Court File and Parties

COURT FILE NO.: CR-19-90000497 DATE: 2022-10-31 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

AXEL ARANA Accused

COUNSEL: L. Price, for the Crown M. Macchia, for the Accused

HEARD: September 19-26, 2022, and September 29, 2022

BEFORE: Chalmers, J.

ENDORSEMENT

OVERVIEW

[1] The accused, Axel Arana is charged with the following offences:

a. Possession for the purpose of trafficking a Schedule I substance contrary to s. 5(2) of the Controlled Drugs and Substances Act (CDSA) (6 counts);

b. Possession of a Schedule I substance contrary to s. 4(1) of the CDSA (6 counts);

c. Possession for the purpose of trafficking a Schedule II substance, contrary to s. 5(2) of the CDSA;

d. Possession of a Schedule II substance contrary to s. 4(1) of the CDSA; and

e. Possession of proceeds of crime contrary to s. 354 of the Criminal Code.

[2] In June 2018, the police received information from a confidential informant (CI) that Mr. Arana was trafficking cocaine out of his residence. The police prepared an Information to Obtain (ITO) a search warrant. The warrant to search the premises at 692 Dufferin Street, Toronto was issued by the Justice of the Peace. The police executed the warrant on June 8, 2018. The police seized among other things, a safe that contained close to 1kg of cocaine.

[3] Mr. Arana brought a pre-trial application for a declaration that his rights pursuant to section 8 of the Charter, were violated. He argued that there was no basis on which the authorizing justice could have granted the search warrant because the information from the CI was not credible, compelling or corroborated. The copy of the ITO provided to the accused was heavily redacted by the Crown to protect the identity of the CI. The Crown brought a cross-application to have this court consider the unredacted ITO in accordance with the procedure set out in R. v. Crevier, 2015 ONCA 619.

[4] The Crown provided a draft judicial summary of the redacted portions of the ITO. With the consent of Mr. Arana, I conducted an in-camera hearing with Crown Counsel, to review the draft judicial summary. Following the in-camera hearing, the draft judicial summary was edited and provided to the Defence.

[5] By endorsement delivered orally on September 19, 2022, I dismissed Mr. Arana’s pre-trial application. On my review of the unredacted ITO, I concluded that the information from the CI was credible, compelling and corroborated. I was satisfied that based on the record before the authorizing justice, the search warrant could have been granted.

[6] At the commencement of trial, Mr. Arana brought an application for a declaration that his s. 10(b) and s. 8 Charter rights were violated. With respect to his s. 10(b) rights, Mr. Arana argues that he was not immediately provided with his right to counsel (RTC), and that after he was provided with his RTC, the police did not immediately arrange for him to speak privately with his lawyer. Mr. Arana also argues that before he was given an opportunity to speak to counsel, the police questioned him. With respect to his s. 8 rights, Mr. Arana argues that he was subject to an unreasonable level three search (formerly known as a strip search). He argues that evidence was obtained in a manner that infringed his rights under the Charter and as a result, the evidence ought to be excluded.

[7] For the reasons that follow, I find that the evidence obtained by the police pursuant to the search warrant is admissible. Mr. Arana’s application is dismissed.

FACTUAL BACKGROUND

[8] On the voir dire of the application, the Crown called four officers: Police Constable Richards, Sergeant Garrow, Detective Constable Stojic and Detective Constable Heineman. In addition, the Crown filed an Agreed Statement of Facts. The Defence called Mr. Arana for the purposes of the voir dire.

The Crown’s Evidence

[9] Detective Constable Stojic was responsible for the execution of the search warrant at 692 Dufferin Street. He arrived in the area of Mr. Arana’s residence at 17:20 on June 8, 2018. D.C. Heineman was the affiant on the ITO for the search warrant. He arrived at the target address at 18:24. D.C. Heineman observed Mr. Arana walking eastbound on Fisher St. Mr. Arana turned on Boland Lane and walked northbound. D.C. Heineman notified the team that he had seen the target.

[10] At 18:24, D.C. Stojic drove his car past the back of the residence. He saw Mr. Arana walking towards him. D.C. Stojic approached Mr. Arana and identified himself. He told Mr. Arana that he was under arrest for possession of cocaine for the purpose of trafficking. Mr. Arana said he had no cocaine on him. D.C. Heineman arrived on the scene about 1 minute after D.C. Stojic approached Mr. Arana. D.C. Heineman assisted in handcuffing Mr. Arana and conducting a pat down search.

[11] When Mr. Arana was restrained, D.C. Stojic told Mr. Arana that he had an authorized search warrant to search the residence for drugs. Mr. Arana expressed concern. He stated that there was a gathering to celebrate his grandfather’s birthday. He did not want everyone to be disrupted. He told D.C. Stojic that there may be a couple of ounces in the basement.

[12] On the pat down search, D.C. Heineman found two blue latex gloves in Mr. Arana’s back pocket. The gloves suggested to him that Mr. Arana may have handled substances that he did not want to touch with his bare hands. D.C. Heineman asked Mr. Arana if there was any Fentanyl. In cross-examination, D.C. Heineman testified that he asked Mr. Arana about Fentanyl before the RTC had been read. He stated that he asked the question because of officer safety concerns and not in an attempt to have Mr. Arana incriminate himself.

[13] D.C. Stojic did not immediately read the RTC to Mr. Arana. He testified that it was a dynamic situation. He did not know who was in the residence or whether anyone inside the residence may have observed the arrest of Mr. Arana in the rear laneway. He stated that he wanted to execute the warrant quickly before anyone in the house may become aware of the situation and attempt to destroy or remove evidence.

[14] D.C. Stojic had arranged for two uniformed officers to attend at the target location to transport the accused to the police station. At 18:25, P.C. Richards arrived at the scene of the arrest. Mr. Arana was turned over to her custody at 18:28. D.C. Stojic told P.C. Richards that Mr. Arana was under arrest for possession of cocaine for the purpose of trafficking. She was given his personal property, which included blue latex gloves, rolling papers, a cellphone and cash in $20’s and $50’s. D.C. Stojic asked P.C. Richards to provide the RTC to Mr. Arana on the police car camera.

[15] P.C. Richards placed Mr. Arana in the rear seat of the police cruiser. She read him his RTC on camera at 18:30. He said he understood his rights. He said he had a lawyer, Kim Schofield, and wanted to speak to her. P.C. Richards wrote down Ms. Schofield’s name in her notebook. She did not read the caution to Mr. Arana. She did not plan on taking a statement from him. During this time, Mr. Arana seemed nervous. He told P.C. Richards that his grandfather and others were in the house, and he was concerned about the police executing the search warrant.

[16] After reading the RTC, P.C. Richards stood by for further instructions. She moved Mr. Arana out of the vehicle, and they stood in the shade. It was very hot in the vehicle. She did not consider taking Mr. Arana to the station at that time. Mr. Arana had been arrested but no formal charges were laid. If nothing was recovered on the search, he may be released and therefore there was no point going to the station. P.C. Richards stated that there was no opportunity for Mr. Arana to speak with a lawyer at the scene. He was handcuffed and could not be left alone to speak to his lawyer in private. Although he could have been left in the rear of the squad car, there is audio and video recording in the vehicle. P.C. Richards does not generally turn off the recording to avoid any allegations of impropriety.

[17] After P.C. Richards took custody of Mr. Arana, D.C. Stojic and D.C. Heineman entered the basement door to execute the search warrant. They secured the basement by carrying out a search for any persons or weapons. No one was in the basement. As he was securing the basement, D.C. Stojic opened the door to the armoire. He saw a safe at the bottom of the armoire. After the area was secured, the Scenes of Crime Officer (SOCO) took photographs of the area to be searched.

[18] D.C. Stojic knew there was a family gathering and there were a number of people upstairs. He testified that he was concerned about breaking open the safe if it contained Fentanyl. The basement area was a small and confined space. He stated that the gloves seized from Mr. Arana suggested that the drugs Mr. Arana was handling were dangerous. He confirmed in cross-examination that he did not ask Mr. Arana why he had the gloves.

[19] D.C. Stojic called P.C. Richards. He had no notation of the time he called her. According to P.C. Richards she received the call at 18:34. He did not ask P.C. Richards if she had provided the RTC or caution or whether Mr. Arana stated that he wanted to speak to counsel. He asked P.C. Richards to ask Mr. Arana if there was Fentanyl in the house. He also asked for the location of the key to the safe. According to P.C. Richards, Mr. Arana stated that there was no Fentanyl and that the key was in a bobblehead doll. She relayed this information to D.C. Stojic.

[20] D.C. Stojic recovered the key. He opened the safe in the basement. He did not take any safety precautions before opening the safe. D.C. Stojic was cross-examined with respect to his claim that he was concerned about officer safety and the safety of others in the house. He agreed that he based his decision to open the safe inside the basement solely on Mr. Arana’s statement that there was no Fentanyl. He did not remove the other persons from the house when the safe was opened. He did not remove the safe and open it outside.

[21] D.C. Stojic stated that the safe was made of hard plastic. It was about one square foot and weighed 10-15 pounds. It was not affixed to the floor or armoire. D.C. Stojic stated that he could have removed the safe to the outside before opening it. He also stated that he did not require a key and could have pried the safe open. When he opened the safe there was an overpowering acidic odour that he identified with cocaine. Approximately 1kg of cocaine was in the safe.

[22] At approximately 19:00, P.C. Richards was told to transport Mr. Arana to the station. She left the scene at 19:03 and arrived at the station at 19:27. At the station, they waited in the sally port for the door to open. At 19:56 they entered the booking hall. The booking sergeant was Sgt. Garrow. P.C. Richards advised Sgt. Garrow that Mr. Arana was charged with possession of cocaine for the purpose of trafficking, and possession of proceeds of crime. All personal property items including the latex gloves, cash and rolling papers were handed over to Sgt. Garrow.

[23] In booking Mr. Arana, Sgt. Garrow followed a script and asked Mr. Arana standard questions. In addition to the questions on the script, he asked if Mr. Arana was responsible for any vulnerable persons. He did not ask about the consumption of any drugs. Mr. Arana was being charged with drug offences, and Sgt. Garrow was concerned about asking any questions that could result in self-incrimination.

[24] P.C. Richards requested a level 3 search. She confirmed that the primary reason she requested a level 3 search was because of the drug charges. She was concerned that he may continue to have drugs on him. She also noted the prior arrest for assault and stated that the search was necessary for officer safety. The decision to conduct a level 3 search rests with the booking sergeant.

[25] Sgt. Garrow authorized the level 3 search. He testified that the primary reason for ordering the level 3 search was the nature of the charges. He also stated that the presence of latex gloves was unusual. The gloves may have been required if the accused was handling dangerous drugs such as Fentanyl. Sgt. Garrow was also told that there had been a prior charge of assault. The history of violence was a factor but less significant than the fact the accused was facing drug charges.

[26] P.C. Richards advised Sgt. Garrow that Mr. Arana wanted to speak to a lawyer. Sgt. Garrow did not consider putting him in touch with a lawyer before the level 3 search. Mr. Arana was handcuffed at the time and would be unable to make a call without an officer present. At 20:05, P.C. Richards escorted Mr. Arana to Criminal Investigation Bureau – Room A where the search was conducted by a male officer.

[27] Sgt. Garrow confirmed that the policy with respect to level 3 searches changed in October 2020. Now the policy is to provide an opportunity for the individual to speak to a lawyer before the search. There is now a room at the station where a conversation can be conducted in private. There was also a change with respect to when a level 3 search will be ordered. The change was necessary because level 3 searches were being conducted as a matter of routine. Now the general practice is to conduct less invasive frisk searches.

[28] After Mr. Arana was put in the room for the search, P.C. Richards returned to her police car to retrieve her computer fob. She may have also gone to the bathroom and got a drink of water. She logged onto the computer to search for Kim Schofield’s number. She found the number and left a voicemail at 20:32. On the phone message, she was instructed that if it was an emergency, she was to call Ms. Schofield’s associate. P.C. Richards called the associate. At 20:33, she gave the phone to Mr. Arana so he could speak with his lawyer.

[29] D.C. Stojic and D.C. Heineman completed the search of the premises. They left the scene at 20:10 and returned to 12 Division. In cross-examination, it was suggested that when he arrived at the station, D.C. Stojic met with Mr. Arana to conduct a debrief. He denied that he spoke with Mr. Arana when he got back to the station.

[30] At the police station there was a briefing at 21:20 that lasted about 15 minutes. D.C. Heineman handed over the property for processing. He assisted in completing the paperwork for the show cause hearing. At 22:40, he went in CIB room A to speak with Mr. Arana. There are no recording devices in that room. He told Mr. Arana about the totality of the charges. Mr. Arana was staring straight ahead with his arms folded. He made no response. D.C. Heineman was aware that Mr. Arana had spoken with a lawyer. It was clear that Mr. Arana would not respond to him, and he left the CIB room. He advised the booking sergeant that Mr. Arana could be transferred to the cells.

[31] The next day, Mr. Arana went to 12 Division to ask about getting his cellphone back. D.C. Stojic spoke with him at that time. The cellphone was seized as evidence and was not returned to him.

The Defence Evidence

[32] Mr. Arana testified that on June 8, 2018, his family was having a celebration for his grandfather’s 83rd birthday. After he came home from work, he went to the corner store at Dundas and Sheridan. He purchased some sunflower seeds and rolling papers. He was walking back home when he saw a black Malibu slowly drive towards him. He heard his name being called. A police officer came out of the car and said he was under arrest. Initially, Mr. Arana thought this related to a prior assault charge. The officer then said he was being arrested for trafficking cocaine. Mr. Arana said he did not have any cocaine. Another officer then arrived on the scene, and he was handcuffed.

[33] The police told Mr. Arana that they had a search warrant. D.C. Stojic said he would break down closets and doors and search the entire house. Mr. Arana asked that nothing be broken. He said there were a lot of people in the house, and it was his grandfather’s house. In cross-examination, he stated that no one in the house suspected that he was selling cocaine. He told the officer that there were some ounces in the basement. He told the police about the cocaine in the basement because he was concerned about the entire house being searched and he wanted to minimize the effect of the search on his family. In response, D.C. Stojic stated that the warrant was for the whole residence.

[34] After maybe five minutes or less, uniformed officers arrived on scene. The uniformed officers provided the RTC as soon as they took him into custody. Mr. Arana testified that he was also cautioned. Mr. Arana stated that he wanted to speak to a lawyer. He was kept at the scene. At some point, P.C. Richards asked him where the safe was and if there was a key. She also asked if there was any Fentanyl in the house.

[35] After about 40-45 minutes he was transported to 12 Division. He was subject to a level 3 search. He was required to take off one piece of clothing at a time. The search took less than 10 minutes. About 15 to 20 minutes after the search, D.C. Stojic came into the room and asked if he was prepared to give up some names. He met with him for about 10-15 minutes. Mr. Arana had not spoken with a lawyer before meeting with D.C. Stojic. Mr. Arana did not say anything. Soon after D.C. Stojic left the room, a phone was put under the door so he could speak to a lawyer. No one else came into the room. Mr. Arana denied speaking with another officer after he spoke to counsel. He testified that he was not told about all the charges he was facing until the bail hearing the next day.

[36] The next day Mr. Arana went to 12 Division to ask about the return of his cellphone. He needed his phone for contact information for his work. He spoke with D.C. Stojic for about 15 minutes. D.C. Stojic asked him for names of his associates. Mr. Arana did not respond. His cellphone was not returned to him.

THE ISSUES

[37] I will address the following issues:

(a) Was there a breach of Mr. Arana’s s.10(b) Charter right to counsel?

(b) Was there a breach of Mr. Arana’s s. 8 Charter right to reasonable search? and

(c) If evidence was obtained in a manner that infringed Mr. Arana’s Charter rights, should the evidence be excluded?

ANALYSIS

1. Was there a breach of Mr. Arana’s Right to Counsel?

[38] Mr. Arana takes the position that his s 10(b) Charter right to counsel was breached. He states that the police failed to provide the RTC without delay, failed to promptly implement the opportunity for Mr. Arana to speak to counsel and did not “hold off” questioning Mr. Arana after he invoked his right to counsel. Mr. Arana has the onus of establishing that his s. 10(b) rights were infringed.

RTC Without Delay

[39] Under section 10(b) of the Charter, the police are required to inform the detainee of his or her right to counsel “without delay”. As stated in R. v. Suberu, 2009 SCC 33:

[41] If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises. [….]

[42] In our view, the words “without delay” mean “immediately” for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.

[40] Here, Mr. Arana was arrested at 18:25. He was advised of the reasons for the arrest. He was told there was a search warrant. Both D.C. Stojic and D.C. Heineman conducted a pat down search. After he found the latex gloves on the pat down search, D.C. Heineman asked if there was any Fentanyl. Three minutes later at 18:28, custody of Mr. Arana was transferred to P.C. Richards. She activated the in-car camera and read the RTC to Mr. Arana at 18:30.

[41] The RTC is to be provided immediately after the accused is arrested, handcuffed and a pat down search takes place: R. v. McGuffie, 2016 ONCA 365, at para. 42. It is reasonable and appropriate that the police ensure that the situation is safe before providing the RTC. Here, the RTC was provided by P.C. Richards within 5 minutes of the arrest. The RTC was provided after the police handcuffed and searched Mr. Arana. I am of the view that the time it took the police to secure the scene before providing the RTC was not unreasonable.

[42] I am satisfied that in the circumstances of this case, a five-minute delay from the arrest to the RTC is not a breach of Mr. Arana’s right to be informed of his right to counsel, without delay.

Implementation of the RTC

[43] Mr. Arana was read his RTC at 18:30. He spoke to his lawyer at 20:33. The arresting officer is under an obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. The onus is on the Crown to show that a delay in facilitating access to counsel, was reasonable in the circumstances: R. v. Taylor, 2014 SCC 50, at para. 24.

[44] I am satisfied that there was no opportunity for Mr. Arana to speak to counsel at the scene. He was handcuffed and could not be left alone to speak to a lawyer in private. He could not make the call in the back of the police car because of the recording devices. It was not reasonable to expect the police to provide their own cellphone to Mr. Arana: R. v. Taylor, at para. 27. Also, there would have been no opportunity for Mr. Arana to make a private phone call in the house that was being searched: R. v. Pileggi, 2021 ONCA 4, at para. 76.

[45] Once Mr. Arana advised police that he was exercising his right to speak to a lawyer, the police were required to turn their minds to how this could be facilitated. As noted above, a private call at the scene was not reasonable. It was therefore necessary for the police to take Mr. Arana to the station, where he could have a private call with a lawyer. The police did not immediately take Mr. Arana to the station. Mr. Arana remained at the scene while the search took place. He departed the scene at 19:03. This was approximately 30 minutes after he told police that he wished to speak to his lawyer.

[46] The Defence argues that there was no reason for him to remain on the scene while the search took place. This delayed the opportunity for him to speak to a lawyer. The Crown argues that it was reasonable for Mr. Arana to remain at the scene until something incriminating was found. If nothing had been found on the search, Mr. Arana would have been released. There would have been no point in taking him to the station if he would be released after the search was completed.

[47] I do not accept the Crown’s explanation. If an accused person exercises his or her right to speak to a lawyer, the police must take steps to facilitate that request at the first reasonably available opportunity. Having the accused wait at the scene of a search to see if something incriminating is found is inconsistent with facilitating the right to counsel, without delay. As noted by Copeland J. (as she then was) in R. v. Khan, 2019 ONSC 3442:

[57] With respect, in my view, Detective Fraser’s approach of not implementing right to counsel unless and until something incriminating was found is not consistent with the requirement that s. 10(b) be implemented without delay. In my view, waiting to see whether anything will be found in the search is asking the wrong question.

[60] In my view, whether or not the police would find evidence of a crime in the search is the wrong question to ask in deciding how and when to facilitate access to counsel. Mr. Khan was under arrest at 3:05 a.m. He said he wanted to speak to a lawyer. There was no reason his presence was required while the search was ongoing. He had a right to have his request to speak to counsel acted on without delay.

[48] I find that the delay between the time Mr. Arana stated that he wanted to speak to counsel and in leaving to go to the station, was unreasonable. There was no valid reason for Mr. Arana to remain at the scene while the search was being conducted.

[49] There were further delays after Mr. Arana left the scene. There was a 24-minute drive to the station and a 30-minute wait to enter the sally port. After P.C. Richards completed the booking procedure, there was a delay of approximately 27 minutes before Mr. Arana spoke to his lawyer. I am satisfied that the time it took to drive to the station and wait in the sally port was not unreasonable: R. v. Desilva, 2019 ONSC 6555, at para. 68. I also find that the time it took from completing the booking to arranging the call to counsel was not unreasonable. P.C. Richards testified that once her booking duties were completed, she may have gone to the washroom and may have got a drink of water. She had to go to the police car to retrieve her computer fob. She logged onto the computer and looked up the number to the lawyer. She placed the first call to the lawyer at 20:32 and left a voicemail. She was directed to call a second number which she did. Mr. Arana was put in contact with the lawyer at 20:33. I am satisfied that P.C. Richards took her responsibility to arrange the call to counsel, seriously.

[50] I conclude that there was a delay in implementing the call to counsel by approximately 30 minutes. This was the period of time Mr. Arana remained at the scene after he invoked his right to counsel. This was a breach of Mr. Arana’s s. 10(b) Charter right to speak to a lawyer at the first reasonably available opportunity.

Duty to “Hold Off”

[51] If a detainee indicates a desire to exercise his or her right to speak to a lawyer, the police are to refrain from eliciting any evidence before the detainee has had the reasonable opportunity to exercise the right: R. v. Willier, 2010 SCC 37, at para. 29. The only exception is in urgent or dangerous circumstances: R. v. Taylor, 2014 SCC 50, at para 23.

[52] It is alleged by Mr. Arana that there were three breaches of the duty to hold off; D.C. Heineman asking Mr. Arana if there was Fentanyl at the time of the arrest and pat down search; D.C. Stojic asking Mr. Arana through P.C. Richards if there was Fentanyl and for the key to the safe; and D.C. Stojic’s interview of Mr. Arana at the station.

[53] D.C. Heineman testified that he became concerned about the presence of Fentanyl when he found the latex gloves during the pat down search. He believed that Mr. Arana may have been handling a substance such as Fentanyl that he did not want to touch. D.C. Heineman did not want to come into contact with Fentanyl during the pat down search. He stated that his motivation for asking the question was officer safety and was not an attempt to have Mr. Arana incriminate himself.

[54] I find D.C. Heineman to be a credible and reliable witness. I accept his explanation for asking the question about Fentanyl. At the time of the arrest, Fentanyl was known to be a dangerous drug that could pose a health risk to police officers. He knew the search warrant was for cocaine. There was no reason to ask the question about Fentanyl except for reasons of officer safety. I am satisfied that the single question asked by D.C. Heineman at the time of the initial pat down search about the presence of Fentanyl is a question that relates to dangerous circumstances and is not a s. 10(b) breach.

[55] Mr. Arana was kept at the scene of the search for approximately 30 minutes after he invoked his right to speak to a lawyer. During this period of time, D.C. Stojic, through P.C. Richards, asked Mr. Arana two questions, whether there was Fentanyl and for the location of the key to the safe. He testified that he asked the question about Fentanyl for reasons of officer and public safety and that he asked the question about the key to the safe to minimize the effect of the search on Mr. Arana and to avoid damaging his personal property.

[56] Mr. Arana argues that the officers’ conduct was inconsistent with a concern about public safety. If the police actually had a concern about safety, they could have opened the safe outside instead of in a confined space. Asking Mr. Arana about whether there was any Fentanyl arguably increased the risk to the officers. Instead of opening the safe in an open area which would minimize the risk of injury, the officers relied on the statement of Mr. Arana and opened the safe in a poorly ventilated area where there were a number of officers present. As noted by Copeland J. in R. v. Khan, 2019 ONSC 3442:

[89] Further, I find that, objectively viewed, the step Detective Fraser took of questioning Mr. Khan about what the substance was did not promote the goal of officer safety. Indeed, it created more risk to officer safety. When the statement was elicited, and Mr. Khan said it was cocaine, Detective Fraser proceeded to open the bag to do a nik test. Thus, relying on Mr. Khan’s statement that the substance was cocaine, Detective Fraser opened the bag and risked exposing himself and others in the apartment to the substance. Thus, eliciting the statement in order to decide whether to do the nik test then and there did not promote officer safety; rather, it put it at risk. And it did so in circumstances where the creation of the risk caused by opening the bag was entirely unnecessary. Detective Fraser could simply have put the substance in an evidence bag and taken it to the property bureau to be lodged. It could then be dealt with in more controlled circumstances. In some circumstances, it may be appropriate for a court to afford a level of deference to a police officer’s decisions about officer safety. Respectfully, this is not one of them.

[57] In any event, I find that at the time Mr. Arana was asked the questions about Fentanyl and the key to the safe, there was no urgency or danger that would justify asking the questions after Mr. Arana had invoked his right to counsel. The safe had been discovered. It could have been taken outside or to the police station where it could have been opened in a safe manner. D.C. Stojic testified that the safe could have been pried open without the key. I conclude that the two questions asked while Mr. Arana was waiting to be transported to the station were a breach of his s. 10(b) Charter rights.

[58] The Defence also argues that D.C. Stojic interviewed Mr. Arana at the station before he was provided an opportunity to speak with counsel. Mr. Arana testified that the interview took place in the CIB room at the station and lasted 10 - 15 minutes. He later stated that D.C. Stojic asked only a few questions during the interview. According to Mr. Arana, D.C. Stojic asked if he wanted to co-operate with the police and provide names. Mr. Arana did not answer his questions. When it was clear Mr. Arana would not provide any information, D.C. Stojic left the room. A phone was then put under the door to allow Mr. Arana to speak to counsel. The Defence argues that D.C. Stojic’s efforts to interview Mr. Arana before he spoke to counsel was a significant breach of his s. 10(b) rights.

[59] The Crown argues that the interview with D.C. Stojic did not take place, and that Mr. Arana is mistaken. D.C. Stojic denies meeting with Mr. Arana at the station. The Crown also states that the timeline does not allow sufficient time for the interview to have taken place. The search ended at 20:10. It took P.C. Richards 24 minutes to drive to the station. Even if there was less traffic for D.C. Stojic, it would have taken at least 15 – 20 minutes for him to drive to the station. Therefore, the earliest D.C. Stojic could have met with Mr. Arana was 20:25-20:30. If the interview took 15 minutes, Mr. Arana would not have been able to speak to counsel at 20:33.

[60] The Crown also argues that Mr. Arana confused D.C. Heineman with D.C. Stojic. At 22:40 on the day of the arrest, D.C. Heineman met with Mr. Arana to advise him of the additional charges and to obtain information for the show cause hearing. D.C. Heineman described Mr. Arana with his arms folded and not answering his questions. Mr. Arana did not recall meeting with D.C. Heineman at the station.

[61] I have some concerns with D.C. Stojic’s testimony. His evidence was, at times, confusing and argumentative. He professed having difficulty understanding the questions asked on cross-examination. However, even on Mr. Arana’s evidence, I am unable to conclude that D.C. Stojic met with Mr. Arana at the station on the day of the arrest. Mr. Arana testified that the interview with D.C. Stojic lasted 10 - 15 minutes. Based on the timeline there would have been insufficient time for D.C. Stojic to return from the search and complete a 10 - 15-minute interview before Mr. Arana spoke with counsel. Mr. Arana also testified that he met with only one officer in the interview room at the station on the day of the arrest. He could not recall meeting with D.C. Heineman. D.C. Heineman testified that he met with Mr. Arana at 22:40. This meeting is not disputed by the Defence. If Mr. Arana’s evidence is accepted with respect to the length of the meeting and that he met with only one officer at the station, he could not have met with D.C. Stojic.

[62] I acknowledge that Mr. Arana had difficulty estimating time when he was in the interview room. He may have been mistaken with respect to the length of the interview with D.C. Stojic. He may have also been mistaken with meeting only one officer at the station. He may have confused his meeting with D.C. Stojic the next day with the day of his arrest. Regardless, on the evidence before me, I am unable to conclude that D.C. Stojic attempted to interview Mr. Arana at the station on the day of the arrest.

2. Was there a breach of Mr. Arana’s s.8 right to reasonable search?

[63] Mr. Arana argues that there were no reasonable grounds to justify the level 3 search. It is his position that the search was conducted as a matter of routine. The Defence is not taking the position that the manner in which the search was carried out was unreasonable. The Crown argues that the level 3 search was justified in all the circumstances.

[64] There is no dispute that level 3 searches represent a significant invasion of privacy and can be a humiliating and degrading experience. Police require reasonable grounds to justify a level 3 search. A routine level 3 search, even if carried out in a reasonable manner will violate s. 8 of the Charter where there is no compelling reason to perform the search: R. v. Golden, 2001 SCC 83, at paras. 83 and 95.

[65] Sgt. Garrow testified that his decision to order a level 3 search was based at least in part on the fact that Mr. Arana was charged with drug offences. Also, he was concerned that Mr. Arana was found with latex gloves that could have been used to handle dangerous drugs such as Fentanyl.

[66] I am not satisfied that the fact Mr. Arana was facing drug charges is sufficient to justify the level 3 search. There is no evidence that Mr. Arana was observed trying to hide anything on his body that could only be discovered by a level 3 search.

[67] I am also of the view that the level 3 search was not justified because Mr. Arana was being placed into custody. There is no evidence that Mr. Arana would be in contact with other prisoners while held at the police station. Although there is a greater need to ensure that prisoners are not concealing weapons or drugs when they enter the prison population, this is not the case when the person is being held overnight in a private cell in a police station. In R. v. Golden, 2001 SCC 83, the Supreme Court referenced the decision of Duncan J. in R. v. Coulter, [2000] O.J. No. 3452:

Duncan J. notes that whereas strip searching could be justified when introducing an individual into the prison population to prevent the individual from bringing contraband or weapons into prison, different considerations arise where the individual is only being held for a short time in police cells and will not be mingling with the general prison population. While we recognize that police officers have legitimate concerns that short term detainees may conceal weapons that they could use to harm themselves or police officers, these concerns must be addressed on a case-by-case basis and cannot justify routine strip searches of all arrestees: at para. 97.

[68] I conclude that the level 3 search was not justified in the circumstances of this case, and it was a breach of Mr. Arana’s s. 8 Charter rights. There is no evidence to support a finding of reasonable and probable grounds that Mr. Arana had secreted drugs on his person. Mr. Arana was not being introduced to the general prison population, but instead was held overnight in a private cell at the police station.

3. Should the Evidence be Excluded?

Obtained in a Manner

[69] Section 24(2) of the Charter provides that the evidence shall be excluded if it is established that the evidence was obtained in a manner that infringed a Charter right and the admission of the evidence would bring the administration of justice into disrepute. The threshold issue is whether there is a causal, temporal or contextual connection between the evidence obtained and the Charter breach: R. v. Pino, 2016 ONCA 389, at paras. 48 and 49.

[70] I considered the following factors to determine whether the “obtained in a manner” requirement has been satisfied:

• the approach should be generous, and consistent with the purpose of s. 24(2);

• the entire chain of events between the accused and the police is to be considered;

• the requirement may be met where the evidence and the breach are part of the same transaction or course of conduct;

• the connection between the evidence and the breach may be causal, temporal or contextual or any combination of the three; and

• the connection cannot be either too tenuous or too remote: R. v. Pino, at para. 72.

[71] There were Charter breaches before and after the discovery of the evidence. After Mr. Arana invoked his right to speak to counsel, the police did not immediately transport him to the station to allow him to speak to a lawyer in private. In addition, after Mr. Arana stated that he wanted to speak to his lawyer, the police failed to hold off on questioning him. After the evidence was discovered, Mr. Arana was subject to a level 3 search that was not justified in the circumstances.

[72] The seizure of the evidence and the Charter breaches were relatively close in time and were part of the same transaction. I am satisfied that there was a sufficient nexus between the Charter violations and the discovery of the evidence. I conclude that the evidence was “obtained in a manner” that breached Mr. Arana’s Charter rights.

Consideration of the Grant Factors

[73] In determining whether evidence should be excluded because of a Charter breach, the court must assess the effect of admitting the evidence on the public’s confidence in the justice system. The court is to consider and balance the three Grant factors; the seriousness of the Charter infringing state conduct, the impact of the breach on the Charter protected interest of the accused, and society’s interest in the adjudication of criminal cases on their merits: R. v. Francois, 2019 QCCQ 276, at para. 68.

1. Seriousness of the Breach

[74] In determining the seriousness of the Charter infringing conduct, the court must situate the conduct on a scale of culpability: R. v. Paterson, 2017 SCC 15, at para. 43. As noted in R. v. Grant, 2009 SCC 32:

[The] admission of evidence obtained through inadvertent or minor violations … may minimally undermine public confidence in the rule of law. […] the admitting of evidence through a willful and reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law: at para. 74.

Section 10(b) - Implementation Breach

[75] There was approximately a two-hour delay from when Mr. Arana asked to speak to counsel and when he eventually spoke to his lawyer. I accept the Crown’s argument that much of the delay was related to valid unavoidable reasons. It took approximately 24 minutes to drive from the scene to the station. There was a wait of about 30 minutes before they were cleared to enter the booking hall. The booking procedure took about 8 minutes. After the booking procedure was complete, P.C. Richards looked up the name and number of Mr. Arana’s lawyer and placed a call.

[76] However, I find that the delay between when Mr. Arana invoked his right to speak to counsel and when he left for the station, is a breach. As stated earlier, there was no valid reason for keeping Mr. Arana at the scene after he had invoked his right to counsel.

[77] I am not satisfied that there was a deliberate attempt to suspend Mr. Arana’s rights. D.C. Stojic testified that he instructed P.C. Richards to remain on the scene with Mr. Arana to avoid an unnecessary trip to the station if no evidence was discovered on the search. Although it is my view that the police ought to have transported Mr. Arana to the station once he exercised his right to counsel, the motivation of the officer is a relevant factor. There is no evidence of a deliberate attempt to suspend Mr. Arana’s rights. In fact, D.C. Stojic had arranged for the transporting officers in advance which would minimize the delay in transporting Mr. Arana to the station. Also, the police did not wait until the search was completed at 20:10 before transporting him to the station. Although the delay in implementation is a breach, I find it is on the less serious end of the spectrum.

Section 10(b) - Failure to Hold Off Breach

[78] D.C. Stojic asked P.C. Richards to question Mr. Arana with respect to the presence of Fentanyl and the key to the safe after he had exercised his right to counsel. D.C. Stojic stated that he was concerned about the presence of Fentanyl for the safety of the officers and others in the residence. He also stated that he asked about the location of the key to allow the police to complete the search more efficiently and to avoid damaging the safe. The Crown argues that the police motivation for asking the questions mitigates the seriousness of the breach.

[79] When an arrested person invokes the right to speak to a lawyer, the police are to hold off on asking any questions, except in cases of urgency or danger. Here there was no danger or urgency. I do not accept D.C. Stojic’s reasons for questioning Mr. Arana. If in fact he was concerned about the presence of Fentanyl for safety reasons, he could have removed the safe and opened it outside the house. He would not have relied on Mr. Arana’s statement that there was no Fentanyl. Also, the safe appeared to be a fairly inexpensive plastic safe. D.C. Stojic stated that the safe could have been easily pried open without a key. Even if a key was required, the safe had been secured by the police and they could have waited until after Mr. Arana spoke to counsel before opening the safe.

[80] The police officers are experienced and ought to have known better than to ask any questions of Mr. Arana after he expressed his wish to speak to counsel. However, the questions asked of Mr. Arana were fairly limited, and there was no attempt to obtain a comprehensive statement. Safety was at least a factor in asking the question about Fentanyl. I am unable to conclude that the police acted in bad faith. I find the breach to be moderate on the spectrum of culpability.

Section 8 – Level 3 Search

[81] Sgt. Garrow testified that he ordered a level 3 search for safety concerns. Mr. Arana had been arrested for a drug charge and the presence of the latex gloves created a concern that dangerous substances were involved. As noted above, I do not find that the level 3 search was justified in the circumstances, however, Sgt. Garrow’s motivation is a relevant consideration in determining where the conduct falls on the spectrum.

[82] I conclude on the evidence that Sgt. Garrow was acting in good faith in ordering the level 3 search. The search was conducted in a reasonable and respectful manner. The Defence is not taking the position that the manner in which the search was carried out was unreasonable. I acknowledge that a level 3 search is “highly intrusive, humiliating and degrading”: R. v. Golden, 2001 SCC 83, at para. 56. However, I find that on the scale of culpability, the breach was on the less serious end of the spectrum of culpability.

2. Impact of the Breaches

[83] For the second branch of the Grant test, the court must determine the impact of the breaches on the accused. Mr. Arana’s rights pursuant to s. 10(b) and s. 8 were infringed. However, I find that the impact of those breaches on Mr. Arana was limited.

[84] There was no connection between the breaches and the discovery of the evidence. The safe had been discovered and seized pursuant to a valid search warrant. The safe was not discovered because of the Charter breaches. The safe was going to be opened either by force or with the key, in any event. No evidence was obtained on the level 3 search. As noted in R. v. Pileggi, 2021 ONCA 4, at para. 120:

[120] I would not describe the impact on the appellant’s Charter-protected interests as serious. As noted above, at para. 107, although the appellant surpassed the “obtained in a manner” threshold, there was no causal connection between the discovery of the evidence and the breach of the appellant’s right to counsel. In appropriate cases, this may mitigate the infringement: see Rover, at para. 43; Grant, at para. 122.

[85] Similarly in R. v. Khan, 2019 ONSC 3442, at para. 110, the court found that the impact of the breach on the accused’s rights was minimal because the Charter breaches did not lead to the discovery of the evidence:

[110] On the second Grant factor, I find that in relation to the physical evidence, the impact of the breaches on Mr. Khan’s Charter rights was minimal. The items would have been discovered absent the breaches, and indeed had already been discovered prior to the second Charter breach, the eliciting of the statement: Grant, at para. 122.

[86] The circumstances of this case are similar to R. v. Do, 2009 ONCJ 301. In that case, the police executed a search warrant. They found a safe. The officer asked for the key to the safe. The defendant provided the location of the key but there was also a combination lock. The defendant was then asked for the combination. The combination was provided. Inside the safe was a handgun. The court found there was an infringement of the accused’s s. 10(a) and 10(b) rights. Although the court excluded the accused’s utterances, the physical evidence was not excluded. The court stated at paras. 49, 50:

[49] The statements of the defendant are clearly conscriptive and would significantly affect the fairness of the trial.

[50] I contrast this with the evidence of the gun itself. It was real evidence and the officers could have obtained it by other means. (They in fact had it in their possession pursuant to a lawful search, and only the lock kept them from knowing what they had). I note that the defence does not seek to have this evidence excluded.

[87] Here, the Crown is not seeking to tender any utterances made by Mr. Arana. The safe had been seized pursuant to a valid search warrant. The safe was going to be opened regardless of whether Mr. Arana provided the police with the location of the key. The infringement of Mr. Arana’s s. 10(b) rights had no bearing on the discovery of the cocaine. In addition, no evidence was discovered on the level 3 search. The absence of any causal connection between the breach and the obtaining of the evidence is a factor mitigating the impact of the breach on the accused’s Charter-protected interests: R. v. Rover, 2018 ONCA 745, at para. 43. This factor favours the admission of the evidence.

3. Society’s Interest in Adjudication on the Merits

[88] The factor of society’s interest in an adjudication on the merits, generally pulls toward the inclusion of evidence. This is particularly the case where the evidence is reliable and critical to the Crown’s case: R. v. McGuffie, 2016 ONCA 365, at paras. 62, 63.

[89] Here, Mr. Arana is facing serious charges arising out of the possession of approximately 1kg of cocaine. The cocaine was seized pursuant to a properly issued search warrant. The evidence is reliable physical evidence that is essential to the Crown’s case.

[90] I conclude that society’s interest in the adjudication on the merits, warrants the admission of the physical evidence. As stated by the Court of Appeal in R. v. Pileggi, 2021 ONCA 4:

[126] In terms of society’s interest in adjudication on the merits, the evidence in question is reliable and this was not compromised by the infringements of the appellant’s s. 10(b) rights. The discovery of the drugs lies at the heart of the Crown’s case. Ultimately, the admission of the evidence would enhance the truth-seeking function of the trial. Its exclusion, based on constitutional violations that were only vaguely connected to its discovery, would damage the repute of the justice system.

[127] The long-term repute of the administration of justice does not favour exclusion of the evidence. The failings of the police were situation-specific, but serious nevertheless. However, the evidence was discovered by virtue of a properly issued search warrant that police executed in a reasonable manner. In these circumstances, exclusion of the evidence would only serve to indirectly punish the offending officers, rather than aligning with the overall purpose of s. 24(2) – vindicating the long-term repute of the criminal justice system: Hobeika, at para. 90.

[91] I conclude that in the circumstances of this case, the admission of the evidence would better serve society’s interest in the adjudication of the merits than would its exclusion. This factor favours the admission of the evidence.

Balancing of the Grant Factors

[92] I must determine whether, on balance, the admission of the evidence “obtained in a manner” that infringed the Charter, would bring the administration of justice into disrepute. The balancing is qualitative in nature and is not capable of mathematical precision: R. v. Grant, 2009 SCC 32, at paras. 85 and 140.

[93] Mr. Arana’s s. 10(b) and s. 8 Charter rights were infringed. I found the Charter breaches to be on the less serious to moderate range of the spectrum. The Charter breaches did not lead to the discovery of the evidence and therefore had a limited impact on Mr. Arana. The admission the evidence promotes society’s interest in the adjudication of the merits.

[94] I am satisfied that a proper balancing of the Grant factors favours the admission of the evidence.

DISPOSITION

[95] I conclude that the physical evidence discovered during the execution of the search warrant is admissible. Mr. Arana’s application to exclude the evidence is dismissed.

DATE: October 31, 2022