COURT FILE NO.: CR-22-90000013-0000
DATE: 20220912
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
DARIUS NGUYEN & MICHAEL NGUYEN
Anna Martin and Leanne Siu, for the Crown
Craig Bottomley, for Darius Nguyen
John Struthers and Ashli Pinnock, for Michael Nguyen
HEARD: June 6, 7, 8 ,9, 10, 2022
R.F. GOLDSTEIN J.
[1] On August 6, 2020, the Major Projects section of the Toronto Police Drug Squad investigated Darius Nguyen. A source handler gave DC Swart info about him. The handler told DC Swart that he or she had information from a reliable source that Darius Nguyen was trafficking in controlled substances; that he may reside in the area of Bathurst and Front Streets in Toronto; and that he drove a Toyota Rav 4 with a licence number of CLMY 333 (which I will refer to as 333). On August 6, 2020, DC Swart and members of his team were around Bathurst and Front. They found 333. It was parked in the private area of a condominium. Another Toyota Rav4, with licence number of CHXX 072 (which I will refer to as 072) was parked beside it. Officers commenced observations. They observed Darius Nguyen and another man – Michael Nguyen – putting bags into both vehicles. The two men then got into 072 and took a short ride in the area. They drove two different loops around the block. Police officers observed them as they drove. Michael Nguyen and Darius Nguyen then returned to the same parking spot. The officers concluded that the driver and passenger of 072 had engaged in counter-surveillance. The officers then observed Darius Nguyen and Michael Nguyen load more bags into at least one of the vehicles. DC Swart decided to arrest the two men and search the vehicles. The police discovered 18 kilograms of cocaine, 7 kilograms of crystal meth, and over $200,000 in cash in one of the vehicles. Darius Nguyen was carrying a key fob for Unit 1512, 27 Bathurst Street. DC Swart and Det Awad entered that unit based on exigent circumstances to clear it. The police later executed a search warrant at the unit, although the Crown is not tendering any seized evidence. Darius Nguyen and Michael Nguyen now face charges of possession of cocaine and possession of methamphetamine for the purpose of trafficking, and possession of the proceeds of crime.
[2] Mr. Bottomley and Mr. Struthers, for Darius Nguyen and Michael Nguyen, respectively, applied to exclude the seized drugs and cash from evidence at the trial. The defence argued that the police committed several Charter violations:
• The police violated s. 8 of the Charter by spying on and filming the two men in an area where they had a reasonable expectation of privacy;
• The police violated s. 10(b) of the Charter by arresting Darius Nguyen on private property, failing to facilitate a call to counsel for some three hours, by directing Darius Nguyen to duty counsel rather than counsel of choice, and by asking if Darius Nguyen wished to make a statement prior to facilitating a call to counsel;
• The police violated s. 8 of the Charter by conducting a warrantless search of a dwelling house; and,
• The police violated s. 9 of the Charter by arresting the two men without reasonable and probable grounds.
[3] Mr. Bottomley and Mr. Struthers argue that admission of the drugs and cash would bring the administration of justice into disrepute. The evidence should be excluded.
[4] I agree with defence counsel that the police did violate the s. 10(b) Charter rights of both Darius Nguyen and Michael Nguyen. With great respect to Mr. Bottomley and Mr. Struthers, who, in their usual way, made compelling and skillful arguments, I disagree that the police committed other Charter violations. The police did not violate s. 8 of the Charter when they made observations into the residential parking lot. They had reasonable and probable grounds to arrest Darius Nguyen and Michael Nguyen. Exigent circumstances existed upon which the police had authority to enter Unit 1512, 27 Bathurst Street.
[5] Notwithstanding the violations of s. 10(b) of the Charter, I find that the administration of justice would not be brought into disrepute if the drugs and cash were admitted into evidence.
[6] On June 28, 2022, I dismissed the application with reasons to follow. These are my reasons.
BACKGROUND
[7] The preliminary inquiry transcripts of DC Chant, DC Benevides, DC Cilia, DC DeSousa, DC Chase, DC Swart, Detective Awad, and DC Neath were filed as part of the application record. DC Chase, DC Benevides, Sgt Morris, and DC Swart testified before me on the application.
Police Receive Information About Darius Nguyen; They Commence An Investigation
[8] In August 2020 DC Swart was an investigator with the Major Projects Section of the Toronto Police Drug Squad. Major Projects handled commercial drug dealing of hard drugs (fentanyl, cocaine, heroin, methamphetamine) at the kilo level and up. Prior to August 6, 2020, an informant handler passed on some information to DC Swart. The handler told DC Swart that a reliable confidential source had informed him that Darius Nguyen distributed controlled substances and might live in the area of Bathurst Street and Front Street, in Toronto. The handler also provided information regarding Darius Nguyen’s car (the Toyota Rav4 licence 333 that I have previously referred to). DC Swart ran the plate with the Ministry of Transport and obtained an address of 5 Agate, Unit 611. He created a profile sheet with Darius Nguyen’s name, date of birth, address, and vehicle information. He obtained that information, as well as his eye colour and height, from the Ministry database. He had no other information about Darius Nguyen.
[9] On August 6, 2020, DC Swart briefed his team. The target was Darius Nguyen. DC Swart provided members of the team with the profile sheet. The plan was to locate 333 and conduct surveillance on Darius Nguyen. There was no plan to conduct a take-down that day.
Police Set Up In The Area Of Bathurst And Front; Locate Darius Nguyen’s Toyota Rav4; Police Seek Authorization To Enter The Condominium Complex
[10] After the briefing, DC DeSousa went to the area of Bathurst and Front to look for the vehicle. He started at 576 Front Street. The underground parking serves multiple condos in the area, including 576 Front Street and 27 Bathurst Street. The entrance was on the east side of the complex through a public parking area that leads ultimately to the residential parking as well. He parked but did not pay for a ticket. At about 9:30 am DC DeSousa made observations of the P2 level of the condominium complex from the public access parking area. There was an overhead door leading from the public access parking to the residential parking. 333 was parked just inside the residential parking area. DC DeSousa testified that there were about 50 public parking spots on each of P1 and P2. DC Sousa informed his team where he had found 333.
[11] DC Sousa informed his team where he had found 333. He then went to the condominium management office. He spoke to the property manager. He advised her that he was a police officer and they were conducting an investigation. He asked her to sign a consent authorizing the police to be on the common areas of the condo complex. The property manager stated that she did not have authority to sign the letter and would have to consult the board of directors. He then went with the property manager to the parking area so she could figure out which building 333 belonged to. DC DeSousa went back to the public access lot to continue his observations. He waited for the authorization but never received it. That was the only time he went into the private area.
Darius Nguyen And Michael Nguyen Arrive In Michael Nguyen’s Toyota Rav 4; They Load Bags Into The Vehicles
[12] DC Chant arrived in the area of 576 Front Street just after noon. He entered the parking garage. He described it as part controlled, part uncontrolled. Anyone could access the uncontrolled part, or as I will refer to it, the public access part. He entered the public access part. A chain link fence separated the residential part from the public access part. Anyone in the public access part could observe the residential part of the garage. A team member directed him to observe 333. It was in the residential part, but DC Chant was able to observe it from the public access part. He observed it through the chain link fence. At about 1:24 pm he observed 072 enter the controlled parking garage near the door. It parked directly beside 333. Darius Nguyen appeared to be the passenger. He and the driver – subsequently identified as Michael Nguyen – got out of 072 and walked to the elevator lobby. DC Chant took an 18 to 20 second video of the two walking from 072 towards the elevator lobby. DC Chant was told that he had permission from property management to be in the garage. He did not go into the controlled part until Darius Nguyen and Michael Nguyen were under arrest. He did not purchase a ticket for the public access part.
[13] DC Swart also entered the public access area of the garage and made observations. He observed Darius Nguyen and the other male – Michael Nguyen – pushing a dolly towards the vehicles. They were in the residential portion of the lot, but he could see them from the public access portion. There were several gym bags and a black suitcase. Darius Nguyen and Michael Nguyen then loaded the bags into both 333 and 072. He made a video but 333 was just out of his view. DC Swart could not say which bags went into which vehicle. He videotaped it because he had a clear view and felt that really anyone could see. He could see that the bags had weight to them. There was a grey bag that appeared to be extremely weighted. DC Swart felt that the bags could have indicated that the location was a stash house or that they were moving the bags for a deal. He also did not purchase a ticket for the public access part of the garage.
Darius Nguyen And Michael Nguyen Drive Around The Block In Michael Nguyen’s Toyota Rav 4; Police Observe Countersurveillance
[14] DC Swart observed the Darius Nguyen and the male later identified as Michael Nguyen get into 072 at 2:56 pm. They returned at 3:12 pm. DC Chant testified that at 2:52 he observed 072 drive out of the garage. It went around the block. He observed it from time to time as it did so. He could not recall if it had tinted windows. DC DeSousa also observed 072. He observed the driver looking in the rear-view mirror, his side view mirror, and “looking around his, his whereabouts.” At 2:56 pm DC Benevides – who was the central note-taker – was told by a team member that 072 was driving up the ramp of the property. DC Benevides noted that 072 had gone around the block. He made observations from a Green P beside Bathurst Street north of Niagara Street. He was anticipating that 072 would drive past him, which it did in the curb lane. He saw that the passenger window was open. He was able to observe the passenger. He could not recall if the windows were tinted. He observed the driver, Michael Nguyen, noticeably looking in the rear-view mirror. He observed the passenger, Darius Nguyen, looking directly from the rear window over his left shoulder. Darius Nguyen was twisted to his left in the passenger seat.
[15] A Google map with the movements of 072 was entered into evidence; 072 had taken two different loops around the block. Officers concluded that 072 was engaged in counter-surveillance.
Police Arrest Darius Nguyen And Michael Nguyen
[16] At 3:24 pm DC Cilia observed Darius Nguyen and Michael Nguyen leave the elevator lobby and walk towards the vehicles. They were pushing a hotel-style dolly. The dolly had bags on it. They began loading the bags into 072. He observed them load two dark gym bags and a green reusable bag. All the bags appeared to contain items. He could not recall which part of the car the bags were loaded into. He then observed Darius walk away from 072 towards 333. He observed the other male – subsequently identified as Michael Nguyen – drive 072 away. He informed DC Swart that Darius Nguyen and the unknown male were returning to 072 carrying more weighted bags. Darius Nguyen placed a gym bag or a knapsack in 072. DC Cilia then informed DC Swart that 072 was driving out.
[17] DC Swart testified that at that point he decided to have his team arrest Darius Nguyen and the unknown male. At the preliminary inquiry DC Swart described his decision to arrest:
A. Okay. Well, in my mind at the time, I had information that Mr. Darius Nguyen was distributing controlled substances. He had an address of 5 Agate. However, information received was that he might reside at the area of Bathurst and Front. The fact that he — the driver's licence has not been changed again to avoid detection of where he is possibly living at the time. The fact that we located the vehicle down in the area that was told we might find it. The fact that bags moved from the lobby, or from, I believe, at the unit at the time, to their vehicles. Can't say for sure if that was the case where the bags came from. It's consistent with gym bags, and in my experience, I've watched numerous drug deals and trafficking where people basically hide in plain sight; walking with gym bags weighted doesn't throw any attention or suspicion to themselves. The fact that the amount of bags going into both vehicles. It sort of drew my attention to it the fact that potentially — I mean, in my past experience, generally, people don't stay in stash houses too long so that they avoid detection. And at that time, I believe that it's usually transferred to somewhere else or a drug deal or potentially be moved to another stash house. When we were leaving, with all that information plus the countersurveillance to police while they were driving to see if we were following them was in my mind. And at that time, I called for an arrest.
[18] Later, in response to a cross-examination question, DC Swart testified:
Q. So are you aware that there'd be multiple reasons why people may not have, if you will, updated their address with the Ministry of Transport, including a) COVID, b) taxation, 3) general laziness? You're aware of that, correct?
A. That's a possibility, but in my experience, this technique has been used in the past to avoid detection.
[19] DC Swart testified that he then drove down to the P1 level where he blocked the exit of 072 and placed Michael Nguyen under arrest. He blocked the vehicle when it was in the public access area. He then turned Michael Nguyen over to DC Benevides.
[20] When DC Swart called the takedown, DC Chase proceeded down to the P2 level. He arrested Darius Nguyen, who was in 333. He was backing out of his parking spot and then driving forward. DC Chase went to the driver’s side window, showed his badge, and took Darius Nguyen out of the car.
[21] DC DeSousa searched 072 and observed multiple bags in it. He looked in two of the bags. He observed what he believed to be cocaine and crystal methamphetamine. The bags contained a total of 18 kilograms of cocaine, 7 kilograms of crystal meth, and $219,000 in Canadian currency.
Relying on Exigent Circumstances, Police Enter 27 Bathurst Street, Unit 1512
[22] At 3:30 pm DC Chase informed DC Swart that he had arrested Darius Nguyen and that he had seized keys to Unit 1512. DC Swart consulted Det Awad, who was also on-scene, and they decided to enter Unit 1512. DC Swart testified at the preliminary inquiry:
It was in my opinion and along with Detective Awad that we would enter this unit under exigent circumstances. And at the time, in my mind, the belief that I had was the proximity of the arrest, the fact that civilians were present, unknown factors we did not conduct surveillance or have further information on that unit. If there was another occupant within that unit, that could potentially destroy evidence, destruction of property. And with the property that we had received and seized from filling up those large quantities of narcotics.
Again, just with this one, with the time that we started this investigation, we clearly didn't have a lot of information, but at the time of arrest, like I said, they were coming from a unit, there were two occupants at the time, they were in possession of those bags at the time, there were civilians that were curious to know what was going on with the police being there, close proximity of the arrest and may have been tipped off. I didn't know if anybody was in the unit, if there was more evidence within that unit.
[23] Det Awad was supervisor of the Major Projects team. He had the same information about Darius Nguyen that DC Swart had. He was also present while DC Swart was the “road boss”. He and DC Swart agreed that they would enter 27 Bathurst Street, Unit 1512 based on exigent circumstances. He explained why he believed that there might be further controlled substances in the building:
As a result of the information that I received and the officer — the observations made by the surveillance team with Mr. Darius and Mr. Michael Nguyen exiting the underground with a trolley with several bags, weighted bags, that were loaded into the vehicle, the RAV 4, CHXX 072. And shortly thereafter, both of them entering that vehicle, exiting the underground and driving, in say, two circles, two loops of 576 Front Street. During that, during that, that loop that they were driving in, observations were further made by the surveillance team of Mr. Michael and Darius Nguyen looking in their rear-views, which I believed was, in fact, a countersurveillance technique to observe if anyone, anyone is in fact following them. And then continuing another loop and then turning back into the underground. And once they did that, they continued to retrieve bags and load, load the vehicle.
Okay. Then my belief and my experience with drug traffickers, that they will use a variety of bags, duffle bags to sort of conceal and transport a large quantity of narcotics, essentially to avoid detection by just blending in with, you know, everyone — everybody around them, their surroundings and not to rise any attention — well, that's what they do.
[24] DC Swart testified that he and Det Awad entered Unit 1512, cleared it, and then left. They did not conduct a search. There was nobody in the unit. The Crown is not tendering any evidence seized from that unit.
Police Transport Darius Nguyen And Michael Nguyen To The Station; Parade Them Before The OIC; Make Calls To Duty Counsel
[25] Upon arrest officers gave Darius Nguyen and Michael Nguyen their rights to counsel. They also cautioned them. At 4:16 pm uniformed officers arrived and transported both men to 14 Division. Both men were paraded before the OIC of the station. They did not make calls to counsel until almost three hours after the arrest.
ISSUES
[26] The essence of the defence argument is that the police committed multiple Charter violations during the short investigation on August 6, 2020. The police acted on a vague and unsubstantiated tip. The police knew almost nothing of Darius Nguyen other than a vague association with an area of downtown Toronto and a vague association with drug trafficking. The police knew nothing whatsoever of Michael Nguyen. The police entered onto private property multiple times without permission from the property owners. They arrested Darius Nguyen and Michael Nguyen on what amounted to a hunch. The police entered a dwelling house without a warrant on the flimsiest basis. The police failed in their duties regarding the right to counsel. The defence argues that this accumulation of systematic Charter violations requires that the court exclude the evidence.
[27] There are five issues to be determined:
• Did the police violate the s. 8 Charter rights of Darius Nguyen and Michael Nguyen?
• Did the police have reasonable and probable grounds to arrest Darius Nguyen and Michael Nguyen?
• Did the police violate the s. 8 Charter rights of Darius Nguyen and Michael Nguyen when they entered 27 Bathurst Street, Unit 1512 without a warrant?
• Did the police violate the s. 10(b) Charter rights of Darius Nguyen or Michael Nguyen?
• Would the admission of the drugs and the cash in evidence at trial bring the administration of justice into disrepute?
ANALYSIS
(a) Did the police violate the s. 8 Charter rights of Darius Nguyen and Michael Nguyen?
[28] The defence argues that Michael Nguyen and Darius Nguyen had a reasonable expectation of privacy in the residential part of the parking garage at 27 Bathurst Street. The public access part of the lot was private property. Although the residential part of the lot was visible to the public, access was controlled. A driver required a key fob or key card or transponder – there is no evidence either way about which one – to enter the residential part. Darius and Michael Nguyen were in the controlled access part when the police videotaped them. The police were simply not permitted to videotape into the residential lot without a warrant. They had no consent to be in the public access part because they did not purchase a ticket. They were clearly trespassers. As well, they had no permission to be in the residential part of the lot – DC DeSousa sought permission from the property manager, but permission never came.
[29] Whether or not the police observations violated the Charter is a critical issue in this case: if the observations are excluded then there is insufficient justification for the search. DC DeSousa and DC Chant observed 033 in the residential part of the parking garage from the public part of the parking garage. DC Chant also observed Michael Nguyen and Darius Nguyen in the residential part of the parking garage. He videotaped them. DC Swart videotaped Darius Nguyen and Michael Nguyen loading bags into 033 and possibly 072. The vehicles and the men were in the residential part of the garage. DC Swart was in the public access part of the garage when he videotaped them. All the officers testified that they were able to see through the chain-link fence that separated the residential part of the garage from the public access part of the garage. As DC Swart (and other officers) testified, the decision to arrest was based on multiple circumstances. Without the garage observations, however, DC Swart could not have formed reasonable grounds to arrest Darius Nguyen and Michael Nguyen. In other words, if those observations are excised on the basis that they violated the Charter, the grounds for the arrest would collapse.
[30] Respectfully, however, I do not agree that the police violated the s. 8 Charter rights of Darius Nguyen and Michael Nguyen when they made observations and took videos of the residential part of the garage. Darius Nguyen and Michael Nguyen had no expectation of privacy there, assuming either even had standing to make the argument. If either of them had a subjective expectation of privacy, it was not reasonable. Anyone in either the residential or public access part of the garage could have observed Michael Nguyen and Darius Nguyen moving duffel bags, suitcases, and gym bags.
[31] In the seminal case on standing, R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, the Supreme Court of Canada held that a reasonable expectation of privacy is to be determined on the totality of the circumstances. At para. 45 the Court set out a non-exhaustive list of factors to be considered:
(i) presence at the time of the search;
(ii) possession or control of the property or place searched;
(iii) ownership of the property or place;
(iv) historical use of the property or item;
(v) the ability to regulate access, including the right to admit or exclude others from the place;
(vi) the existence of a subjective expectation of privacy; and
(vii) the objective reasonableness of the expectation.
[32] Section 8 is directed to protecting a “biographical core” of information that individuals wish to keep out of the hands of the state. That information includes the intimate details of the “lifestyle and personal choices” of the individual: R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432 at para. 25. It is difficult to see how loading bags into a vehicle in what amounts to a public place could reveal the intimate lifestyle and personal choices of an individual.
[33] In R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212 at para. 18 the Supreme Court suggested four lines of inquiry to determine a reasonable expectation of privacy:
The wide variety and number of factors that may be considered in assessing the reasonable expectation of privacy can be grouped under four main headings for analytical convenience: (1) the subject matter of the alleged search; (2) the claimant’s interest in the subject matter; (3) the claimant’s subjective expectation of privacy in the subject matter; and (4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances…
[34] In applying the Spencer formula, I find:
• The subject matter of the alleged search was the presence of Darius Nguyen at the location – what the police were after (R. v. Makarah, 2017 SCC 59, [2017] 2 S.C.R. 608 at para. 15) – as well as his movements and associations. That was information that could simply be gathered by surveillance. The police were clearly not – at least at that point – after the biographical core of Darius Nguyen’s information.
• Darius Nguyen’s (and Michael Nguyen’s) interest in his public comings and goings was obviously high – after all, they were his comings and goings. That said, the salient feature was not the comings and goings but the public aspect.
• Darius Nguyen (and Michael Nguyen) claim, through their counsel, a reasonably high subjective expectation of privacy in the residential part of the garage. Mr. Bottomley likened it to being in his garage, a point I will deal with below.
• If Darius Nguyen or Michael Nguyen had an expectation of privacy in the garage, it was not reasonable.
[35] The Court of Appeal’s decision in R. v. Yu, 2019 ONCA 942 provides something close to a complete answer the defence argument on the final Spencer line of inquiry. In Yu the police made several covert entries into a condominium building and two related parking garage areas. The police did have permission from building management to enter one of the garages. There was “insufficient evidence” of consent in relation the other garage. Tulloch J.A. for the Court of Appeal stated at para. 80:
The appellants had no reasonable expectation of privacy regarding observations made from a space accessible to the general public. Even if the appellants had a subjective expectation of privacy in the garage, that expectation was not objectively reasonable.
[36] The same reasoning clearly applies here.
[37] Mr. Bottomley argued that what the police did was analogous to entering the garage of a dwelling house without a warrant and video-taping the goings-on. A person has an obvious reasonable expectation of privacy and for the police to observe without a warrant surely violates the right to be secure against unreasonable search.
[38] While it is an attractive analogy, I think it breaks down upon close analysis. What if the crime were committed on the driveway, in full view of the neighbours or anyone walking down the street? A better analogy is this: the police surveil a target to learn where he lives in order to obtain evidence for a search warrant application. The target parks their car in the driveway and walks to the front door and enters it with a key. The police take photographs and video of the car, the target, the house number, and the target opening the door. The police do it from the street – they never set foot on the target’s private property, or anyone else’s. There is no doubt that the police would not need a warrant to take those photographs: R. v. Roy, 2020 ONCA 18.
[39] Much was made of the fact that the police parked in the public access area without purchasing tickets for their vehicles. With respect, this issue is a red herring. I do not agree that the failure to buy a $15 ticket to park from a third party in the public access part of the garage somehow converts the actions of the police into a violation of the rights of the two accused.
[40] In R. v. Mulligan (2000), 2000 CanLII 5625 (ON CA), 142 C.C.C. (3d) 14 (Ont.C.A.) a police officer in a rural area saw a truck running with the lights on in the parking area of a commercial establishment. He suspected a break-in. He drove onto the premises – which was private property – to investigate. A person, who turned out to be the owner, was in the truck. The officer smelled alcohol and, after a struggle, arrested the owner for impaired driving. The owner argued that the officer had been trespassing and had no right to come onto his private property and arrest him. That argument was rejected at trial and by the summary conviction appeal court. The Court of Appeal also rejected the argument. Sharpe J.A. found that the implied licence to knock applied, as set out in R. v. Tricker (1995), 1995 CanLII 1268 (ON CA), 96 C.C.C. (3d) 198 (Ont.C.A.) and R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8: He stated at paras. 24 and 27 of Mulligan:
In my opinion, the implied invitation principle extends to situations where the very purpose of entry is to protect the interests of the property owner or occupant, particularly where the entry occurs on an area of the property to which all members of the public ordinarily have access to do business with the property owner. It is plainly in the interests of a property owner or occupant that the police investigate suspected crimes being committed against the owner or occupant upon the property. For that reason, absent notice to the contrary, a police officer may assume that entry for that purpose is by the implied invitation of the owner, particularly where entry is limited to areas of the property to which the owner has extended a general invitation to all members of the public.
As with all police investigative powers, this licence must be strictly curtailed to avoid the risk of abuse. The officer must have a bona fide belief that gives rise to a reasonable suspicion of criminal activity being perpetrated against the owner or occupant or the property. The police officer must be able to demonstrate an objective basis in fact that gives rise to his suspicion.
[41] Sharpe J.A. further found at para. 33 of Mulligan that the officer’s purpose was plainly the antithesis of invading the rights of the accused – his purpose was to protect the accused from criminal activity. As Sharpe J.A. commented, “From the perspective of the owner or occupant of private property, it is entirely reasonable to expect a police officer to investigate activity giving rise to a suspicion of criminal activity being perpetrated against the owner or occupant on his or her property.”
[42] Mulligan does not apply in the very strictest sense: the police were not investigating potential crimes against the owner of the parking garage, and they were also not investigating property crime generally. That said, I think the over-arching principle applies. Indeed, I think it is obvious that there is an implied licence for the police to be on private property for investigative purposes where the public has a general invitation to be present. To find otherwise could lead to absurd results. For example, assume the police are surveilling a suspected drug dealer. The police know from intercepted communications that the suspect is meeting an unknown person – another suspected drug dealer – to discuss “business” at a mall. The police hope to observe the meeting to identify the other suspected dealer. If the principle did not apply, the police would be unable observe the meeting in the mall without specific permission – even though the mall owner extends an implied general invitation to the public. To hold otherwise cannot be the law.
[43] In this case, there was an implied invitation for members of the public to be in the public area of the parking garage. The police had a legitimate purpose to be there – they were investigating a potential crime. Although they had limited information, they certainly had more than a mere hunch. It would be an artificial and unworkable distinction to say that the police could not be in the public part of the garage simply because they were not investigating a crime against the owner of that garage.
[44] Even if I am wrong and the police did trespass in the public part of the garage, it doesn’t mean they trespassed on a Charter right belonging to Michael Nguyen or Darius Nguyen. And if they did, it is hard to see it as anything but the most trivial violation. In my view, whether the police paid to park in the public access lot is not material to whether the police violated the Charter rights of Michael Nguyen or Darius Nguyen. The real question was whether Michael Nguyen and Darius Nguyen had a reasonable expectation of privacy in the private area of the parking lot.
[45] In Roy, the police made observations of the target’s rural property from a nearby ditch. The police may have been trespassing on a neighbour’s property at the time. As the Court of Appeal put it at paras. 13, 16, and 18:
For the purposes of assessing whether there was a reasonable expectation of privacy, what is salient is what the police were viewing, not whether they were standing on public land or a neighbouring farmer’s field. The fact that the appellant lacked control over the lands where the police were standing was not highly probative of the question whether he had an expectation of privacy in his conduct in the open areas outside his house.
In this case, the police were outdoors and a considerable distance from the appellant’s house. The ditch location was on the other side of a public road. Their location in the farmer’s field was approximately 200 metres away. They could not overhear conversations. Even with binoculars, they could not see into the house beyond the silhouette of figures immediately in front of a window. They were not able to discern any activity that would have been taking place inside of the house. For the purposes of this stage of the analysis, nothing turns on the fact that the police were trespassing on a neighbour’s property.
… even if the ditch itself was located on private property, which is unclear on the record, everything that could be seen and heard from the ditch could also be seen and heard from the road in front of it, which was indisputably public land.
[46] The police are clearly entitled to videotape or photograph a person without a warrant during a bona fide investigation where that person does not have a reasonable expectation of privacy: R. v. Hoang, 2021 ONSC 6045 at para. 65; R. v. Brewster, 2016 ONSC 8038 at para. 54. Brewster was the trial decision from which the appeal in Yu was taken.
[47] Thus, the police did not violate s. 8 when they observed and filmed Darius Nguyen and Michael Nguyen.
(b) Did the police have reasonable and probable grounds to arrest Darius Nguyen and Michael Nguyen?
[48] The defence argued that the police simply did not have reasonable and probable grounds to believe that Darius Nguyen and Michael Nguyen were committing a crime. The information provided by the confidential source was amorphous. The source provided no information about the substances trafficked, the amounts, or the transport or distribution of the substances. There was, therefore, no information that would lend meaning to the suitcases and duffel bags. In other words, the evidence from the source was insufficient for the police to draw the inference that the suitcases and duffel bags contained illegal substances. The police had limited information about Darius Nguyen. They had no information about Michael Nguyen.
[49] The defence further argues that the counter-surveillance evidence should be discounted. The police observed behaviour that was innocuous and normal. For example, everyone who drives is required to check their mirrors. There was no evidence that 072, when driven by Michael Nguyen around the block, was doing anything more than looking for a parking spot in busy downtown Toronto.
[50] An arrest made without reasonable and probable grounds amounts to an arbitrary detention and therefore violates s. 9 of the Charter: R. v. Tim, 2022 SCC 42 at para. 39. Respectfully, however, I cannot agree that the police did not have reasonable and probably grounds to arrest. In fact, I would draw a different conclusion: it was good police work, based on observations by experienced officers.
[51] A police officer may arrest a person without a warrant whom he finds committing a criminal offence: Criminal Code, s. 495(1)(b). A police officer must have subjectively reasonable and probable grounds to arrest. Those grounds must be objectively reasonable. The police are not required to have a prima facie case for conviction before making an arrest: R. v. Storrey, at paras. 16-17. A court considering the objective reasonableness of the arrest must not consider the facts known to the officer in “individual silos”. Rather, the question is whether the facts as a whole disclose reasonable and probable grounds. The facts must be viewed through the eyes of a reasonable person who has the same training, knowledge, and experience as the arresting officer: R. v. Canary, 2018 ONCA 304 at para. 30. In other words, the court must consider the totality of the circumstances.
[52] I turn to the factors considered by DC Swart, starting with the tip. The tip that Darius Nguyen was trafficking controlled substances in the area of Front Street and Bathurst Street came from a reliable confidential source. By itself, the tip from the confidential source could never provide grounds for an arrest. It was too amorphous and too vague. It was, however, enough to commence an investigation and could be considered by the arresting officer as part of the totality of the circumstances. It is true that the confidential source did not mention any particular drug. The police, however, are not required to identify the particular drug when they make an arrest: Tim, at para. 42.
[53] The police immediately obtained confirmation of at least part of the tip when they observed Darius Nguyen’s vehicle, 333. The police observed the vehicle in the area where the confidential source indicated Darius Nguyen trafficked controlled substances. Mere observation by itself could not amount to corroboration as described by R. v. Debot 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140. Again, however, the observation could be considered as part of the totality of the circumstances.
[54] The police observed Darius Nguyen and Michael Nguyen loading duffel bags and suitcases into vehicles both before and after driving around the block. DC Swart noted the shape, weight, and the heft of the bags. He testified that the weight, heft, shape, and manner of movement were consistent with drug trafficking. He had seen drugs moved in this manner many times.
[55] The police also observed what they believed to be counter-surveillance behaviour by Michael Nguyen and Darius Nguyen. They made two different loops around the block. The police observed both men checking the mirrors and looking back. While it is, of course, prudent for a driver to check his or her mirrors, the combination of checking and simply looping around the block was consistent with counter-surveillance. As well, Darius Nguyen, the passenger, was observed to be twisting around in his seat and looking out the back window.
[56] DC Swart was also aware that the Ministry of Transport address associated with Darius Nguyen and his vehicle, 333, was different from the building at Front and Bathurst. He testified that in his experience drug dealers sometimes used a different address to cover their tracks.
[57] All these factors made DC Swart’s decision to arrest reasonable. Moreover, these factors must be seen through the eyes of a reasonable person with the same level of training and experience as the arresting officer. DC Swart made the decision to arrest. He was a very experienced police officer. He had been a member of the Toronto Police for over 22 years. He had a great deal of experience the area of commercial drug trafficking. He had been with the Toronto Drug Squad for 14 years and a member of the Major Projects unit for 8 of those years. The Major Projects unit dealt with high-level commercial drug trafficking at the kilo level or higher. DC Swart’s knowledge and experience were not seriously contested during the application. DC Swart’s supervisor, Detective Awad, another highly experienced police officer, was present and agreed with DC Swart’s assessment.
[58] Of course, the court cannot and should not defer to an officer, no matter how impressive that officer’s experience. That would be a most unfortunate delegation of judicial decision-making authority to the police. But a court must consider and weigh an officer’s training and experience. Indeed, to do otherwise would be an error: R. v. Wu (2015), 127 O.R. (3d) 494, 2015 ONCA 667 at paras. 51 and 57. As Moldaver J. explained in R. v. MacKenzie, 2013 SCC 50 at para. 62:
Officer training and experience can play an important role in assessing whether the reasonable suspicion standard has been met. Police officers are trained to detect criminal activity. That is their job. They do it every day. And because of that, "a fact or consideration which might have no significance to a lay person can sometimes be quite consequential in the hands of the police" (Yeh, at para. 53). Sights, sounds, movement, body language, patterns of behaviour, and the like are part of an officer's stock in trade and courts should consider this when assessing whether their evidence, in any given case, passes the reasonable suspicion threshold.
[59] The analysis of objective reasonableness “should be conducted through the lens of a reasonable person ‘standing in the shoes of the police officer’”: MacKenzie at para. 63.
[60] The defence argued that Darius Nguyen and Michael Nguyen may well have been doing perfectly innocent things when the police observed them. For example, it is certainly possible that Darius Nguyen and Michael Nguyen circled the block twice because they were looking for a parking spot – although that is difficult to understand when they already had a parking spot within the residential part of the parking garage. In any event, I cannot agree. The police are not required to consider alternative explanations for seemingly innocuous activities and then give the suspects the benefit of the doubt when determining if reasonable and probable grounds exist. What matters is the totality of the circumstances.
[61] Moreover, DC Swart was dealing with a fast-moving situation. He had to decide. As Doherty J.A. noted in R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743, 117 C.C.C. (3d) 193 (C.A.) at para. 18, the context matters:
Both a justice and an arresting officer must assess the reasonableness of the information available to them before acting. It does not follow, however, that information which would not meet the reasonableness standard on an application for a search warrant will also fail to meet that standard in the context of an arrest. In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant.
[62] The defence further argued that DC Chase violated sections 8 and 9 of the Charter when he arrested Darius Nguyen in the residential part of the parking garage. DC Chase had no authority to be there. In fact, the building management had specifically. It was unlawful for him to make an arrest in what amounted to a private dwelling.
[63] I respectfully disagree. DC Chase testified that he believed the residential area was separated from the public access area by a gate arm. He testified that he was able to see Darius Nguyen, in 333, back out of his spot and then drive toward the public access area. It is very clear from the video and the testimony of other officers that, in fact, there was an overhead door separating the private part of the garage from the public access part. DC Chase was simply wrong that there was a gate arm separating the two areas. He could not simply have walked into the residential area of the garage. He must have been in the public access area when he saw Darius Nguyen back out from his spot in the residential area. For DC Chase to have entered the private access part of the garage to arrest Darius Nguyen, the door must have been opened. DC Chase had no ability to open that door. There is no evidence that he had a key fob, or a transponder, or anything of that nature. What must have happened is that Darius Nguyen triggered the mechanism to open the garage as he made ready to drive out. Whether he mechanically triggered it using a device such as a key fob, or it opened automatically is immaterial. He must have been on the way out of the private part of the garage when DC Chase arrested him.
[64] DC Chase’s credibility was seriously attacked, but I do not agree that he lied about the gate arm. There is nothing to suggest that he was anything more than mistaken. In any event, I find that the location of the arrest is not material on the s. 9 issue. I do not agree that the residential part of the garage amounted to a dwelling house, or even a place where Darius Nguyen had a reasonable expectation of privacy. Obviously the expectation of privacy test does not apply in a s. 9 situation, and I am not conflating the two, but location informs the analysis in this case. In my view, the arrest was made in what, for practical purposes, amounted to a public place.
[65] Moreover, there were very good practical reasons for DC Chase to effect the arrest where he did. Darius Nguyen was clearly making ready to drive out of the residential part of the garage and into the public part. Michael Nguyen was being arrested or had been arrested at that point. Had Darius Nguyen become aware of the arrest, he could have backed into the residential part of the garage and evaded apprehension by the police. I will have more to say about this issue when I deal with s. 10(b) of the Charter. I therefore find that the police did not violate s. 9 of the Charter when they arrested Darius Nguyen and Michael Nguyen.
(c) Did the police violate the s. 8 Charter rights of either Darius Nguyen or Michael Nguyen when they entered 27 Bathurst Street, Unit 1512 without a warrant?
[66] Mr. Bottomley and Mr. Struthers argue that exigent circumstances simply did not exist when the police entered Unit 1512 without a warrant. It cannot be, they argue, that every time the police make an arrest in a public place it means that they are permitted to enter a dwelling house associated with the arrestees.
[67] I agree that the police do not have the authority simply to enter a dwelling house whenever they arrest someone in in a public place in proximity to that dwelling house. Respectfully, however, I do not agree that is what the police did. I find that the exigent circumstances existed.
[68] Let me first deal with the question of standing. Michael Nguyen has none in relation to Unit 1512. There is no evidence at all to tie him to the unit. The Crown’s theory or evidence can provide a basis for standing without Michael Nguyen having to provide evidence, but there is nothing upon which he can rest a claim. There is no evidence Michael Nguyen had any connection to Unit 1512, other than assisting Darius Nguyen in removing duffel bags and suitcases full of drugs and cash. At best, he may have been a guest of Darius Nguyen.
[69] Darius Nguyen’s claims standing is based on the key fob in his pocket. He also told DC Chase upon arrest that he lived at 27 Bathurst Street, Unit 1512. His Ministry of Transport address, associated to his car, was 5 Agate and not 27 Bathurst Street. There is no other evidence he resided in Unit 1512. There was no evidence of a lease or some other document connecting him. The Crown accepts that Darius Nguyen has standing to make the argument, although, in my view, it is a weak claim. I will deal with it on the merits.
[70] Section 11(7) of the Controlled Drugs and Substances Act permits warrantless entry to a place where the police have reasonable and probable grounds to believe that a controlled substance is located (see s. 11(1) of the Controlled Drugs and Substances Act) but by reason of exigent circumstances it would be impractical to obtain a warrant. The Crown argues that s. 11(7) operates here. I agree.
[71] Exigent circumstances do not mean merely convenience or economy, but rather urgency. The urgency calls for “immediate police action to preserve evidence, officer safety or public safety.” The “impractical” requirement means that “this urgency must be shown to have been such that taking the time to obtain a warrant would pose serious risk to those imperatives”: R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202 at paras. 33 and 37.
[72] In R. v. Hobeika, 2020 ONCA 750, Doherty J.A. stated at para. 43:
The urgency component of s. 11(7), as described in Patterson, was made out if, when the officer in charge decided to enter the building, proceed to Hobeika's unit and make a warrantless entry, he reasonably believed the circumstances called for immediate action to preserve evidence in Hobeika's unit, and reasonably believed waiting for a warrant would put the preservation of that evidence at serious risk. The second belief will often follow from the first.
[73] There are factual differences between this case and Hobeika, but Doherty J.A.’s comments at paras. 44-45 apply here:
The trial judge found the location and nature of the stopping of Hobeika's vehicle and his arrest made it reasonably probable Hobeika's arrest could quickly come to the attention of a person or persons in Hobeika's condominium unit, or with quick access to his unit. Those persons could destroy evidence in the unit before the police could obtain and execute a search warrant: Charter Reasons, at paras. 111-16.
The appellants challenge this conclusion, arguing there was no evidence the police "knew" someone was in Hobeika's unit or had immediate access to it. Section 11(7) of the CDSA did not require that the police have actual knowledge someone was in, or could readily access the unit. Instead, it required the police have reasonable grounds to believe there was an imminent risk that evidence in the unit would be destroyed before the police could obtain and execute a warrant.
[74] Both DC Swart and Detective Awad testified that they were concerned that the arrests had happened in a public place. It was reasonable for the officers to assume that Unit 1512 likely contained evidence and drugs. It was also reasonable, and not speculative, for the police to assume that there may have been other co-conspirators, as the drug operation was substantial. Indeed, they had not known of Michael Nguyen. It would have been negligent for them to assume that nobody else involved. It was possible that a co-conspirator had seen the arrests and either alerted someone in Unit 1512 or headed there to dispose of evidence before the police. DC Swart and Detective Awad were very experienced police officers. They both testified that they had seen occasions where a public arrest had resulted in the loss of evidence because someone in a target address had been tipped off or had seen the arrest. In my view, their decision was entirely reasonable given the fast-moving situation. Exigent circumstances existed.
(d) Did the police violate the s. 10(b) Charter rights of either Darius Nguyen or Michael Nguyen?
[75] The thrust of the defence argument is that the police committed multiple breaches of the s. 10(b) Charter rights of both Michael Nguyen and Darius Nguyen. The defence argues that DC Chant unlawfully arrested Darius Nguyen in the residential part of the parking lot. The police had no authority from building management to be there. The defence further argues DC Chase did give Darius Nguyen his rights to counsel. DC Chase never asked him which lawyer, or if he had a lawyer. DC Chase also gave him the caution and asked him if he wished to say anything, despite Darius Nguyen’s indication that he wanted to speak to a lawyer. That was a clear Charter violation. The defence further argues that the police did not comply with the implementational component of the right to counsel for Darius Nguyen. Finally, the police failed to put either man in touch with a lawyer within a reasonable time. The police simply failed to allocate resources in a manner that would ensure compliance with s. 10(b) of the Charter.
[76] The Crown concedes that the police breached s. 10(b) of the Charter in relation to Darius Nguyen by failing to hold off questioning once he had asked for a lawyer. The Crown also concedes that there was a breach of the implementational component. The Crown, however, only concedes that the breach occurred after Darius Nguyen and Michael Nguyen were paraded and booked. In the case of Darius Nguyen, the time was 33 minutes; in the case of Michael Nguyen, it was 35 minutes.
[77] I make the following findings:
• The police did not breach Darius Nguyen’s s. 10(b) rights when he was arrested in the residential part of the parking lot;
• The police did breach Darius Nguyen’s s. 10(b) rights when he was given the secondary caution after indicating he wished to speak to a lawyer;
• The police did not breach Darius Nguyen’s rights by failing to give him access to counsel of choice;
• The police did not comply with the implementational component of the right to counsel, thus breaching s. 10(b) of the Charter of both Darius Nguyen and Michael Nguyen.
[78] The arrest in the residential part of the parking lot: As I commented earlier in these reasons, Darius Nguyen must have triggered the mechanism to open the garage door into the residential part of the parking lot. He may have used a device such as a key fob or key card, or it may have opened automatically for exiting cars. As I stated, he must have been on the way out of the residential part of the garage when DC Chase arrested him. That was the only way DC Chase could have entered the residential part of the garage.
[79] In R. v. Lotozky (2006), 2006 CanLII 21041 (ON CA), 81 O.R. (3d) 355, 210 C.C.C. (3d) 509 (C.A.) the police had information about an allegedly impaired driver at a fast-food restaurant. The officers ran the licence plate of the vehicle and then went to the registered address. They watched the accused drive in an erratic manner up the street and park in the driveway. The officers then walked up the driveway, tapped on the window, made a breath demand, and arrested the accused.
[80] Rosenberg J.A. conducted a detailed analysis of the police conduct. He ultimately found that presence of the police on the driveway was authorized by the doctrine of implied licence: para. 21. In doing so, like Sharpe J.A. in Mulligan, he relied on Tricker. Rosenberg J.A. said the following about Tricker at para. 23 of Lotozky:
Speaking for the court, Galligan J.A. held at p. 203 that "the occupier of a dwelling gives implied licence to any member of the public, including a police officer, on legitimate business to come on to the property. The implied licence ends at the door of the dwelling [house]". He further held at p. 204 that a police officer carrying out the statutory mandate under the Highway Traffic Act to obtain reasonable identification of a motorist has lawful reason to speak to the person. Therefore, when the officer entered on to the driveway to obtain the deceased's identification he was "within the ambit of the implied licence recognized by the common law".
[81] Rosenberg J.A. distinguished the Supreme Court’s decision in Evans. In that case, the police had knocked on the door of a dwelling house to obtain evidence – the odour of marijuana – to obtain a search warrant. As Sopinka J. pointed out in Evans the doctrine of implied licence did not stretch far enough to permit evidence-gathering at the front door.[^1]
[82] In my respectful view, however, the doctrine of implied licence stretches far enough to cover the actions of a police officer who intercepts a person leaving a controlled access garage for the purposes of a lawful arrest. That particularly applies where a person has a low expectation of privacy in the controlled access garage. I appreciate that access was controlled into the residential part of the parking lot. It was, therefore, not exactly like the driveway of a dwelling house that anyone can access. And yet, the residential part of the garage was certainly visible to members of the public – just as if it were the driveway of a dwelling house. Apparently, it was not difficult for members of the public to enter the residential part of the parking lot, judging by what DC Chase was able to do. DC Chase did not violate the s. 10(b) rights of Darius Nguyen when he intercepted his vehicle and arrested him.
[83] The secondary caution issue: According to DC Chase, when he arrested Darius Nguyen he gave him his rights to counsel. He told Darius Nguyen that if he did not have a lawyer one could be provided for him. Darius Nguyen tried to speak but DC Chase cautioned him and told him that anything he did say could be used against him. Darius Nguyen did make some utterances, which DC Chase noted. The Crown is not seeking to tender those utterances. Darius Nguyen did say he wished to speak to a lawyer but did not give the name of a particular lawyer.
[84] According to DC Benevides, he provided rights to counsel to Michael Nguyen. Michael Nguyen understood and indicated he wished to speak to duty counsel. DC Benevides then gave the caution. He indicated that Michael Nguyen did not have to say anything but then asked, “do you wish to say anything to the charge”.
[85] Where a detainee has indicated a wish to speak to counsel, the police must provide a reasonable opportunity for him or her to do so. The police must hold off obtaining incriminating evidence from the detainee until he or she has had the reasonable opportunity to reach counsel: R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236 at para. 35; R. v. G.T.D., 2018 SCC 7, [2018] 1 S.C.R. 220 at para. 2. DC Chase agreed in cross-examination that he continued to ask questions of Darius Nguyen after Darius Nguyen had said he wanted to speak to a lawyer. DC Chase further agreed that he responded to Darius Nguyen by asking if he wanted to say anything. DC Benevides was told throughout his career he must read the whole caution and rights to counsel.
[86] DC Chase committed an obvious violation of the Charter as set out in Prosper and numerous other cases. At the time of the arrest, Prosper had been the law for at least 26 years. DC Chase had no specific training on the Charter after graduating from police college. He had been a police officer for 19 years. He testified that he had no specific training on this point but had since become aware that to continue asking questions did indeed constitute a Charter violation. DC Chase was an experienced police officer. He was candid about the error. DC Benevides had been a police officer for 15 years. He was also experienced. This error is an example of institutional failure by the Toronto Police. It is likely that DC Chase and DC Benevides (and probably many other police officers) came to regard the caution as part of the entire right to counsel package, to be delivered in rote fashion without further consideration. That is a systemic problem. Whether systemic or particular it was a violation of the s. 10(b) Charter rights of Darius Nguyen – as Crown counsel conceded. The police must address this point.
[87] The counsel of choice issue: Counsel of choice is not a live issue for Michael Nguyen; he told DC Benevides that he did not have a lawyer. According to the evidence of DC Chase, Darius Nguyen told him that he wished to “call a lawyer now”. It is true that DC Chase did not ask him if he had a particular lawyer in mind, but Darius Nguyen did not indicate that he did. This does not excuse the police, but a detainee has certain obligations, including the obligation of due diligence: R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 49 at para. 42. In this case, Darius Nguyen spoke to duty counsel twice. In my view, the comments of the Ontario Court of Appeal in R. v. Littleford (2001), 2001 CanLII 8559 (ON CA), 86 C.R.R. (2d) 148, 147 O.A.C. 123 (C.A.) apply:
The difficulty with the appellant’s position in this case is that he did speak to duty counsel before taking the breathalyzer test. He neither raised any concern at the time, nor did he testify on the voir dire to suggest that he misunderstood his rights at the time or that the conduct of the police officer affected his ability to assert those rights. The trial judge made a finding that speaking to duty counsel “seemed to satisfy him at the time.”
[88] I find no violation of the right to counsel of choice.
[89] The implementational issue: The police arrested Darius Nguyen at 3:30 pm. He spoke to duty counsel at 6:20 pm, almost three hours later. Michael Nguyen spoke to duty counsel a few minutes later. The defence argues that this delay of almost three hours had one source: the police did not devote sufficient resources. The police did not devote sufficient resources to moving both detainees to the police station. Once there, there were insufficient resources to process both detainees in a timely manner. This added up to a violation of the implementational aspect of the right to counsel.
[90] I do not agree with the defence that the delay in the implementation of the right was about three hours. I also do not agree with the Crown that the delay only amount to 33 minutes for Darius Nguyen and 35 minutes for Michael Nguyen. As I will explain, for Darius Nguyen, the delay was one hour and 47 minutes, less a reasonable amount of time required to move him about the station, parade, book, and search him. For Michael Nguyen, that delay was two hours and 7 minutes, again, less a reasonable amount of time for movement, parading, searching, and booking.
[91] Darius Nguyen and Michael Nguyen were arrested within a few minutes of each other at about 3:30 pm. Both men were given their rights to counsel. DC Chase testified that he did not provide Darius Nguyen with an opportunity to call counsel on scene because there was simply no facility to provide a safe and private place to speak to a lawyer. He could not let Darius Nguyen use his own cell phone for obvious reasons. The same reasoning would have applied to Michael Nguyen. Under the circumstances, it was not unreasonable for the police to wait until the booking process was complete at the station before providing access to duty counsel. There is no obligation on the police to implement the right until an accused person is “in a safe and secure location where a private call with counsel could be facilitated”: R. v. Keshavarz, 2022 ONCA 312 at para. 67.
[92] Timelines for the two men are set out in the Crown factum. The defence did not dispute the accuracy of the timelines. I reproduce a composite here:
TIME
EVENT
3:26 PM
Michael Nguyen is arrested and given his rights to counsel by DC Benevides. He is then placed into DC DeSousa’s vehicle.
3:30-3:35 PM
Darius Nguyen is arrested and given his s. 10(b) rights by DC Chase.
4:00 PM
Darius Nguyen is placed into DC DeSousa’s vehicle with Michael Nguyen.
4:10 PM
Darius Nguyen and Michael Nguyen are driven up to the underground parking entrance to await transport officers.
4:14 PM
Court wagon 8 arrives on scene for transport.
4:20 PM
Court wagon 8 departs 576 Front Street en route to 14 Division with Darius Nguyen and Michael Nguyen.
4:33 PM
Court wagon 8 arrives at 14 Division
5:33-5:47 PM
Darius Nguyen is booked, paraded and Level 3 searched.
5:53-6:05 PM
Michael Nguyen is booked, paraded and Level 3 searched.
6:20 PM
Darius Nguyen speaks to Duty Counsel – Peter Lam
6:40 PM
Michael Nguyen speaks to Duty Counsel – Peter Lam.
7:30 PM
Darius Nguyen speaks to Duty Counsel – Peter Lam
[93] It took about 50 minutes from arrest until the special constables arrived on scene to load the prisoners for transport. The police were not expecting to arrest anyone that day. I think it is reasonable to assume that they were using unmarked vehicles for surveillance that were not equipped to transport prisoners. The team was dealing with two seized vehicles, a large amount of drugs and cash, as well as an exigent circumstances entry into Unit 1512. There is no evidence that the team was dilatory or delayed calling for transport. The officers clearly applied their minds to the problem of getting the detainees to the station shortly after the arrest. The special constables had to get to the arrest location in the middle of an afternoon in downtown Toronto traffic. The result was that Darius Nguyen and Michael Nguyen arrived at the police station about one hour after the arrests. Based on the totality of the circumstances, I find that to be reasonable.
[94] It was, however, one hour after Darius Nguyen arrived before he was paraded, booked, and searched; it took another 23 minutes before he spoke to duty counsel. It was and one hour and twenty minutes before Michael Nguyen was paraded, booked, and searched; it took another 35 minutes before he spoke to duty counsel. It was reasonable that the police did not facilitate a call to counsel until after the booking process. I find, however, that the wait to be booked, and the unexplained wait after booking until calls were made violated s. 10(b) of the Charter.
[95] Sgt Morris was the officer in charge of the station at 14 Division on August 6 when Michael Nguyen and Darius Nguyen were paraded. He testified that individuals are not given access to a phone until they are paraded for safety reasons: the police cannot put a detainee alone in a room until he or she is searched for weapons. That seems reasonable to me. Sgt Morris also testified that there was no privacy in either the booking hall or the sally port. There are cameras everywhere, and everything is recorded. That also seems reasonable to me.
[96] Sgt Morris also testified that he wore two hats that day: he was both the booking sergeant and the OIC of the station. There was a shift change at 5:00 pm. When a shift change occurs, there is a briefing regarding the current situation at the station. The new shift is given information as to custody matters and other issues. As Sgt Morris was the only sergeant on duty, that meant that during the briefing no prisoners could be paraded. He agreed in cross-examination that if a prisoner comes in just prior to a shift change they will have to wait. It was the middle of the summer. He was the only sergeant on duty. In other words, because of a shift change and the lack of a senior police officer, both men waited for an hour or more to be paraded. It does not appear that the delay was due to other prisoners in the queue.
[97] In R. v. Rover, 2018 ONCA 745 the police did not permit the accused to speak to a lawyer for well over 5 hours. Various officers testified that it was their practice not to permit an accused person to contact counsel until after the warrant was executed. The trial judge found a violation of s. 10(b) but admitted the evidence on a s. 24(2) analysis. Doherty J.A., for the Court of Appeal, found that under some circumstances a delay in providing access to counsel can be justified: R. v. Learning, 2010 ONSC 3816. The police must consider the individual circumstances: R. v. Wu, 2017 ONSC 1003. Delaying access, however, depends on the facts of the case. Suspending the right to counsel can only be justified in circumstances of urgency, danger, or concerns for public safety. The police had no justification other than general policy. The Court of Appeal excluded the evidence. Doherty J.A. summed it up his approach at para. 33:
In my view, to fall within the exception to the requirement that an arrested person be allowed to speak to counsel without delay, the police must actually turn their mind to the specific circumstances of the case, and they must have reasonable grounds to justify the delay. The justification may be premised on the risk of the destruction of evidence, public safety, police safety, or some other urgent or dangerous circumstance. Furthermore, if the police determine that some delay in allowing an arrested person to speak to counsel is justified to permit execution of the warrant, then they must consider whether it is necessary to arrest the individual before they execute the warrant. The police cannot create a justification for delaying access to counsel by choosing, for reasons of convenience or efficiency, to arrest an individual before seeking, obtaining, and executing a search warrant. Police efficiency and convenience cannot justify delaying an arrested person's right to speak with counsel for several hours.
[98] Police efficiency is not a reason to delay implementation of the right to counsel. Neither is lack of resources – to a point. The considerations would undoubtedly be different in a rural or isolated community involving long distances and small numbers of officers, but that is not the case here – we are dealing with the largest municipal police service in Canada. Is, of course, not up to the courts to tell the police how to allocate resources. That is always their job. The court’s job is limited to evaluating the consequences of those choices in individual cases.
[99] In my view, therefore, the delay from arrival at the station until calls were placed for duty counsel constituted a violation of s. 10(b) of the Charter. For Darius Nguyen, that delay was from 4:33 pm to 6:20 pm – one hour and 47 minutes, less a reasonable amount of time required to move him about the station, parade, book, and search him. For Michael Nguyen, that delay was from 4:33 pm to 6:40 pm, two hours and 7 minutes, again, less a reasonable amount of time for movement, parading, searching, and booking. Based on the time the police actually took, I would reduce the net delay by 15 minutes for each man – meaning one hour and 32 minutes for Darius Nguyen and one hour and 52 minutes for Michael Nguyen. Of course, nothing can happen instantaneously. The requirement is not for instantaneous access but reasonable access in the circumstances of the case. The period of time in this case was not reasonable.
(e) Would the admission of the drugs and the cash in evidence at trial bring the administration of justice into disrepute?
[100] The defence argument is that the police engaged in a pattern of conduct showing disregard for the Charter, resulting in multiple violations. As counsel put it in their joint factum:
In the case at bar, the police violated the Charter from the beginning of their investigation until the end. They defied a lack of consent and entered a private space where they set up prolonged surveillance and made a video recording. They effected arrests without the requisite grounds and then conducted warrantless searches. They rendered the Applicants’ right to counsel meaningless. And then they searched a home despite a body of jurisprudence tracing back to R. v. Feeney. Further, the officers’ testimony in court demonstrates a disturbing, pervasive lack of understanding about the limits of their authority and a flagrant disregard for the Charter.
[101] As I have set out, I agree with the defence that the police violated the s. 10(b) Charter rights of Darius Nguyen and Michael Nguyen. I also agree there was an institutional failure by the police. Respectfully, however, I do not agree that the police engaged in a pattern of disregard for Charter rights. They did not violate s. 8 and s. 9 of the Charter. I also do not find a blatant disregard for Charter rights by the individual officers – although the institutional failures are troubling and call for better and more regular police training.
[102] There was also no causal connection between the violation and the seizure of the evidence. Of course, no causal connection is required to engage s. 24(2) of the Charter. A temporal connection is sufficient: Rover, at para. 35; R. v. Pino, 2016 ONCA 389. I agree that there is a temporal connection. I must therefore determine whether the admission of the evidence would bring the administration of justice into disrepute: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
[103] There are three aspects to the Grant analysis as set out in para. 71:
When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
[104] Seriousness of the Charter-infringing state conduct: There were two violations of s. 10(b) of the Charter: a breach of the duty to hold off questioning, and the delay in the implementation of the right to counsel.
[105] The right to counsel is a fundamental right. It is central to our system of criminal justice. The right to counsel was described in Rover at para. 45:
The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained.
[106] In my view, however, this case is not unlike Keshavarz. In that gun trafficking case, the police held off implementing the right to counsel for several hours until search warrants were executed. Once the officers were back at the station after executing the warrants, however, it was one hour until the accused was placed in contact with duty counsel. Fairburn J.A. for the Court of Appeal stated at paras. 110-111:
Even without a systemic problem or pattern of abusive police conduct in this case, though, this was undoubtedly a serious breach. While the police were justified in suspending the right to counsel during the execution of the warrants, along with the authority to temporarily suspend the implementational component of the right to counsel came the corresponding responsibility to appreciate the enormity of the situation and the implications for the appellant. He was entitled to be offered the opportunity to speak with counsel at the earliest opportunity. The fact that he chose not to in the end, instead choosing to speak to a friend, does not detract from the fact that he sat for many hours without a call. The police should have been on high alert, ready to facilitate the right to counsel at the earliest moment possible, which was when the searches were complete, and the risks had cleared. The police failed in that regard.
Accordingly, while the Charter-infringing state conduct could have been more serious, especially if it had been part of a pattern of breaches or bad faith had been present, it was still serious indeed.
[107] Here, the police violated aspects of the right to counsel. These were serious violations, but they were not at the highest end of seriousness, especially as they were not part of a pattern of disregard for Charter rights. I would characterize the violations at the same level of seriousness as in Keshavarz, and perhaps even less serious.
Impact of the breach on the Charter-protected interests of the accused:
[108] In my view, the s. 10(b) breaches had no impact on the Charter-protected interests of either Darius Nguyen or Michael Nguyen. The breach did not actually undermine “the interests protected by the right infringed”: Grant at para. 76. Michael Nguyen made no utterances. The Crown is not relying on any utterances by Darius Nguyen. As well, there was no causal connection between the breaches and the discovery of the evidence. As in Keshavarz, the discovery of the evidence occurred before the breach. As Fairburn J.A. commented at para. 115:
This lessened the impact of the breach on the appellant’s Charter-protected interests, making “admission … more likely”: see Grant, at paras. 122-25… it is entirely ‘appropriate’ to consider the lack of a causal connection in calibrating seriousness under the second stage of the Grant analysis.”
[109] While a causal connection is not required to engage in a s. 24(2) analysis, it is a relevant factor when assessing the impact on the Charter-protected rights of the accused: Rover at para. 43.
[110] Finally, as Fairburn J.A. also pointed out in Keshavarz at para. 116, the s. 10(b) violations did not interfere with any other Charter-protected right. In my view, this line of inquiry favours admission.
[111] Society’s interest in the adjudication of the case on its merits: Society’s interest in the adjudication of this case on the merits is very high. The police seized – lawfully – substantial amounts of the most dangerous illegal drugs. The exclusion of the evidence would end the Crown’s case. Importantly, the evidence that would be excluded is real evidence, lawfully seized as the result of good police work. This line of inquiry favours admission.
[112] Balancing the Grant factors: As in Keshavarz, the first line of inquiry pushes towards exclusion. The second and third, however, push towards inclusion. Of course, balancing the Grant factors is not a mathematical or mechanical exercise. The key question when balancing the factors is whether admission of the evidence would bring the administration of justice into disrepute. On the contrary, in the circumstances here exclusion of multiple kilograms of fentanyl and methamphetamine after a lawful investigation, arrest, and seizure would undermine confidence in the administration of justice.
DISPOSITION
[113] The application is dismissed.
R.F. Goldstein J.
Released: September 12, 2022
COURT FILE NO.: CR-22-90000013-0000
DATE: 20220912
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
DARIUS NGUYEN & MICHAEL NGUYEN
REASONS FOR JUDGMENT
R.F. Goldstein J.
[^1] In my view, the recent case of R. v. McColman, 2021 ONCA 382 is distinguishable. That case turned on the statutory power of the police to randomly stop motorists under the Highway Traffic Act on a private driveway where no reasonable grounds existed. Leave to appeal to the Supreme Court of Canada was granted on February 3, 2022 but the appeal has not yet been heard: R. v. McColman, 2022 CarswellOnt 1159.