COURT FILE NO.: CR-22-30000105-0000

DATE: 20220729

ONTARIO SUPERIOR COURT OF JUSTICE

LEIPER J. INTRODUCTION

[1] The Applicants Aymin Shears-Singh and Keysean Patterson were apprehended by 41 Division police officers as suspects in a robbery at a TTC station. They were arrested several hours after the robbery was reported to the police, together with a third young man, Raheem Murphy, who was standing speaking to them near a bus stop.

[2] On their arrest, both Applicants were found to have handguns. Mr. Shears-Singh was also found to have 16 g of fentanyl and crack cocaine on his person and property belonging to the victim of the robbery. He was 19 years of age at the time of his arrest. Mr. Patterson was 20 years of age.

[3] Police charged them with robbery and firearms offences. Mr. Shears-Singh was also charged with possession of a schedule I narcotic for the purpose of trafficking. Mr. Patterson was also charged with one count of possession of property under $5,000 obtained by crime.

The Nature of the Charter Application

[4] On July 11, 2022, the Applicants brought s. 24(2) Charter motions seeking to exclude the evidence seized from them incident to their arrest based on alleged breaches of their s.10(b) rights to counsel under the Charter.

[5] Crown counsel conceded the s. 10(b) breach but submits that the evidence should not be excluded based on mitigating factors and the lack of a causal connection between the discovery of real evidence and the breaches.

The Charter Issues on this Application: Was There a Section 10(b) Breach and If So, What Remedy If Any Should Be Assessed Under Section 24(2)?

[6] Although the Crown conceded the s. 10(b) violation on this Application, I consider first whether there was a breach of the Applicants’ s. 10(b) rights and then I address the issue of relief under s. 24(2) of the Charter.

[7] I do so because Mr. Levy, for the Crown, did not dispute that there was a serious breach of s. 10(b) in the circumstances of this investigation. However, he submitted that the seriousness of the breach was reduced by the fact that one of the investigating officers relied on case-specific information to support his decision to delay the implementation of right to counsel. Mr. Levy submitted that the police did not act in bad faith, although they did make a “bad” decision.

[8] There is a fine distinction between a poor, good faith decision that leads to a s. 10(b) breach and a good faith, reasonable justification that justifies withholding rights to counsel. The distinction is important. The Applicants challenge the Crown submission that there was no bad faith here: they submit that the evidence shows either after the fact unreasonable attempts to justify the delay in affording them their right to speak to counsel or officer negligence equivalent to bad faith conduct.

[9] In R. v. Griffith, the Court of Appeal discussed justifiable delays in implementing rights to counsel. The court in that case found that the parties proceeded on a mistaken assumption that there had been a s. 10(b) breach. A delay in implementing a detainee’s s. 10(b) rights that is reasonably based on case-specific information, such as officer safety or preservation of evidence, is justified and is not a breach of s. 10(b): see R. v. Griffith, 2021 ONCA 302, 71 C.R. (7th) 239, at paras. 39-41.

[10] Given that the Crown in the case at bar relies on case-specific information to inform and reduce the seriousness of the breach, I consider independently the question of the alleged breach and the evidence of the officers to justify the delay before moving to the s. 24(s) analysis.

The Factual Background to the Application

The Robbery Investigation

[11] On September 25, 2020, at around 1:00 p.m., two young men attacked and robbed a student in view of subway station video cameras at the Victoria Park subway station.

[12] At around 2:00 p.m. that same day, Officer Kapp from the Major Crime Unit at 41 Division began investigating this robbery. He went to the Victoria Park subway station where a TTC special

constable played him the video of the robbery. Officer Kapp took snapshots of the video and distributed it to his team.

[13] As a result of information received from a bus driver and a taxi driver, officers from the Major Crime Unit were sent to the Pharmacy and Lawrence Avenue West area around 5:00 p.m. to look for the robbery suspects.

[14] Just before 5:00 p.m., the officers saw two individuals who matched the description of the suspected robbers outside a bus shelter. These individuals were the Applicants in this matter. The officers arrested the Applicants as well as a third person standing near them at the bus shelter, a man named Raheem Murphy.

The Arrests and Searches

[15] The Applicants were arrested for the robbery. Mr. Murphy was arrested for possession of firearms because of his proximity to the Applicants and because they were found in possession of handguns. On arrest, the officers searched the Applicants and Mr. Murphy. They found a handgun and fentanyl on Mr. Shears-Singh, as well as property apparently belonging to the victim of the robbery. This included his school identification cards, his driver’s licence, a bank card in the victim’s name, and his cell phone. Police also located a quantity of cocaine and fentanyl in Mr. Shears-Singh’s possession.

[16] DC Bowles located the handgun in the waistband of a pair of jean shorts worn by Mr. Shears-Singh under a pair of green track pants. After handcuffing and searching Mr. Shears-Singh, DC Bowles chose to leave him with the track pants down around his shins and sitting on the ground against a fence until the transporting officers arrived approximately 15 minutes later.

[17] DC Bowles testified there was no reason to pull the pants back up. He said that Mr. Shears- Singh was not exposed because he had shorts on and once a gun was found, officers were dealing with a quickly evolving situation. He described the pants issue as “harmless.”

[18] Officers also found a handgun on Mr. Patterson’s person. No weapons or other evidence was found on Mr. Murphy.

[19] Officers discovered that Mr. Murphy lived close by, at a basement unit on Courton Drive. They decided to request a search warrant to search for items connected to the robbery based on his proximity to the Applicants within hours of an apparent robbery that they had committed together.

[20] Following the search, DC Bowles walked the Applicant Mr. Shears-Singh to a police car and read him his right to counsel. The Applicant responded that he wished to speak to duty counsel. DC Bowles told him that a call would be facilitated at the police station. Mr. Shears- Singh was transported from the scene at approximately 5:20 p.m., or approximately 30 minutes after his arrest.

[21] Constables Brayman and Houston transported Mr. Shears-Singh to the station. After booking, Constable Brayman gave Mr. Shears-Singh water and took down the information about the lawyer he wished to call and his mother’s information.

[22] At 7:50 p.m., Constable Brayman relayed the request for phone calls by Mr. Shears-Singh to DC Bowles.

[23] Mr. Patterson was transported by Constables Mercier and Brown. The in-car video was filed on the Application and reveals a conversation with Mr. Patterson in which the officers provide him his right to counsel information. Mr. Patterson asked about legal aid and the constables told him he would have reasonable access to a telephone at the station to speak with a lawyer. The transporting officers did not have any note or recollection of being advised by the detectives that Mr. Patterson’s right to call counsel would be withheld on arrival.

[24] On booking, Mr. Patterson repeated his request to the Staff Sergeant to speak with duty counsel. The Staff Sergeant told him he would be able to speak with a lawyer.

The Decision to Withhold Telephone Calls to Counsel

[25] At the scene, DC Bowles confirmed that he told the transporting police officers that they were not to provide Mr. Shears-Singh with an opportunity to call counsel. The supervisor on scene, DS Kates, confirmed that although he did not make this decision to withhold rights to counsel, he recalled hearing somebody else suggest that rights be withheld. DS Kates agreed that he did not reverse that decision. He testified that he believed this happened due to the “adrenaline” on scene.

[26] DS Kates testified that he had nothing in his notes about that decision, or who made the decision and why. DS Kates said he could not “give a good explanation” about his failure to make a note about it.

[27] The Applicant Mr. Shears-Singh was transported to the police station at around 5:20 p.m. by Officers Brayman and Houston. They arrived at the 41 Division at 5:37 p.m.; but he was not taken into the station until 6:58 p.m., when he was paraded and subjected to a level three strip search.

[28] During his interaction in the car with transporting officer Brayman, the Applicant asked again to call a lawyer. He gave the officer the name of a lawyer, George Tsimiklis. The Applicant also asked to call his mother.

[29] Officer Brayman found the name and number for a lawyer George Tsimiklis. He provided this information to Officer Bowles, who said that the accused would not receive phone calls.

[30] At least two and maybe more members of the team met to discuss the next steps in the investigation. DC Bowles testified that he met with his ranking officer, DS Kates, to plan the search warrant of the Courton Drive residence and advocated withholding rights to counsel until

the search warrant could be executed. DC Bowles did not note the time or any details of this conversation. He did not note which other officers were present, although he recalled that DS Kates was part of that discussion.

[31] Neither DC Bowles nor DS Kates made any notes of this conversation or of when it took place. In his evidence on the Application, DS Kates testified that he had reflected on this decision and concluded, using more colourful language, that this was a poor decision.

[32] Further, despite this decision, although the Applicants’ right to speak to counsel was delayed for over 5 1/2 hours from the time of their arrest, the third detainee, Raheem Murphy, whose residence was to be searched, was permitted to speak to duty counsel at 6:15 p.m. by an officer who was not part of the Major Crime Unit. Mr. Murphy was released without any charges later that evening.

The Evidence of the Rationale to Withhold the Right to Counsel at the Station

[33] DC Bowles testified at the preliminary hearing that the rationale for withholding rights to counsel were for officer safety and to preserve evidence pending the execution of the search warrant at Mr. Murphy’s residence on Courton Drive. The basis for the officer safety concern was that Mr. Shears-Singh had a gun and was wearing a bullet-proof vest. Mr. Murphy was speaking to him in a friendly manner. Thus, DC Bowles’ reasoning suggested that a home associated to a friend of someone with a gun could represent a threat to officer safety if information got out that Mr. Murphy was detained, which might be conveyed if Mr. Shears-Singh spoke to a lawyer.

[34] DC Bowles also testified that it was his practice to delay rights to counsel in cases involving a search warrant for a friend or individual connected to a detainee, or for any home that the detainee had attended in the past. He confirmed that the concern was that any lawyer contacted by a detainee might pass along a message to a third party that could interfere with the police investigation.

[35] At the Application, DC Bowles emphasized the risks around fentanyl as a lethal drug and of handguns to the safety of the community. He agreed that the search warrant in this case was not written to search for drugs or guns, but for property related to the robbery. He agreed there was no evidence to suggest the police would find drugs or guns at the Courton Dr. address.

[36] DC Bowles testified that he did not tell the Applicants that their right to call a lawyer was being delayed or why. He testified he did not believe he had such an obligation, only that it would have been “polite” to have done so.

[37] In contrast, DS Kates agreed that the calls to counsel ought to have happened sooner. He felt that he allowed a bad decision to be made in the aftermath of the roadside arrests. He agreed that some type of “checks and balances” should ensure a similar error is not made in the future. DS Kates expressed regret that his team risked losing what he believed to be a “strong case” due to the poor decision.

Officers Question Mr. Shears-Singh

[38] At some point shortly before 10:50 p.m., DC Bowles and another officer on the team arranged to have Mr. Shears-Singh brought to an interview room. They knew that he had not yet spoken to counsel. Officer Bowles asked the Applicant about the source of the gun. The Applicant did not answer the question. He asked to speak to a lawyer. DC Bowles reported this to DS Kates. At this point, DS Kates decided that the arrestees should be permitted to speak with counsel. DC Bowles testified this was because the search warrant was taking too long to write.

[39] Although DC Bowles acknowledged in his evidence that he knew he was required to hold off questioning about the offence until Mr. Shears-Singh could speak to a lawyer, he relied on the fact that he did not ask questions about the offence of robbery and only about the source of the gun found on Mr. Shears-Singh. He said he was trying to use Mr. Shears-Singh as a confidential source. This was new evidence from DC Bowles: this was not part of his evidence at the preliminary inquiry. He made no notes about this conversation. Although the conversation took place in a room with audiovisual capacity, he did not activate the audio recording.

[40] In examination, DC Bowles denied that Mr. Shears-Singh might have responded to the question about the gun in a way that could have implicated him in other criminal activity. He rationalized that since they already had the gun, the question of its source could not have further incriminated Mr. Shears-Singh. He was asked by Crown counsel what he would have done if Mr. Shears-Singh had answered the question and told him he had more guns in his possession. DC Bowles responded that he would not have used that information and he was not asking about any other guns. Later in his evidence, he agreed that if he received usable information, he would consult with his ranking officer and investigate the matter, although he believed that this information could not have been used against Mr. Shears-Singh.

The Search Warrant is Submitted

[41] A junior member of the team, Detective Constable Kovic, volunteered to write the information to obtain the search warrant (ITO) for the Courton address. DC Kovic testified that he believed he started drafting the ITO at 8:18 p.m. after he completed other duties, such as collecting shoes from the Applicants for evidence.

[42] At 11:53 p.m., DC Kovic submitted the information to obtain the search warrant for the Murphy residence on Courton Drive. He received a response within three minutes and after adding some additional information to justify executing the warrant at night, the warrant was signed by 12:39 a.m. His submission was marked “URGENT.” As the affiant, DC Kovic believed the urgency flowed from the need to execute the warrant prior to the bail hearing for the Applicants on the following day and their potential release. He identified a concern for the potential loss of evidence. Although he testified that he overheard some information about withholding rights to counsel, he did not connect that decision to time pressure in completing his paperwork for the warrant. He testified that he had nothing to do with that decision and that he had “no idea” about withholding rights to counsel.

[43] By the time the warrant was finalized, the team had decided that Mr. Murphy was going to be released without being charged. The things to be searched for in the warrant were items related to the robbery: jewelry and a satchel belonging to the victim, and clothing thought to have been worn by the suspects.

[44] Although DC Bowles had testified that withholding rights to counsel was connected to the search warrant and the inherent dangerousness of firearms and fentanyl, the information to obtain the warrant did not include either firearms or controlled substances.

Rights to Counsel are Implemented for the Applicants

[45] Both Applicants had calls to counsel placed on their behalf before the search warrant paperwork was completed and submitted. Those calls were made at 10:50 p.m. on September 25, 2020, just over 5 1/2 hours after their arrest.

[46] Mr. Shears-Singh spoke with counsel on a return call received at the station at 11:32 p.m. Mr. Patterson spoke with duty counsel at 10:50 p.m.

Officers Execute the Search Warrant at Courton Drive

[47] On September 26th, 2020, at 1:15 a.m., the team of officers executed a Criminal Code search warrant at the basement unit at Courton Drive. Officers located pants and a red satchel allegedly worn by the suspects during the robbery. Officers also located the victim’s identification and a Puma satchel that belonged to the victim. Police did not locate any firearms in the residence, although they did find some ammunition, which was seized and destroyed.

ANALYSIS OF THE SECTION 10(b) and SECTION 24(2) ISSUES

Legal Framework: The Section 10(b) Right to Counsel

The Nature of the Section 10(b) Right to Counsel: State Control, Vulnerability and Fair Treatment of Detainees

[48] Section 10(b) of the Charter guarantees to anyone arrested or detained the right “to retain and instruct counsel without delay and to be informed of that right”. The purpose of this right is to make sure that people arrested or detained know that they have a right to counsel, and have access to it, in situations where they suffer a “significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy”: R. v Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras 40; R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613, at pp.

641-42, and R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173.

[49] In Suberu, the Supreme Court underlined that this state of vulnerability begins from the moment of detention. Accordingly, “without delay” in s. 10(b) means “immediately”: Suberu, at paras. 38, 42; Bartle, at pp. 191-92; R. v. Taylor, 2014 SCC 50, [2014] 2 SCR 495, at paras. 20-26.

[50] The exceptions to the duty to provide the right to counsel “immediately” is in cases involving officer safety or public safety, or other limitations as prescribed by law: see Suberu, at para. 42. In R. v. Strachan, 1988 25 (SCC), [1988] 2 S.C.R. 980, for example, a two-hour delay was justified in a situation where the police were executing a search warrant in a potentially volatile situation involving firearms.

[51] In R. v. Wu, 2017 ONSC 1003, 35 C.R. (7th) 101, Di Luca J. reviewed the caselaw and compiled a list of situations where the courts may countenance delaying the implementation of the right to counsel, including where:

i. There are safety concerns for the police: see Suberu, at para. 42; R. v. Grant, 2015 ONSC 1646, at para. 107, R. v. J. (J.), 2010 ONSC 735, at paras. 276-278, and R.

v. Learning, 2010 ONSC 3816, at para. 75;

ii. There are safety concerns for the public: see Suberu, at para. 42; R. v. Thind, 2011 ONSC 2054, at paras. 113-15 and 122;

iii. There are safety concerns for the accused:, see R. v. Strehl, 2006 39572 (Ont. S.C.), 2006 CarswellOnt 7495, at para. 4;

iv. There are medical concerns: see R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429,

at para. 8 and R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 31;

v. There is a risk of destruction of evidence and/or an impact on an ongoing investigation (although right to counsel cannot be suspended simply on the basis that a search warrant is pending): see R. v. Rover, 2016 ONSC 4795, at paras. 66, 70, R. v. Kiloh, 2003 BCSC 209, at paras. 15, 38, R. v. Salmon, 2012 ONSC 1553,

at para. 92; R. v. Soto, 2010 ONSC 1734, at para. 69, and R. v. Liew, 2012 ONSC 1826, at para.70;

vi. There are practical impediments to implementation, for example, where privacy cannot be given to the detainee, there is a need for an interpreter or the arrest happens at a location without telephone access: see R. v. J. (K.W.), 2012 NWTCA 3, at paras. 29-30, and R. v. Khairi, 2012 ONSC 5549.

See Wu, at para. 78.

[52] Where the authorities decide to suspend a detainee’s right to counsel, this decision must be communicated to the detainee: Rover, at para. 70.

[53] In Bartle, Lamer C.J.C. wrote for the majority that the right to counsel in s. 10(b) is “designed to ensure that persons who are arrested or detained are treated fairly in the criminal process”: at para. 17.

[54] In the case at bar, this physical and legal vulnerability referred to by the Supreme Court is demonstrated by the arrest of the Applicants by the Major Crime Unit team. The officers took the Applicants to the ground, handcuffed and searched them, and took them to the police station. Mr. Shears-Singh awaited transport with his long pants pulled down around his shins after officers found contraband, including a handgun, in the waistband of his shorts worn under his pants. Both were subjected to strip searches at the station and put in holding cells. Although both were told more than once post-arrest that they would be able to speak with a lawyer, instead they were housed in holding cells for closer to six hours. They were not told why this was happening.

[55] In R. v. Burlingham, 1995 88 (SCC), [1995] 2 SCR 206, a majority of the SCC adopted the concern expressed in MacEachern J.A.’s dissenting opinion at pp. 367-378:

The s. 10 Charter rights of detained persons who have elected to exercise their constitutional rights to retain and instruct counsel would be seriously compromised if police officers having complete control over such persons, should seek ... directly or indirectly, to disregard or act contrary to the advice they have received: at para. 17 (emphasis added).

[56] The importance of the right to speak to counsel on arrest is captured by this observation from the Court of Appeal for Ontario in R. v. Rover:

The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain not only legal advice and guidance about the procedures to which they will be subjected but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated: Rover, at para. 45.

[57] There is no doubt that here, the Applicants were within the “complete control” of the police from the time of their arrests in the late afternoon until they first spoke to counsel, over 5 1/2 hours later, late in the evening.

The Well-settled Components of the Section 10(b) Right to Counsel

[58] The Charter’s s. 10(b) guarantee imposes three obligations on the police:

i. Informational: that is, to inform the person arrested or detained of their right to speak to a lawyer, including the availability of free legal advice;

ii. Implementational: if a detainee chooses to exercise their s. 10(b) right by contacting a lawyer, and does not unequivocally waive their right

to speak with counsel, the police must provide the detainee with a reasonable opportunity to exercise the right; and

iii. Implementational: the police must refrain from eliciting evidence from the detainee until they have had that reasonable opportunity to speak to a lawyer.

[59] This is well-settled law. In 1990, the Supreme Court of Canada reinforced its clear direction to police forces that the right to facilitate contact with counsel is part of the “fair treatment” of an accused person: see R. v. Brydges 1990 123 (SCC), [1990] 1 S.C.R. 190, at para. 13. The right is only effective if it is carried out before an accused person is “questioned or otherwise required to provide evidence”:

R. v. Manninen, 1987 67 (SCC), [1987] 1 S.C.R. 1233, at para. 23.

[60] This right was not new to Canada with the enactment of the Charter of Rights and Freedoms in 1982. The right to be informed of one’s right to counsel and to retain and instruct counsel without delay on arrest or detention was part of Canada’s Bill of Rights when it first received Royal Assent on August 10, 1960: Canadian Bill of Rights, R.S.C. 1970, App. III.

[61] Several generations of Canadian police officers have been obliged to inform detainees of their right to retain and instruct counsel without delay on arrest. It is a fundamental right, linked to trial fairness. It is intrinsically connected to the investigation and successful prosecution of criminal offences.

[62] Recently, in R. v. LaFrance, 2022 SCC 32 the majority of the Supreme Court of Canada referred to the s. 10(b) right as the “single most important organizing principle in criminal law”: LaFrance, at para. 97, citing R. v. P. (M.B.), 1994 125 (SCC), [1994] 1 S.C.R. 555, at p. 577.

Were the Applicants’ Section 10(b) Rights Breached by the Decision to Withhold the Right to Counsel?

[63] The supervisor of the team responsible for the arrest, DS Kates, acknowledged that the apparent justification for holding off rights to counsel was “ridiculous.” As the supervisor of this team, he reflected on how a faulty decision came to be made and acknowledged that it was a faulty decision. During his evidence, DS Kates volunteered this evidence:

Yes, I do and I still have the same viewpoint because ultimately now I -- being able to reflect back after the-- especially after the preliminary, counsel I'm gonna be quite frank, it was a boneheaded decision. I'll even say as far, it was a stupid decision. It was my fault, because I should have taken a step back and let the adrenaline after the arrest kind of leave my body and focus on the here and now, but I didn't and that's my fault. So, ultimately, as the being the team boss

I should've-- just should've focused on the car in front of me and not the traffic ahead, my fault.

[64] I asked DS Kates to clarify what he meant by a “decision” given his evidence that he did not make the decision to withhold rights to counsel. This exchange follows:

THE COURT: I -- I just needed to clarify while you're on that point, counsel, if I may? I was making notes of what you just said, Detective Kates, about should've stepped back, let the adrenaline subside after the arrest, you described your decision as “boneheaded” to use your word, can you just clarify what decision that is that you feel was a “boneheaded” decision to use that word?

THE WITNESS: Yes, thank you, Your Honour. A decision was made roadside that -- what I can recall but of course I didn't articulate it, was when the -- when the three gentlemen were transported to the station, our focus was to be on the search warrant and to hold their calls off for a couple of hours until we could draft our search warrant as looking ahead so as not to lose any evidence. Now of course I've had time to reflect on this and it was -- just -- it was ridiculous, but it was done so I mean, I have to own up to it because ultimately I'm the team boss.

[65] In this case, the charges were serious: robbery of a fellow citizen, the discovery of loaded handguns on both Applicants, and fentanyl in the possession of Mr. Shears-Singh. In contrast to DS Kates’ evidence assuming responsibility for the poor decision he felt the team had made, DC Bowles implied in his evidence that these features might excuse reducing the Charter rights of the Applicants.

[66] The seriousness of the offence is no justification for failing to provide right to counsel. To the contrary, where serious offences are involved, there is arguably a greater need for careful attention to the Charter rights engaged by arrest or detention because of the greater consequences and legal jeopardy, increased dedication of public resources and the potential for damage to the confidence of the public in the administration of justice if those involved do not carry out their well-known and significant duties competently: see Brydges, at p. 211; Burlingham, at para. 50;

R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, at para. 50.

The Breach of the Applicants’ Section 10(b) Rights

[67] Here, the Applicants submit, and the Crown acknowledges, that the officers of the Major Crime Unit of 41 Division breached the implementational component of the Applicants’ s. 10(b) rights. All counsel submitted this was the case and Crown counsel did not dispute the breach.

[68] I agree with counsel. The justifications offered by DC Bowles were not rationally connected to the case-specific information here. There was no question of drugs or guns being the targets of the search and thus public safety or officer safety were not available as a justification for delay. The destruction of evidence was likewise not a real concern, given the responsibilities of counsel as officers of the court, and there was no suggestion that the calls would necessarily lead to interference with the search warrant execution.

[69] Further, the reality that the Applicants were allowed to speak with counsel before the search warrant was finalized or executed completely undercuts this justification.

[70] The team supervisor, DS Kates, whose evidence on this point I accept, agreed that it was not a well-thought-out decision. It took place in the immediate aftermath of an arrest when emotions and adrenaline were running high.

Should the Evidence Collected in the Circumstances of a Section 10(b) Charter Breach be Excluded by Operation of s. 24(2)?

Causation/Proximity of Evidence Collection to a Charter Breach: The Law on this Point and the Grant Test

[71] Here, the evidence was discovered arising from the lawful arrest of the Applicants. The Charter breaches happened later that evening. During the initial search incident to the arrests, the police officers seized a handgun from each of the two Applicants. From Mr. Shears-Singh, they seized a quantity of controlled substances and property belonging to the victim of the robbery.

[72] The Applicants may seek relief under s. 24(2) for the breaches of their Charter rights during their detention and after the discovery of these items of evidence against them. Charter relief does not depend on a direct cause and effect relationship between the breach and the seizure of incriminating evidence: Strachan; Brydges, at p. 210.

[73] The connection between the breach and the collection of evidence may be temporal, contextual, causal or a combination of the three. The interpretation of the words “obtained in a manner” found in s. 24(2) of the Charter should be generous and consistent with the purpose of

s. 24(2): R. v Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at paras 50-56; R. v Wittwer, 2008 SCC

33, 2008 SCC 33, [2008] 2 S.C.R. 235, at para 21; R. v. Hobeika, 2020 ONCA 750, 153 O.R. (3d) 350.

[74] Here, there was a temporal and contextual relationship between the arrests, the searches, the seizures, and the detentions without implementation of an important right: the right to speak to counsel immediately on arrest and detention as guaranteed by s. 10(b) of the Charter.

Applying the Grant Test to the Case at Bar

[75] Defence counsel submitted and Crown counsel acknowledged that the first branch of the

Grant test in this case favours exclusion. I agree. The length of time, the apparent indifference to

the substance of the rights, the lack of any justification specific to this case, and the aggravating features which I reviewed above all contribute to a finding that this was a serious violation.

[76] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 and the companion case of R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, the Supreme Court of Canada established a new framework for the Charter relief permitted under s. 24(2) of the Charter.

[77] The test in Grant requires the court to balance the effect of admitting the evidence with society’s confidence in the justice system having regard to three factors:

i. The seriousness of the Charter-infringing state conduct

ii. The impact of the breach on the Charter-protected interests of the accused

iii. Society’s interest in the adjudication of the case on its merits

The seriousness of the Charter-infringing state conduct

[78] Under this first factor, the court must consider whether the police conduct is sufficiently serious that a court will be concerned and seek to disassociate itself from that conduct. The court may wish to avoid sending the message that the justice system condones state misconduct.

[79] In Harrison, the Supreme Court contrasted cases in which the authorities depart from Charter standards in a way that is “major in degree” or where the police knew (or should have known) that their conduct was not compliant with the Charter. Such breaches are more serious, while “technical” breaches, or breaches arising from an “understandable mistake” do not attract the same level of concern on the part of the court: Harrison, at para. 22.

[80] More recently, the Supreme Court has confirmed that although good faith errors may be found to be reasonable, police negligence in meeting Charter standards is not the same thing as good faith. If the police clearly violate well-established rules, this is likely to warrant exclusion of the evidence: Paterson, at para 44.

[81] Here, the Applicants submit that the state conduct was serious. Crown counsel did not dispute that these were serious violations and that there were several aggravating features that increased the seriousness of the violations.

[82] I agree. There were four aggravating features connected to the control exerted over the Applicants and the consideration given to the nature of that control and the obligation to implement the right to counsel by the officers who made these decisions, which make the violations serious.

[83] Aggravating feature #1: The questioning of the Applicant Mr. Shears-Singh before he could call a lawyer: The police are obliged to hold off questioning a detainee before they have a chance to speak with counsel. The question of the source of the firearm which was put to Mr.

Shears-Singh by the officers failed to respect this part of the implementational right under s. 10(b). Crown counsel did not seek to justify this for any of the reasons provided by DC Bowles. I agree with that assessment.

[84] Aggravating feature #2: The failure to advise of reason for withholding and the evidence from DC Bowles that he did not need to. The evidence from DC Bowles, who apparently drove the decision to withhold rights to counsel, displayed a lack of Charter competence or an indifference to the law that requires officers to advise a detainee if their rights are being withheld and why.

[85] DC Bowles’ understanding of his Charter obligations was further limited by his failure to know that he had a duty to advise the Applicants of the withholding of their rights and the reason for that. This was recent law, from the Court of Appeal for Ontario. It ought to have been known by officers responsible for investigating criminal offences.

[86] Aggravating feature #3: The officers involved with the decision making, supervision and implementation of the s. 10(b) rights failed to keep even minimal notes about the decision, the timing and rationale for the decision or for the decision to change course. It appears that if there was some notion that the search warrant had to be obtained first before implementing rights to counsel, any urgency or need to accomplish this in a timely way was not shared with the affiant. This is astonishing if this was a legitimately held (but erroneous) belief.

[87] The Supreme Court of Canada has considered the role of note taking in policing and has described the importance of making notes to the criminal justice system as “obvious”: Wood v. Schaeffer, 2013 SCC 71, [2013] 3 S.C.R. 1053, at para. 66.

[88] In R. v. Jama, Trotter J., (as he then was), referred to the importance of recording all interactions with an accused person in the context of a voluntariness voir dire. There was simply no reliable record, leading Trotter J. to describe the police evidence as “general, impressionistic and in the gist”: R. v. Jama, 2017 ONSC 470, at para. 67; see also in a slightly different context (video recording of a statement to the police) R. v. Moore-McFarlane (2001), 2001 6363 (ON CA), 160 C.C.C. (3d) 493 (Ont. C.A.), at p. 517.

[89] Trial courts have pointed out that police witnesses risk adverse findings of credibility where their notes are missing material information concerning their investigations: see R. v. Odgers, 2009 ONCJ 287; R. v. Bero, 2014 ONCJ 444, at para. 54.

[90] When it comes to the decision to withhold right to counsel, a fundamental, well-known and long-standing obligation, the choice by these officers to omit their thinking and decision making from their notes is concerning. Given the importance of the right to counsel and its potential impact on prosecutions, this was a serious omission on the part of the members of this team.

[91] Police officers have powers that are not available to average members of the public. They are expected to use those powers in the public interest, including demonstrating an understanding of all aspects of the job, even those they may not intuitively embrace given the front-line exigencies

to which they are exposed. This serves the community, the administration of justice and the officers themselves who may be challenged, months later, to justify their use of their powers over other members of the community. Although they are professional witnesses, police officers are not immune to the discomfort of testifying in formal proceedings. It is hard to own up publicly to mistakes and tempting to gloss over or rationalize mistakes.

[92] I give DS Kates credit for his candour, because doing so meant he had to grapple with his role in a denial of rights in a serious prosecution. This three-day Application could have been shortened or avoided for the less than 10-15 minutes it might take for each officer involved to consider, note, and decide how and when to grant rights to counsel in the aftermath of their arrest, to debrief and draw on the knowledge of their experienced supervising officer, and to manage the adrenaline that is no doubt a part of any arrest that is chaotic or involves weapons. The community needs to know that police are trained to do their job and show Charter competence consistently and in accord with these principles.

[93] Crown counsel conceded that this Application could have been shortened or avoided if the officers had noted the details of the decision to withhold rights to counsel. This ought to have included who made the decision, when the decision was made, and who from the team was present for that discussion. Taking the time to do so would have cooled down the impulsive decision made in the adrenaline rush of an arrest that uncovered two guns. It would have provided an opportunity for this team to identify any gaps in the rationale for denying an important Charter right.

[94] Such a requirement is not onerous. This is especially so in light of the importance of this constitutional imperative. It protects those who are arrested, and it protects officers. Adequate notetaking means that investigating officers will be able to demonstrate Charter adherence in later proceedings. More broadly, it is a matter of police competence, ensuring the integrity of their investigations and fulfilling their responsibilities to the community.

[95] Aggravating feature #4: The state of undress in which Mr. Shears-Singh was left to await transport after he was handcuffed and searched. While leaving his long pants down around Mr. Shears-Singh’s shins can fairly be described as subtly demeaning, or a minor humiliation, a minor humiliation is still a humiliation. As easy as it is to pull down a pair of pants to complete a roadside search, it is easy to pull them back up once the search is complete and any safety risks have been addressed.

[96] This issue was argued as a s. 8 Charter breach informing the s. 10(b) breach experienced by Mr. Shears-Singh. Ms. Wyszomierska submitted that s. 8 of the Charter was engaged when the officers arrested, handcuffed, and searched her client’s long pants and shorts, and then unnecessarily left him sitting on the ground for 15 minutes with his pants down around his shins next to a busy street. Further, Ms. Wyszomierska submits that the context is important: her client is a young Black male, a group recognized by the Supreme Court of Canada, as being overrepresented in the criminal justice system and disproportionately subject to differential treatment by police authorities: see R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 90.

[97] In Le, the Supreme Court cited a 2018 report of the Ontario Human Rights Commission, a seven-year qualitative and quantitative analysis of the experiences of the Black community with policing. That report revealed experiences that “contributed to feelings of fear/trauma, humiliation, lack of trust and expectations of negative police treatment”: Le, at para. 93.

[98] The officers who testified before me were white. The three detainees were young black men. An attempt to put this context to one of the officers during cross-examination led the witness to accuse counsel of asking him an “ignorant” question. This answer revealed that the officer was unprepared to consider or unaware of issues of potential implicit bias, despite the well-documented history in Canada of differential, disproportionate levels of incarceration, violence and trauma experienced by members of the Black community in their contacts with police services.

[99] “Members of racial minorities have disproportionate levels of contact with the police and the criminal justice system in Canada (R. T. Fitzgerald and P. J. Carrington, “Disproportionate Minority Contact in Canada: Police and Visible Minority Youth” (2011), 53 CJCCJ 449, at p. 450). In 2003, the Ontario Human Rights Commission (“OHRC”) issued a report titled Paying the Price: The Human Cost of Racial Profiling (online). The OHRC summarized then existing research studies, which established that racial minorities are both treated differently by the police and that such differential treatment does not go unnoticed by them”: Le, at para. 90.

[100] In submissions, Ms. Wyszomierska submitted that the way her client was required to wait for several minutes’ roadside is part of the overall context of how he was treated. Crown counsel submitted that there was nothing improper in any of this: Mr. Shears-Singh had a gun, wore body armour and his search was required to be done immediately. Within 15-20 minutes, his pants were pulled back up. There was commotion at the time, and fair concern by officers on scene for safety. The Crown submits this marginal state of undress, after a search conducted otherwise reasonably and which netted a handgun, should be “taken off the scale.”

The impact of the breach on the Charter-protected interests of the accused

[101] This aspect of the Grant test requires that I consider how the breach affected the Applicants. Did the breach seriously compromise the interests underlying the right(s) infringed? Or was the breach merely transient or trivial in its impact?

[102] Both Applicants were told more than once that they would be able to use a phone at the station to speak to a lawyer. When the police team decided not to give them that right, they were not told that it was being withheld, or why. Their circumstances were like those described by Laskin, J. in R. v. Pino:

Being forced to sit alone in a jail cell for over five hours after her arrest without access to counsel undermined the very interests s.10(b) seeks to protect: correct information about the right to counsel and the immediate ability to consult with a lawyer. Ms. Pino was vulnerable and she needed counsel, not just for legal advice, but as a lifeline to the outside world: Pino, at paras 50-56.

[103] Laskin, J.A. in Pino reviewed the “generous and broad approach” to the manner of obtaining evidence referred to in s. 24(2) -- the “obtained in a manner” requirement -- an approach that looks to the overall purpose of the section and whether admission of the evidence would bring the administration of justice into disrepute. This includes a Charter breach which continues after the evidence is discovered: Pino, at para. 58, citing R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689.

[104] I conclude that the police decision to hold the two youthful Applicants in custody without explanation or access to counsel, having told them they had that right, can reasonably be said to have had a serious impact on their psychological well-being.

[105] In a recent case where officers strip searched an arrestee, in part due to his non-response to their questions and before he could exercise his rights to counsel (which he clearly asserted), the Court of Appeal observed that the failure to hold off questioning amounted to a “serious violation” of the accused’s Charter rights: R. v. Mohamed, 2022 ONCA 117, 78 C.R. (7th) 54, at para. 24.

[106] In another recent decision from the Court of Appeal for Ontario, a four-hour, unjustified delay in affording a detainee his right to speak with counsel led the court to observe that this reflected a “troubling police indifference” to the rights of the detainee. “This was a clear violation of a long-established and well-understood constitutional obligation”: Hobeika, at para. 81.

[107] The parties agree that the impact on the Applicants was serious and that the second branch of the Grant test favours exclusion. I agree.

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

[108] Society has a compelling interest in the adjudication of criminal cases on their merits. However, as Doherty J. observed in R. v. McGuffie, “if the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility”:

R. v. McGuffie, 2016 ONCA 365 at para 63; see R. v Coté, 2011 SCC 46, [2011] 3 S.C.R. 215, at

para 48, Mohamed, at para. 27.

[109] In the 2017 SCC case of R. v. Paterson, the majority of the Supreme Court reinforced the importance of not allowing the third Grant factor to overshadow all other considerations, particularly where the police misconduct is serious and had a substantial impact on the appellant’s Charter right: Paterson, at para. 56.

[110] Here, Crown counsel submits that this is one of the rare cases in which the third inquiry does tip the balance in favour of admissibility because the Charter breaches were not the source of the incriminating evidence, the evidence is real and reliable, and it involves serious criminality: possession of loaded firearms and of fentanyl in the case of the Applicant, Mr. Shears-Singh.

[111] Crown counsel also relies on a recent decision reversing the Court of Appeal and restoring the decision of the trial judge to include the evidence of a firearm found during a street stop. The

Supreme Court of Canada approved the dissent in R. v. Omar, 2018 ONCA 975, 144 O.R. (3d) 1: 2019 SCC 32, [2019] 2 S.C.R. 576. That dissent focussed on the following features in finding that the gun in question should not be excluded from evidence:

• the trial judge made a finding of fact that the Charter breach was less serious, and favoured admission: Omar (ONCA), at para. 71;

• the trial judge found the officers did not behave in an abusive fashion:

Omar (ONCA), at para. 101;

• the trial judge found the officers had a subjective belief that they were not detaining Mr. Omar: Omar (ONCA), at para. 101;

• the context was that of a street level encounter and a legal context involving the boundary between questioning and detention: Omar (ONCA), at paras. 82-97.

[112] The facts in Omar are distinguishable. In contrast to that decision, here, I have made a finding and it is undisputed by the parties, that the Charter breach was serious and favoured exclusion. I have found that the officers were abusive by failing to tell the Applicants over 5 1/2 hours they were being held without communication to the outside world, that this was being done for a reason. Unlike in Omar, which was a street detention, here the detainees were clearly detained and held in cells inside a police station. The law is clearer here than in the case of street level encounters as was the case in Omar.

[113] As the court said in R. v. Noel, 2019 ONCA 860, I am mindful of the impact of excluding necessary, reliable evidence in a serious prosecution. Unlike LaFrance, in which the s. 10(b) breach was linked to extracting a confession to murder, here the arrests were lawful, the searches yielded real evidence and the Charter breaches accompanied the investigation but did not precede the evidence.

[114] However, as the court also found in Noel, “this was a clear violation of a well-established rule.” The police ought to have carried out their obligations and their failure to do so was not justified. As the Court of Appeal concluded on the facts before them in Noel, I likewise conclude that to allow this evidence to be admitted would be to condone the heedlessness and lack of leadership displayed by the officers responsible for this investigation in ignoring the s. 10(b) Charter rights of the Applicants: Noel, at paras. 34-35.

[115] In the recent decision of the Supreme Court of Canada in LaFrance, in discussing the third component of the Grant test, the majority cited Le on the importance of avoiding “judicial condonation of unacceptable conduct by the investigatory and prosecutorial agencies”: LaFrance, at para. 98, citing Le, citing in turn Collins, at p. 281.

[116] I conclude that the Applicants’ s. 10(b) Charter rights were infringed following their arrest on charges of robbery and possession of firearms and drugs and property obtained by crime. These were serious breaches of longstanding Charter obligations, aggravated by the attempt to question one of the Applicants, a casual approach to the decision making and the length of time the Applicants were held in cells without any communication to the outside world.

CONCLUSION

[117] Having found that the Applicants’ rights under s. 10(b) of the Charter were breached, and pursuant to s. 24(2) of the Charter, I allow the Application.

[118] I exclude the evidence obtained from the Applicants following their arrest on September 25, 2020.

Released: July 29, 2022

COURT FILE NO.: CR-22-30000105-0000

DATE: 20220729

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

AYMIN SHEARS-SINGH and KEYSEAN PATTERSON

REASONS FOR DECISION ON AN APPLICATION UNDER SS. 8, 10(B) AND 24(2) OF THE CHARTER OF RIGHTS AND FREEDOMS

Leiper J.

Released: July 29, 2022