based on the limited information connecting Mr. Lacroix to the residence, a reasonable inference could not be made that he lived at that address and that a firearm would be found at that location. As such, the search warrant for the residence was improperly issued and the subsequent search of the residence was executed without lawful authority and violated Mr. Lacroix’s s. 8 rights.

Was there a violation of s. 10(b) because of the delay in implementing rights to counsel?

[95] The Crown does not dispute that there was a delay in implementing Mr. Lacroix’s right to speak to counsel but argues that the delay does not warrant any remedy under s. 24(2) to either exclude the statement or the evidence seized when the vehicle was searched.

[96] While there is no dispute that there was a breach of s. 10(b), I will review the evidence of the three officers who testified, as their evidence about why there was a delay in implementing Mr. Lacroix’s right to counsel will have a direct bearing on the s. 24(2) analysis and whether the evidence should be excluded.

[97] There are two components to the right to counsel. One is informational and the other is implementational. There is no dispute that Mr. Lacroix was informed of his right to speak to counsel. The detainee must then be provided with a reasonable opportunity to exercise that right without delay: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 38-42.

[98] It is not disputed that concerns over public and police safety, as well as the preservation of evidence, can justify a delay in implementing the right to counsel. However, the police may delay access to counsel only after turning their mind to the specific circumstances of the case and concluding, on some reasonable basis, that one of those factors exist which justifies the delay: R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at paras. 27 and 33.

[99] In Rover, the accused was arrested at 10:41 pm for various drug-related offences. He was advised of his right to counsel and said he wished to speak with his lawyer. At the time of his arrest, another officer was submitting a search warrant application for his residence. The arresting officer was told by an investigator that the accused would not be allowed to speak to counsel until after the warrant was executed. Various officers who testified referred to this as standard practice. The accused was taken into custody but did not speak with counsel until 5:45 am.

[100] The Court of Appeal found that the police evidence, that it was their standard practice to delay right to counsel whenever they are in the process of obtaining a search warrant, replaced the narrow, case-specific exception to the constitutional right to speak to counsel without delay. The court found that there was no evidence that any of the officers turned their mind to the specific circumstances of the case before deciding that the accused would be arrested and denied access to counsel until after the police obtained and executed a search warrant. The court found that the evidence should be excluded.

[101] I will now review the evidence of each of the officers.

Cst. Cranley

[102] Cst. Cranley has been with PRP for 17 years. On April 3, 2018, he was assigned to continue a firearm investigation. While he was the officer in charge that day, he testified that he was not directing the investigation. He was, however, involved with Mr. Lacroix’s arrest.

[103] Cst. Cranley testified that Mr. Lacroix was arrested at 5:43 pm by the tactical unit at gunpoint while driving the vehicle. This was after the two search warrants were obtained. At 5:45 pm, Mr. Lacroix was transferred by the tactical unit to Cst. Cranley who told him immediately he was under arrest for the illegal possession of a firearm. He gave Mr. Lacroix his right to counsel and cautioned him.

[104] Cst. Cranley testified that when he asked Mr. Lacroix if he wanted to speak with a lawyer, Mr. Lacroix said he did not think he needed one. In his notebook, Cst. Cranley wrote, “don’t think I need one”.

[105] He agreed on cross-examination that there was nothing in his notebook about the questions and answers given when he read Mr. Lacroix his right to counsel and caution. The only entry in his notes about the right to counsel was the one utterance made by Mr. Lacroix . According to Cst. Cranley, he considered this to be an unequivocable answer that Mr. Lacroix did not want to speak with a lawyer. He was also satisfied that Mr. Lacroix understood his right to counsel.

[106] Cst. Cranley testified that after he gave Mr. Lacroix his right to counsel, another officer arrived to transport Mr. Lacroix to 11 division. He told this officer, Cst. Danek, that Mr. Lacroix was under arrest for possession of a firearm, that he had been read his right to counsel and cautioned, and that he had declined to speak to a lawyer. He asked Cst. Danek to read him his right to counsel again and a secondary caution. He did not recall telling Cst. Danek to delay implementing Mr. Lacroix’s right to counsel until after the search warrant was executed.

[107] According to Cst. Cranley, he did not recall any discussion with any officers involved with the investigation that the implementation of Mr. Lacroix’s right to counsel would be delayed. He testified that he knew that rights to counsel could be delayed when dealing with firearm offences for reasons associated with public or police officer safety. He was aware that there was a residence to be searched and they knew little of the occupants so he thought there may have been discussions amongst more senior officers about delaying Mr. Lacroix contacting counsel, but he was not part of any such discussion, nor did he provide any such directions to any officer.

[108] Cst. Cranley left the arrest scene and arrived at the residence to be searched at 6:40 pm. He waited for the tactical unit to arrive; they then entered the residence at 7:09 pm and left after the search was completed at 7:55 pm. There were people in the residence, but no firearm. He then drove to the forensic bureau to search the vehicle, arriving at 8:40 pm. During this search, that lasted 20 to 30 minutes, cocaine, a scale, and cell phones were found. A firearm was not found.

[109] On cross-examination, Cst. Cranley agreed that there was nothing in his notes about any discussions concerning the delay in the implementation of Mr. Lacroix’s right to counsel. He agreed that if someone had told him that, he would make a note of it in his notebook as he agreed that it is important information to record.

Cst. Danek

[110] Cst. Phillip Danek has been with PRP for 14 years. On April 3, 2018, at 5:47 pm, he was dispatched to assist in transporting a person to 11 division. He arrived on scene at 6:02 pm. His evidence was that he spoke with Cst. Cranley, who told him Mr. Lacroix was in custody for possession of a firearm. He asked Cst. Cranley if he had read Mr. Lacroix his rights to counsel and if he wanted him to do it again. He did not recall if he was told whether Mr. Lacroix did or did not request to speak with a lawyer when he was first read his rights to counsel. He did not make any notes about this conversation in his notebook.

[111] When Mr. Lacroix was placed in the back seat of his marked cruiser, he read him his rights to counsel. Cst. Danek testified that he read from the preprinted card found in his notebook. When he asked Mr. Lacroix if he wanted to speak with a lawyer, Mr. Lacroix said yes. He left the scene at 6:03 pm, one minute after he arrived.

[112] According to Cst. Danek, when he arrived at the arrest scene, he learned that a search warrant was going to be executed at a residence. He did not recall who told him about this search warrant. He also testified that he would have spoken to someone at the scene about whether Mr. Lacroix’s right to counsel should be delayed until after the residence was searched. He did not actually recall doing this, but said it was his general practice. He made no notes of any such conversations or of who told him to delay implementing Mr. Lacroix’s right to counsel. His notebook entry is that he told Mr. Lacroix his right to counsel was going to be delayed until the search warrant was executed.

[113] Cst. Danek testified that his only role was to transport Mr. Lacroix and that it was the officer in charge who would decide if Mr. Lacroix could talk to counsel or if it should be delayed. He was aware that implementing right to counsel could be delayed if there were concerns for public safety, or if there was a concern that evidence could be disposed of before the residence was searched.

[114] According to Cst. Danek, the PRP practice at the time was to delay implementing rights to counsel where a person is arrested outside a residence and a search warrant has not yet been executed at the residence. He testified that this practice was in place for reasons of public safety and preserving evidence. He testified that this practice has changed because of recent case law.

[115] Cst. Danek arrived at 11 division with Mr. Lacroix at 6:09 pm. His evidence was that he would have spoken with the cell officer, but he did not recall who that was. He would have told the cell officer that Mr. Lacroix was not to speak with a lawyer at that time. In this case, he did not recall if he told the cells officer that Mr. Lacroix wanted to speak with a lawyer. It was his evidence that the cells officer will always ask detained persons standard questions, which includes whether they want to speak with a lawyer. He did not have a specific recollection of what the cells officer asked Mr. Lacroix.

[116] Cst. Danek had no further involvement with this matter after he transported Mr. Lacroix to 11 division.

[117] On cross-examination, he testified that with new case law, which I presume to be Rover, police are to implement right to counsel as soon as possible. Prior to that, he testified, if a search warrant was to be executed, depending on the circumstances, police would delay implementing right to counsel until that was completed. He agreed that at the time of this matter, it was general police practice to delay implementing right to counsel until a search warrant was executed. In this case, he did not know what was being searched for at the residence. He testified that it could have been for a firearm or for drugs. He agreed that he did not know the location of the residence that was to be searched nor did he know if any officers were at the residence or if they had control of the residence when Mr. Lacroix was arrested. He did not make any inquiries about the status of the search warrant.

[118] Cst. Danek agreed on cross-examination that the right to counsel is of utmost importance. He testified that although Mr. Lacroix said he wanted to speak to a lawyer, he had no intention of facilitating that as he was only the transport officer, and it was up to the officers involved in the investigation to implement his rights to counsel.

[119] On cross-examination, he testified that he recalled speaking to an officer at the arrest scene about delaying implementing right to counsel, but he did not know who it was. This differs from his evidence in chief that he did not recall doing this but that it was his general practice. He agreed he made no notes of speaking with any other officer at the scene, other than Cst. Cranley. He agreed that if he was told to delay Mr. Lacroix’s access to a lawyer, this would have been important information to record in his notebook. There was no such entry in his notebook.

[120] He also agreed that in the type of investigation involving Mr. Lacroix, it was common practice of PRP to delay implementing right to counsel at the time of his arrest. His understanding at the time was that a delay would occur in specific circumstances, such as if a person was arrested and a victim was missing, or if a residence subject to a search warrant had not been “frozen,” meaning all occupants removed. He made no inquires at the time to determine if the residence had been frozen or if the search warrant had been executed so that Mr. Lacroix could be provided with his rights to counsel when he arrived at 11 division. He also did not tell any other officer involved in the investigation that Mr. Lacroix indicated that he wanted to speak with counsel.

Cst. Houlihan

[121] Cst. Tom Houlihan has been with PRP for 17 years and was the affiant for the ITO. He was present when Mr. Lacroix was stopped by the tactical unit. He also attended at the search of the residence. He did not speak with Cst. Danek, nor did he have any contact with Mr. Lacroix. However, when he left for the residence, he was aware that no firearm was found after a cursory search of the vehicle.

[122] Cst. Houlihan testified that he stopped at another address before going to the residence, as Mr. Lacroix was observed attending at another address earlier in the day. He arrived at the residence at 6:45 pm. The tactical unit arrived at 7:00 pm. The search ended at 8:10 pm. No firearm was found.

[123] Cst. Houlihan left the residence at 8:25 pm and arrived at 11 division at 8:35 pm. There, he spoke with the staff sergeant and was told that Mr. Lacroix was in the cells. At that point, he was told that Mr. Lacroix initially declined to speak to a lawyer but then wanted one, but no arrangements had been made for him to do so. He did not recall who told gave him this information.

[124] Cst. Houlihan contacted duty counsel at 8:57 pm and left a message. Duty counsel returned the call at 9:08 pm and Mr. Lacroix was placed in a private room to speak with counsel from 9:10 pm to 9:16 pm. Thereafter, Cst. Houlihan questioned Mr. Lacroix. The interview was audio and video recorded and I have reviewed the statement.

[125] Cst. Houlihan testified that he was not involved in the decision to delay implementing Mr. Lacroix’s right to counsel.

[126] Cst. Houlihan testified that he was informed that drugs were found in the vehicle after Mr. Lacroix spoke with duty counsel. Mr. Lacroix was brought into an interview room at 9:21 pm. At 9:25 pm, shortly after Cst. Houlihan commenced the interview, he told Mr. Lacroix that no gun was found but that drugs were found in the vehicle and that he was now going to be charged with possession for the purpose of trafficking in cocaine and crack. Mr. Lacroix then said, “can I talk to a –” and Cst. Houlihan answered, “just give me a sec” and he then read him his right to counsel.

[127] After each question, he asked Mr. Lacroix if he understood, and Mr. Lacroix said he did. Mr. Lacroix interrupted him a few times and asked if he was going to be released. Cst. Houlihan told him before he finished reading rights to counsel: “We’re not planning on keeping you in custody. You don’t have a record or-.” He then continued and asked Mr. Lacroix if he wanted to call a lawyer now and Mr. Lacroix asked: “Um am I being released?” Cst. Houlihan responded, “you’re gonna be released”, to which Mr. Lacroix responded, “I’m gonna call a lawyer after I’m released.” Cst. Houlihan again said: “You are gonna be released. We’re not seeking your detention.” After that exchange, Cst. Houlihan read the caution and secondary caution and began questioning Mr. Lacroix.

[128] At one point, Mr. Lacroix said that he wanted to speak to a lawyer, but that request was not facilitated by Cst. Houlihan on the basis that he had already spoken to a lawyer. The Crown does not seek to tender, nor is it seeking a ruling on the admissibility of any portion of the statement following that exchange, recognizing that denying Mr. Lacroix an opportunity to speak to counsel when he asked to do so during the interview was a further breach of s. 10(b).

Should the section 10(b) Breach Result in the Exclusion of any of the Evidence or the Statement Pursuant to [Section 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

[129] With the concession by the Crown that there was a s. 10(b) violation, I must consider the application of s. 24(2) of the Charter and whether the evidence and statement should be excluded because of the breach.

Obtained in a Manner

[130] Before addressing the Grant factors, a threshold issue is whether the evidence was “obtained in a manner that infringed or denied” Mr. Lacroix’s Charter rights. If the answer to this question is yes, then the issue is whether the admission of the evidence into the proceedings would bring the administration of justice into disrepute. I must assess the strength of the connection between the evidence sought to be excluded and the breach.

[131] The concept of “obtained in a manner” was considered in R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561. In that case, the police entered the accused’s home at 1:43 pm, unannounced and without knocking, after obtaining a search warrant to search his home. The accused was handcuffed and given his right to counsel. He said he wished to speak with his lawyer. He was transported to the police station but did not speak with a lawyer until 5:14 pm - about 3.5 hours later. He was charged with various drug offences after drugs and drug paraphernalia was found in his home. The defence alleged various s. 10(b) breaches including the delay in implementation of rights to counsel. The Court of Appeal agreed that there was a delay that violated s. 10(b).

[132] When addressing whether the evidence should be excluded, the first issue the court considered was whether it was “obtained in a manner that infringed or denied” the accused’s Charter rights: Pileggi, at paras. 98 to 108. The Court noted that a generous view is taken to the threshold and referred to R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 56, where Laskin J.A. described this requirement as “just the gateway to the focus of s. 24(2)”.

[133] In Pino, the accused was convicted of possessing several marijuana plants for the purpose of trafficking. The marijuana was seized from the trunk of her car following a search incident to her arrest at 1:00 pm. The police had also obtained search warrants for two residences which were not executed until after the accused was arrested. Those searches led to the discovery of a large marijuana grow operation.

[134] Rights to counsel were delayed, as one of the investigating officers decided he did not want the accused to make a phone call that could compromise the execution of the search warrant at the residences. The accused was left in a jail cell for five and a half hours after her arrest. While the trial judge found this to be a clear and serious breach, he did not exclude all the evidence under s. 24(2). He found that the marijuana found in the car could not be excluded as it was evidence discovered before a Charter breach, but he did exclude the evidence found at the residence when the search warrant was executed.

[135] The Court of Appeal did not agree and excluded the evidence entirely. The main issue on appeal was whether Charter breaches that occur after the discovery of evidence meet the “obtained in a manner” requirement under s. 24(2).

[136] After reviewing jurisprudence, Laskin J. A. concluded, at para. 77, that it did not make a difference whether the s. 10(b) breach occurred before or after the discovery of the evidence. Either way, he found that the administration of justice would be brought into disrepute if the court condoned the Charter violations.

[137] The framework for determining if “obtained in a manner” has been met involves inquiring into whether there is a casual, temporal, or contextual connection between the evidence and the breach: Pino at para. 72. The connection must be real and not too remote or tenuous: Pino at para. 72. Justice Laskin also held that the courts should examine the entire chain of events between the accused and the police and the “requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct”: Pino, at para. 72

[138] In Pileggi, the court found that there were two s. 10(b) breaches, both of which occurred in the home. The breach associated with the delay in implementing rights to counsel occurred just after the search of the home had commenced. The court found that what happened at the police station was connected to these events, as the arresting officer neglected to ensure that the transporting officer was aware of his undertaking to the accused to let him call his father. At para. 106, the court found that while part of the breach sequence occurred after the lawful search, the two events were “largely concurrent” and found that the connection between the discovery of the evidence and the infringement was not “too remote”.

[139] The court agreed that there was no causal connection between the s. 10(b) infringement and the discovery of the evidence, but found that such a connection is not required “to pass through the s. 24(2) gateway”: Pileggi, at para. 107. The court found that the absence of a casual connection is, however, a relevant consideration when dealing with the impact on the accused’s Charter-protected interests.

[140] These principles were reiterated in Rover. In Rover, the accused was arrested at 10:41 pm and advised of his right to counsel. He immediately exercised that right and asked to speak with a lawyer. At the same time, another officer submitted a search warrant application, and the arresting officer was told that the accused could not speak to counsel until after the warrant was executed.

[141] The search of the house began at 3:01 am and drugs were found. At 4:20 am, the arresting officer was told that the accused could contact his lawyer but for various reasons he was not able to do so until 5:45 am. The trial judge found that there was a s. 10(b) breach that commenced at 3:01 am when the search of the home commenced and ended at 4:20 am when the accused was told he could contact his lawyer. The trial judge did not exclude the evidence.

[142] That decision was overturned by the Court of Appeal. The court found that the unconstitutional delay in allowing the accused to speak with his lawyer was almost 6 hours (10:41 pm to 4:20 am). The court also found there was a close temporal connection between the evidence seized and the s. 10(b) breach, sufficient to engage s. 24(2).

[143] In this case, the evidence was found in the vehicle and seized after the s. 10(b) breach occurred. I find that the breach occurred at 6:09 pm when Mr. Lacroix arrived at 11 division, which was before the vehicle was searched. The breach was continuing at the time the search of the vehicle commenced at 8:40 pm at the police station as Mr. Lacroix did not speak with duty counsel until 9:10 pm. The s. 10(b) violation occurred before the evidence was located. Applying Rover, Pino, and Pileggi, I am satisfied that while there was no casual connection between the discovery of the drugs and the s. 10(b) breach, there was a close temporal connection. The breach was part of the continuum of Mr. Lacroix’s arrest. Furthermore, the connection between the discovery of the evidence and the infringement was not too remote. As such, the evidence seized meets the requirement of “obtained in a manner” pursuant to s. 24(2) of the Charter. The breach of Mr. Lacroix’s s. 10(b) rights could, therefore, trigger the exclusion of the evidence obtained in the search of the vehicle.

The Grant Factors

[144] Section 24(2) requires the court to consider the effect of the admission of the evidence on the long-term repute of the administration of justice. Analysis must be conducted under the three prongs of the test set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. As explained at para. 70:

Finally, a s. 24(2) focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

Was the Charter-infringing State Conduct Serious?

[145] The first branch of the Grant test requires consideration of the seriousness of the Charter-infringing state conduct. This necessitates placing the police conduct along a spectrum running from minor, inadvertent conduct at one end, through negligence, to deliberate, wilful, or flagrant conduct at the other end. The more severe and deliberate the state conduct, the more serious the breach and the more the court will be required to distant itself from that conduct through the exclusion of evidence linked to the conduct: R v. Keshavarz, 2022 ONCA 312, at para 105; and Grant, at para. 72.

[146] The three officers who testified on this voir dire, were each questioned specifically about Mr. Lacroix’s arrest. Two were questioned about why there was a delay in implementing his right to counsel. Based on their evidence, I am troubled by the casual and lackadaisical approach taken by PRP in implementing Mr. Lacroix’s right to counsel when he expressed a choice to speak with counsel. In my view, through their actions, or lack thereof, PRP demonstrated a careless disregard of this fundamental constitutional right.

[147] Only Cst. Danek testified that Mr. Lacroix was not to speak to counsel until after the search warrant of the home was executed. He wrote in his notebook that he told this to Mr. Lacroix. On one hand, he testified that this was the standard practice at the time and on the other hand he testified that he was given this specific instruction at the arrest scene by an officer, but he could not recall who.

[148] If I accept Cst. Danek’s evidence that he was given this instruction at the arrest scene, there was nonetheless no evidence called about why he was told to delay Mr. Lacroix’s right to counsel. There was no evidence if he was given that instruction as it was standard practice of PRP to delay right to counsel or if the officer who told him turned his/her mind to the specifics of the circumstances and decided there was a reason to delay granting Mr. Lacroix access to counsel.

[149] The onus is on the Crown to establish that the delay in implementing access to counsel was justifiable or reasonable in the circumstances. It has failed to do so. Even if Cst. Danek was told to delay access to counsel there was no evidence led about why he was given that direction.

[150] For several reasons, I have difficulty accepting Cst. Danek’s evidence that another officer at the arrest scene told him to delay implementing right to counsel. Firstly, Cst. Cranley’s evidence is inconsistent with Cst. Danek’s evidence as Cst. Cranley, who was the officer in charge and was at the arrest scene, testified that he was unaware of any discussion to delay access to counsel amongst the officers involved with the investigation. He also testified that he would have recorded it in his notebook if there was such a discussion.

[151] Cst. Danek only made a note of speaking with Cst. Cranley at the arrest scene and there was no note of any instruction to delay right to counsel. This is consistent with Cst. Cranley’s evidence as he testified that he did not give Cst. Danek that instruction.

[152] I also question whether Cst. Danek had time to speak with any other officer at the arrest location as he was there for only one minute. During that one minute, Cst. Danek spoke to Cst. Cranley and made notes in his notebook. He then placed Mr. Lacroix in his cruiser and administered rights to counsel and caution. Based on the extremely brief time he was at the arrest scene and what transpired during that minute, I doubt that there was sufficient time for Cst. Danek to have a conversation with another officer. Furthermore, he agreed that if he was given the instruction to delay right to counsel, it would be important information to write in his notebook.

[153] Cst. Danek’s recall of the events was quite limited beyond the brief entries he made in his notebook. This is not unexpected given the brief time he spent with Mr. Lacroix and as the events occurred over four years ago. For example, he did not recall the following:

• if the tactical team was present when he arrived at the arrest scene;
• where Mr. Lacroix was when he arrived;
• if Mr. Lacroix was present with Cst. Cranley told him why he was in custody;
• whether Mr. Lacroix asked to speak with counsel when Cst. Cranley first read him his right to counsel;
• who told him to delay access to counsel;
• who the cells officer was;
• whether Mr. Lacroix asked to speak with a specific lawyer;
• whether he told the cells officer that Mr. Lacroix wanted to speak with a lawyer.

[154] Given the details that he could not recall, I have concerns accepting his evidence that he has an independent recollection of being given instructions to delay right to counsel by another officer when that detail was not in his notebook. He was told by Cst. Cranley that there was an outstanding search warrant, and his notebook entry records that he told Mr. Lacroix that his rights to counsel would be delayed until the search warrant was executed. I do not find that this entry means Mr. Lacroix was given that instruction as it is also consistent with Mr. Lacroix’s evidence that this was standard practice at the time so he would have informed Mr. Lacroix of this when he was told of the search warrant.

[155] It is not unexpected for an officer to have limited memory of events that occurred over four years ago that are not recorded in his/her notebook. That is the reason police officers must keep accurate notes and why they are typically granted leave to rely upon them at trial to refresh their memory. Cst. Danek was an experienced officer who understood the importance of taking notes. He also appreciated the significance of delaying Mr. Lacroix’s right to counsel and agreed that it was an important detail to record in his notebook. I find that the reason he made no note about being instructed to delay right to counsel is that he did not have a conversation with any other officer at the scene nor was he given any specific direction to delay access to counsel.

[156] The reason Cst. Danek did not implement right to counsel after being told by Cst. Cranley there was a search warrant to be executed is that was the standard practice of PRP at the time. Cst. Danek acknowledged that standard practice numerous times when he was testifying. That is also the reason why he told Mr. Lacroix his right to counsel was going to be delayed – that was standard practice.

[157] Cst. Danek’s understanding of this standard practice to delay right to counsel when a search warrant was still to be executed also sheds light on why he made no inquires of the status of the search warrant, what was being searched for and whether the search was in progress or not. It also sheds light on his decision to not inform any of the investigating officers that Mr. Lacroix wanted to speak with a lawyer. He did not do so as Mr. Lacroix’s request to speak with a lawyer was not going to be implemented without delay at the police station give the standard practice of PRP to wait until after the search warrant was executed.

[158] None of the officers testified about giving any thought or turning their mind to whether there should be a delay in implementing Mr. Lacroix’s right to counsel. Cst. Houlihan was only informed that Mr. Lacroix requested to speak to a lawyer and had not yet done so when he returned to the police station after searching the residence. Up to that point, Mr. Lacroix was left alone in a jail cell, with no one other than Cst. Danek, who had left the police station, and I presume the cells officer, aware that he wanted to speak to a lawyer. While Cst. Danek could not recall if he told the cells officer that Mr. Lacroix wanted to speak to a lawyer, it is reasonable to infer he did, as someone informed Cst. Houlihan of that when he arrived back at 11 division.

[159] This is not a case of mere inadvertence or carelessness on the part of PRP officers. It is not an isolated case of officer error or miscommunication. If it were, I would not exclude the evidence or the statement. The only evidence about why right to counsel was delayed was from Cst. Danek who testified that it was standard practice at the time to delay access to counsel when there was a search warrant to execute.

[160] Justice Doherty was critical of that standard practice in Rover. While more than one officer testified about the standard practice in Rover, in both Rover and in this matter, there was no evidence that any officer turned their mind to the actual need to delay the detainee’s access to counsel. Furthermore, there was no evidence that any officer thought of mitigating the delay by either having another tactical team at the residence ready to execute the search warrant as soon as Mr. Lacroix was arrested or contacting 11 division once the residence was secured or “frozen” so that Mr. Lacroix could contact his counsel at that time. The breach was exacerbated by the lack of communication from Cst. Danek to any other officer involved in the investigation informing them that Mr. Lacroix wished to speak with counsel.

[161] In Rover, Doherty J. A. found, at para. 40, that “constitutional breaches that are the direct result of systemic or institutional police practices must render the police conduct more serious for the purposes of the s. 24(2) analysis”. In my view, there was such an institutional practice in place when Mr. Lacroix was arrested which was inconsistent with the fundamental protection afforded to persons arrested to speak with counsel without delay. That practice has a negative impact, in the long term, on the administration of justice.

[162] I do not agree with the Crown that the facts in this case are like those in Keshavarz. In Keshavarz, at para 77, the court reviewed the detailed evidence from one of the officers about why the delay in contacting counsel was justified. It was clear that the police turned their minds to the specific circumstances before them with respect to the specific accused.

[163] It is insufficient to suggest that the right to counsel would have been delayed if the police had turned their mind to the circumstances of this case for reasons of public and police safety. There was no evidence that PRP considered any case-specific information justifying the delay. No officer testified that the decision to do delay access to counsel was justified as the firearm had not been located when the search warrant at the residence was executed and as PRP did not know how many people lived at the residence or were present at the time, thus placing public and police safety at risk.

[164] There were also two other Charter breaches which I have also considered in finding that the PRP’s misconduct was serious. First, while no evidence was found at the residence, I have found that there was a s. 8 breach associated with the search of the house. However, PRP sought and received judicial authorization for the search, so I do not consider that breach to be part of any sort of pattern of abusive police conduct. The second 10(b) breached occurred when Cst. Houlihan denied Mr. Lacroix’s request to speak with a lawyer during his interview after he was arrested for possession for the purpose of trafficking. While the Crown does not seek to rely on any portion of the statement after that denial, it was, nonetheless, another breach of Mr. Lacroix’s s. 10(b) right to speak to counsel without delay that was breached by PRP conduct. This second 10(b) breach suggests a certain degree of carelessness towards right to counsel.

[165] For these reasons, I consider the Charter-infringing state conduct to be very serious. This factor favours exclusion of the evidence.

The Impact of the Breach or Breaches on the Charter-protected Interests of Mr. Lacroix

[166] The second branch of Grant considers the impact of the breach on the Charter-protected interests of the accused.

[167] In Keshavarz, the Crown conceded that that there was some contextual and temporal connection between the s. 10(b) breach and the firearm. Justice Fairburn found no causative connection between the breach and the discovery of the evidence as the evidence was found hours before the breach occurred. She found that this lessened the impact of the breach on the accused’s Charter-protected interest, making admission more likely.

[168] Similarly, in this case, while the evidence was found after the breach, there is no casual connection between the s. 10(b) breach and the evidence which is a factor mitigating the impact of the breach on Mr. Lacroix’s Charter-protected interests.

[169] Nonetheless, there was 2 hours and 46 minutes where Mr. Lacroix was detained in a jail cell without speaking with counsel. In Rover, the delay was much longer – almost six hours. Justice Doherty commented that a delay of that length of time, even though no attempt was made to speak to the accused, had a significant impact on his rights. Justice Doherty referred to the psychological value of access to counsel without delay that should not be underestimated as detained persons not only receive legal advice but guidance about the process and procedure while detained.

[170] In Pino, the court found that a five-hour delay in access to counsel was neither technical nor fleeting. The court found that the accused was vulnerable and needed counsel, not just for legal advice but as a lifeline to the outside world.

[171] In Pileggi, the delay was three and a half hours. In that case, the court found that the impact on the accused’s charter-protected right was not significant, not because of the shorter length of time but because the accused was kept apprised of attempts to engage duty counsel on his behalf. The court was satisfied that the police intended to put the accused in contact with counsel and they conveyed their efforts to do so to the accused.

[172] In R v. Noel, 2019 ONCA 860, there was a three-hour delay before the accused was provided right to counsel. The accused was arrested following the execution of a search warrant. He requested to speak to a lawyer before he was transported to the police station. At the police station, no one took charge of facilitating his right to counsel. While efforts were made for a co-accused to speak with duty counsel, there was no evidence if duty counsel called back to speak with Mr. Noel.

[173] At para. 28, in Noel, the court noted that the right to speak with counsel without delay exists as those who are arrested or detained are apt to require immediate legal advice that they cannot access without help, because they are detained. In addition to requiring immediate legal advice, the court also noted that an accused needs reassurance and relied on Rover where Doherty J. A. described the right to counsel as a “lifeline”.

[174] In Noel, the court found that a three-hour delay was serious. Police conduct was described as cavalier and careless. The court found that the impact of the breach was significant and not neutral as the accused was detained in custody for three hours unable to receive the direction, reassurance, and advice that a lawyer could provide: Noel, para 33. The court found that the evidence found at the home ought to have been excluded.

[175] There was no evidence in this case about anything said to Mr. Lacroix other than his right to counsel was going to be delayed. There is no evidence of any communication with Mr. Lacroix after he was placed in a jail cell. No efforts were made to put him in touch with a lawyer until Cst. Houlihan returned to the police station and was, for the first time, told that Mr. Lacroix wanted to speak to a lawyer.

[176] I consider this to be a close call in determining if the impact was neutral or significant. While the delay was shorter than in Pino or Rover, there was still an extended time when Mr. Lacroix was left without access to a lawyer. While this is a close call, I find that this factor tilts toward favouring exclusion.

Society’s Interest in the Adjudication of the Case on its Merits

[177] The third branch of Grant is concerned with society’s interest in adjudication on the merits. Exclusion of the evidence in this case means the exclusion of the cocaine. The Crown’s case may be gutted. There is a very strong societal interest in the adjudication of a case in which drugs are discovered in an accused’s vehicle. This branch of the test points strongly towards inclusion of the evidence.

The Balancing

[178] In conducting the balancing, the jurisprudence tells us that if the first and second branches of Grant make a strong case for exclusion, the third branch will seldom, if ever, tip the balance in favour of admissibility: R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63; R. v. Dunkley, 2016 ONCA 597, 31 O.R. (3d) 721, at para. 63.

[179] In my view, in the absence of evidence that any officer considered the particular circumstances of this case and turned their mind to why the fundamental right to speak to counsel ought to have been delayed, the admission of the evidence found in the vehicle in the circumstances of this case would bring the administration of justice into disrepute.

[180] There is a need for the court to dissociate itself from what happened in this case. While the police unexpectedly discovered drugs and related paraphernalia during their search of the vehicle, and the exclusion of this evidence may foreclose a successful prosecution for the offences charged, I find that in this case, exclusion of the evidence is required to maintain long term public confidence in the administration of justice.

[181] The evidence will be excluded.

[182] For clarity, for the same reasons as set out herein, the statement must also be excluded.

Voluntariness

[183] For completeness, I will address the voluntariness of the statement.

[184] I am satisfied that the Crown has proven the statement given by Mr. Lacroix at the police station to be voluntary beyond a reasonable doubt.

[185] The defence argues that there was an inducement as Cst. Houlihan told Mr. Lacroix he was going to be released. However, there was no quid pro quo. This is not a situation where Mr. Lacroix was told that he would be released if he cooperated or answered the questions.

[186] Furthermore, I have reviewed the videotape. Throughout the interview, Mr. Lacroix is engaged and appears relaxed and comfortable speaking with Cst. Houlihan. He asked Cst Houlihan many questions. He volunteered information. There was no evidence that any sort of inducement about being released caused the will of Mr. Lacroix to be overborne.

[187] The Crown has discharged its onus and the statement is proven voluntary, beyond a reasonable doubt. Given my findings regarding the Charter breach as set out herein, however, the statement is not admissible.

L. Shaw J.

Released: July 18, 2022

COURT FILE NO.: CR-21-720-00 DATE: 2022-07-18

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – DENNISION LACROIX

REASONS FOR JUDGMENT ON PRE-TRIAL CHARTER APPLICATION TO EXCLUDE EVIDENCE OBTAINED FOLLOWING EXECUTION OF SEARCH WARRANT

L. Shaw J.

Released: July 18, 2022