SUPERIOR COURT OF JUSTICE – ONTARIO
RE: HIS MAJESTY THE KING, Plaintiff
v.
ALEX NARCESSO BARQUERO MORALES, KENNY MANNUAL BRITO ROSALES, DENNIS RUFINO, MEJIA GARCIA, CARLOS MAURICIO MEJIA OLMOS, CHAN LAURENT TAN, and LUIS FELIPE ZAMORA HORTA, Defendants
BEFORE: S.F. Dunphy J.
COUNSEL: Charn Gill, for the Applicant Defendant Denis Mejia Garcia
George Gray, for the Applicant Defendant Carlos Mejia Olmos
Michael Bartlett for the Applicant Defendant Luis Zamora Horta
Hubert Gonzalez for the Applicant Defendant Kenny Brito Rosales
Roland Roy for the Defendant Alex Barquero Morales
Leila Kadri for the Defendant Chan Laurent Tan
Patrick Travers for the Respondent Crown
HEARD at Toronto: October 3-12, 2022
REASONS FOR DECISION: Pre-Trial Charter Applications
1The defendants (excepting Mr. Rosales) are charged with breaking and entering into nine residential premises in the Greater Toronto Area (Hamilton, Halton, Peel, York and Toronto) between July 29 and August 1, 2019. All six (including Mr. Rosales) are also charged with possession of proceeds of crime in excess of $5,000 in value.
2The six defendants were arrested travelling together in two cars that police were following as part of an investigation begun three days earlier. The scope of the investigation expanded from a single incident to a review of nine break and enter incidents in the region that appeared to have been carried out by the same group of people. Following their arrest, the two cars and a dumpster into which occupants had been emptying some contents of the cars were searched and property alleged to have been stolen during various of the break and enter incidents was located and seized. The searches in question were all undertaken without warrant incident to the arrest of the accused.
3Four of the defendants (all save Mr. Tan and Mr. Barquero Morales) have brought similar applications seeking exclusion of some or all of the evidence seized by police alleging violations of their rights under sections 8, 9, 10(a) and 10(b) of the Charter of Rights and Freedoms. The points of differentiation of the four applications will be highlighted below as required.
4The four applications were heard together in a combined voir dire. Twelve police witnesses with connections to the investigation, arrest and booking of the applicants were called by the Crown. In addition to the evidence called by the Crown in chief, two applicants (Mr. Mejia Olmos and Mr. Mejia Garcia) elected to provide viva voce testimony and filed agreed statements of fact negotiated by each with the Crown. Mr. Mejia Olmos also filed an affidavit of Mr. Bacchus establishing certain facts in relation to a lawyer whom Mr. Mejia Olmos consulted. The agreed statements of fact arrived at between the Crown and two of the applicants were filed and it was agreed that the facts so agreed should be generally applicable to all four applications. Stated differently, while not all evidence was relevant to all four applications, all of the evidence is, to the extent relevant, agreed to be admissible to all four.
5Each of the four applications challenges the lawfulness of the arrest of the accused applicant on the basis of an alleged lack of reasonable grounds for their arrest in violation of their rights under s. 9 of the Charter. It is alleged that the searches incident to arrest that followed, having been undertaken without warrant under the auspices of an unlawful arrest, violated the s. 8 Charter rights of the accused applicants. It is also alleged that the defendants were not promptly advised of the reason for their arrest in a language they understood contrary to s. 10(a) of the Charter and that they were not informed of their right to instruct counsel without delay in a language they understood nor were they given their right to so to do without delay as required by s. 10(b) of the Charter. Mr. Mejia Garcia alone seeks remedies in relation to what he alleges was an abuse of his s. 8 Charter rights by filming him on the toilet in his holding cell.
6The accused are scheduled to be tried before me presiding with a bi-lingual jury on January 9, 2023 in Toronto.
7For the reasons that follow, I find that police had reasonable grounds for arresting the applicants pursuant to s. 495(1)(a) of the Criminal Code and their arrests were thus neither arbitrary nor contrary to s. 9 of the Charter. The investigation to that point had uncovered reasonable grounds to conclude that an organized team of at least four men possibly supplemented by two drivers had been behind a series of break and enter crimes in the region. Two rented vehicles, both rented by the same Montreal-based man, had been connected to these incidents. Following one of the vehicles after the return to the rental agency of the other led police to the six accused some of whom who were observed loading several bags into the remaining rental vehicle and another vehicle with Quebec plates. It was reasonable for police to conclude that the six men in the two Quebec-plated vehicles were the ones targeted by the investigation. The searches of the two vehicles in which the accused were travelling conducted incident to those arrests were similarly lawful. I find that police informed each of the accused of the reason for their arrest promptly after their arrest. In the case of those applicants with limited English proficiency, I found no violation of their s 10(a) Charter rights stemming from failure to have anticipated those language difficulties prior to their arrest and that each received a satisfactory translation of the reason for their arrest within a handful of minutes from a native French speaking officer who happened to be at the scene and then later during the parading and booking process when a bilingual officer was brought in to translate for them as needed. Finally, while I have found that the s. 10(b) Charter rights of Mr. Mejia Olmos and Mr. Zamora Horta were violated by reason of delay in implementing their rights to counsel that has not been satisfactorily explained, this is not a case for the application of remedies pursuant to s. 24(2) of the Charter. There is no evidence that the implementation delays were intentional or systemic. The only potentially relevant evidence obtained during the implementation delay time frame was the seizure of the clothing worn by all of the accused at the time of their arrest. The existence and relevance of this evidence in question was both visible to and well-known by police at all times and the Charter breaches described thus played no part in the discovery of the evidence in question.
8In the case of Mr. Mejia Garcia’s application in relation to the surveillance camera in his holding cell, I find that he did receive an explanation of its presence during the booking process. The presence of the camera was at all events plain and obvious inside the cell in which he spent 24 hours. He also received an explanation of how to use the privacy screen sheet that he was issued to secure his privacy while using the toilet. While he appears to have ignored or forgotten that briefing and the presence of the camera when using the toilet just prior to his transfer from the holding cell the next day, there was no breach of his s. 8 Charter rights. There is no evidence that the video clip in question was seen by as much as a single person prior to Mr. Mejia Garcia’s recently-retained counsel having requested its production only a few weeks ago and thereafter it has only been circulated to counsel as part of the disclosure process. The exhibit was sealed upon being filed and will remain so unless there is a valid reason for its unsealing consistent with the reasonable privacy and dignity concerns of Mr. Mejia Garcia.
9The four applications must accordingly be dismissed.
Issues to be decided
10The following are the issues raised by these applications:
a. Did the police possess reasonable grounds to arrest each of the six accused persons when they were arrested on August 2, 2019?
b. Did the searches violate the rights of any of the applicants pursuant to s. 8 of the Charter?
c. Did the police violate the rights of any of the applicants under s. 10(a) of the Charter?
d. Did the police violate the informational rights of any of the applicants under s. 10(b) of the Charter?
e. Did the police violate the implementation rights of any of the applicants under s. 10(b) of the Charter?
f. Were the s. 8 rights of Mr. Mejia Garcia violated by the videotaping of his cell including the toilet area thereof?
g. What remedies if any flow from any violations of the Charter rights of the accused applicants?
Analysis and discussion
(a) Did the police possess reasonable grounds to arrest each of the six accused persons when they were arrested on August 2, 2019?
11This is not a case of investigative detention. Police officers might have detained the six accused persons initially and exercised such investigative powers as are available to them in those circumstances. That, however, is not what happened here. I am not concerned with what might have been but with what was. Police initially approached the accused and detained them for the purpose of arresting each of them for break and enter and did so. It is on that basis that their actions must be assessed.
12Section 495(1)(a) of the Criminal Code authorizes a peace officer to conduct an arrest without warrant where the officer has “reasonable grounds” for believing that each of the persons arrested had committed an identified indictable offence. At the time the arrest decision was made, the identified arrestable offence was break and enter1 and that is the offence for which reasonable grounds at the time of the arrest must be established.
13The Supreme Court of Canada examined the meaning of “reasonable and probable grounds” in the case of R. v. Storrey, 1990 125 (SCC), 53 C.C.C. (3d) 3162. The Court’s decision was delivered by Cory J. who summarized the law in this regard as follows (at CCC p. 324):
In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.
14While the test is a two-part test, considering as it does both the subjective belief of the arresting officer and the objective reasonableness of that belief from the perspective of a reasonable person standing in the shoes of the officer, the standard of proof is not a particularly high one. It is not, for example, as high as requiring evidence providing proof on a balance of probabilities. In R. v. Brown, 2012 ONCA 225 the Court of Appeal emphasized that the objective component of the test considers the objective reasonableness of the officer’s belief considering “the totality of the circumstances” (at para. 18-19). The arrest decision having been made by Det. McMullin, it is his subjective belief that must be considered.
15Between July 31 and August 1, 2019, the combined efforts of the Criminal Investigation Bureau of the Oakville and Burlington detachments of the Halton Regional Police Service had assembled a compelling body of evidence to the effect that up to six individuals had been operating in an organized fashion to conduct a series of rapid “hit and run”-type residential break-ins in the region. A total of five incidents were examined that showed similar features in terms of the methods employed and the persons involved. Security camera footage obtained from homeowners of the affected properties or from the neighborhood resulted in police confirming that two vehicles – a Jeep and a Ford – were involved in these incidents. Video and still images from the security cameras provided good quality photographs of the four “inside” men who actually entered some or all of the premises and police anticipated that one or two additional persons not captured on the video clips were acting as drivers of the two vehicles. The five incidents consisted of two incidents in Oakville, one in Burlington and one each in Toronto and York Region.
16Database searches of the license plates of the two vehicles revealed that both were rented by the same man - Mr. Chan Laurent Tan – using a Montreal address. The Jeep was rented from a Mississauga rental agency and was scheduled to be returned to the agency by 9:30 am on August 2, 2019. The Ford was rented in Montreal and not scheduled to be returned until later in August. A check with Montreal police brought investigating officers the names and mugshots of four individuals who were known associates of Mr. Tan. Two of these – Mr. Barquero Morales and Mr. Zamora Horta – were ultimately among those arrested although no positive identification of either was made prior to the actual arrests that took place on August 2, 2019.
17The two teams got together on August 1, 2019 to consider their next move. Officer Brunelle of the Burlington detachment was of the view that time may be of the essence given the information regarding the scheduled return of the Ontario rental and the prospect that the team responsible for these incidents may be from Montreal and headed back to Quebec imminently. Both Officer Brunelle and Det. McMullin (the ranking officer on the investigation teams and attached to the Oakville CIB) had examined the video and photographic evidence and concluded that the four “inside” men whose images had been captured appeared to be Hispanic or South American. Distinctive clothing worn by the four inside men was visible on many of the images collected. It was not then known if the four persons of interest provided by Montreal police were the same people as were observed in the various security camera footage collected.
18Following this meeting, the decision was made to assemble a surveillance team to observe the expected return of the Jeep Cherokee in Mississauga the next morning and to follow either of the vehicles of interest should the opportunity arise. If the whole team of suspects appeared to be present, a “take-down” or arrest was expected to occur. Det. McMullin briefed Det. Wright of the Oakville Street Crime Unit who was assigned to assemble a surveillance unit to assist the investigation team which at this point consisted of members of both the Burlington and Oakville detachments of the Halton Region Police Service.
19On the morning of August 2, 2019, the combined surveillance and investigation teams converged on the area of the car rental agency in Mississauga. The combined teams received a briefing that included the names of the persons of interest and the particulars of the two known vehicles of interest (the Jeep and Ford). A central note-taker was appointed and the team communicated by radio. Det. Wright and Det. McMullin were in charge of the surveillance team and the investigation teams respectively. The former outranked the latter but the two were in communication by telephone and radio as matters progressed.
20Det. Wright observed the Jeep arrive in the area of the car rental agency at about 10 am and enter the underground garage of the building housing the agency. He was able to identify and communicate to the team distinct features of the driver of the Jeep and took photographs. He also observed the Ford arrive in the area a few minutes later and park outside the building where the rental agency was located. He took photographs of the driver of that vehicle as well when he emerged from the car. Particulars of the description of the appearance and clothing of both men were communicated over the radio to the team and recorded in the central notes. The notes make no specific reference to the ethnicity of either of them although the central note-taker (Officer Brown) believed that one of the two drivers had been identified as Mr. Tan but had no note to that effect. After a time, the driver of the Jeep emerged on foot from the building and took the wheel of the Ford, the man who had driven the Ford there getting back into the vehicle on the passenger side.
21The Ford containing the two men was then followed by police to an address on Tasha Drive in Mississauga. The vehicle had been briefly lost en route but was swiftly re-located and positively identified. The Tasha Drive address had not previously been connected by police to the investigation.
22Surveillance of the now parked Ford was re-established. In addition to the Ford, another vehicle (a Buick) was also observed in front of the residence. The Buick also had Quebec plates and a check on the plate revealed it to be registered in the name of Mr. Brito Rosales, a defendant in this proceeding but otherwise a name that had not yet emerged in the investigation to that point.
23In the course of the following minutes a total of six males were observed in and around the two vehicles loading various bags including garbage bags from the house into both vehicles prior to their departure. Det. McMullin, after consulting with Det. Wright decided that the occupants of both vehicles were arrestable for break and enter and the decision was made to effect a “take-down” of both vehicles as soon as a safe opportunity to do so presented itself. This order was communicated to the team of police officers on the team. The final call on when to execute this order was to be left to Det. Wright as head of the surveillance team.
24The two cars and their six occupants left the Tasha Drive area and proceeded to drive in tandem a short distance away – about a kilometer – before coming to a stop at a strip mall beside a dumpster. The take down order was then issued and multiple unmarked police cars that had been following the two vehicles to that point converged on the spot. At the time police arrived, some of the occupants of the two vehicles had been observed placing some garbage bags from the cars into the dumpster. The take down order was given at 10:56 am.
25In the following minutes, police blocked the two vehicles in place with their unmarked cars and proceeded to arrest the four occupants of the Ford and the two occupants of the Buick (the six accused men before me). As instructed by Det. McMullin, each of the six was told that they were arrested for the crime of break and enter.
26Did Det. McMullin subjectively believe that reasonable grounds existed to arrest the four applicants? I find that he did.
27Det. McMullin testified that based on the product of the investigation reviewed by him he had concluded that the five break and enter incidents being investigated (two in Oakville and one each in Burlington, Hamilton and York Region) were connected, had been committed by the same group of men (four of whom had been captured in still and video images in or around the residences in question) as well as two identified automobiles rented by Mr. Tan. Up to six men might therefore be implicated. Two men were observed driving the same two vehicles of interest the next day at the rental agency and one of them was followed back to the Tasha Drive residence where four other men and another vehicle with Quebec plates were located. Det. McMullin believed that the six men seen loading and getting into these two vehicles were the same men who had committed the five offences then being investigated. While he did not know that the observed bags being loaded into the vehicles contained stolen goods, he clearly expressed his belief that they likely did even if none of his officers had yet seen the contents of any of them.
28I find that Det. McMullin believed in good faith that there were reasonable grounds for believing that the six persons in the two vehicles followed by police from the Tasha Drive home to the nearby strip mall were the same persons who had been involved – whether as drivers or as “inside men” – in some or all of the five break and enter incidents being investigated.
29Was Det. McMullin’s belief that the four applicants were involved in the commission of the break and enter incidents being investigated objectively reasonable?
30The investigation to that point had established very solid grounds for inferring that the same group of four men were involved in some or all of the incidents being investigated using two vehicles driven by persons unknown but both of which were rented by Mr. Tan from Montreal.
31After the Ontario-rented vehicle was returned to the agency and the Quebec-rented vehicle was followed to Tasha Drive, a further vehicle was found to be associated with the residence to which Mr. Tan’s remaining rental car drove and that car too had Quebec plates. Both cars were thus bearing Quebec registrations and a total of six males were observed either in those vehicles or loading bags – including garbage bags – into one of the vehicles. The volume of material depicted as stolen from just one of the break-ins being investigated was consistent with bulk sufficient to require garbage bags to transport it. While garbage bags might have contained mere garbage, the normal place for residential garbage is the curb on garbage day and not in the back of two cars with out-of-province plates. The potential out-of-province connection of the perpetrators of the crime was an objectively strong one and the likelihood of stolen goods being loaded into two Quebec-plated cars for a return trip to that Province was, in the context, an eminently reasonable one.
32All of this assembled information was corroborative of the thesis discussed by investigators in their August 1, 2019 meeting that the same group was responsible for all the incidents. Nothing observed that day, including the visual and communicated descriptions of the men observed, clashed with or contradicted any material assumption made during the investigation to that point.
33That same state of affairs continued to prevail after the arrest decision was made but before it was acted upon. The two vehicles drove together to the same place (a nearby mall) and proceeded to discard some items into a dumpster located there. The inference that the vehicles and their occupants were acting in a joint fashion reasonably supported the conclusion Det. McMullin had already reached but was still in a position to countermand had contradictory facts come to light. None of the additional information received caused him to change his mind about his arrest order.
34For the foregoing reasons, I conclude that police had reasonable grounds to arrest the six individuals arrested shortly after 10:56 am for break and enter. There were reasonable grounds to believe that the same four men and two drivers were working together as a team to undertake the subject break and enters and that the four men and two drivers apprehended were the same persons.
(b) Did the searches violate the rights of any of the applicants pursuant to s. 8 of the Charter?
35All parties agree that if I find that the arrests of the six were lawful, then a search of the two vehicles incident to such arrest was also lawful. If the arrests were unlawful, then further analysis is required to assess the constitutional foundation of the s. 8 challenges made by each of the four applicants.
36Having found that all six arrests were lawful arrests effected on the strength of reasonable grounds, there is no dispute that the police were thereafter clothed with the common law rights of a peace officer to conduct a search incident to arrest of the persons arrested and of the vehicles they occupied when arrested.
37I find that none of (i) the searches of the persons of the applicants at the scene of their lawful arrests, (ii) the search of the dumpster or (iii) the subsequent search of the two vehicles when towed to the police station violated the s. 8 Charter rights of any of the applicants. This aspect of each of their applications must be dismissed.
(c) Did the police violate the rights of any of the applicants under s. 10(a) of the Charter?
38Each of the four applicants alleges that police failed to inform them of the reasons for their arrest immediately upon their arrest as required by s. 10(a) of the Charter by reason of the delay in informing them of the reason for their arrest and or the failure to do so in a language they understood.
39There are certain facts that are common to all four applications and certain facts unique to each.
40The “take-down” order was given at 10:56 am. It took only a few minutes for the six arresting officers to get their vehicles into the parking lot of the mall where the arrests were to take place, to exit their respective vehicles and to detain and restrain each of the six accused with handcuffs.
41The arrest scene remained a dynamic one for a few minutes after this. Other officers from the surveillance team continued to arrive even as the first six were completing the process of detaining and restraining the individual accused person they were responsible for. The arrest scene itself, including the possible evidence tossed into the dumpster, needed to be secured and onlookers from the general public kept at a safe distance. While the take down and arrest proceeded smoothly and no resistance from any of the accused was manifested or arms found, these facts could not be known in advance and all contingencies had to be dealt with.
42Some arresting officers advised the accused of the reason for their arrest while the handcuffs were being applied in the first moments of their detention and read the caution and rights to counsel a few minutes later after ensuring the arrest scene itself was secure. Others waited until, as they put it, the “dust settled” at the arrest scene before reading to the accused person the full notice as stated on the back of their police notebook including notice of the reasons for arrest and rights to counsel. The applicants thus received notice of the reasons for their arrest over an approximately sixteen minute time span from about 11 am until about 11:16 am. All six were initially advised of the reasons for their arrest – break and enter – in English.
43I am disinclined to second guess operational decisions made in a dynamic environment in hindsight and to such the minute level suggested. Given the dynamic situation prevailing at the outset described earlier, I find that it was reasonable for arresting officers to secure the accused for whom they had assumed responsibility and then verify that the broader arrest scene was both secure and safe. The fifteen or so minutes taken in this case is within the range of operational flexibility that police must be allowed to operate safely in this type of environment even if tending towards the outer edge of that range.
44I find that the operational delay that occurred in this case prior to advising each applicant of the reason for his arrest in this case was within the constitutionally mandated parameters of informing each accused person “promptly” of the reason for his arrest.
45Were the applicants promptly advised of the reason for their arrest in a language they could understand?
46None of the four applicants speaks English as a first language and for at least two of them, French is their second fluent language. However, the s. 10(a) Charter issue is not the native language of the accused nor whether the accused was as fluent in English as in another language but whether the accused in fact understood what he or she was being informed of.
47Fluency in and understanding of a language are quite different concepts. Fluency considers the ability to understand a language and to communicate thoughts in that language. This is a skill that is considerably broader than, and thus usually lags behind, the more basic skill of being able to understand what one hears in a language. It is the latter skill that is primarily at issue here.
48Neither Mr. Brito Rosales nor Mr. Zamora Horta chose to present any of their own evidence in support of this aspect of their applications. The only evidence I have as regards their understanding of the matters they were informed of by police during the course of their arrest is from the arresting officers themselves and from the officers conducting the booking process when the accused were brought back to the station in Oakville.
49In the case of Mr. Brito Rosales, Officer Ribaric had concerns from the start as to whether he was being understood when proceeding through the arrest formalities. Mr. Brito Rosales spoke with a heavy French accent, advised him “no speak English” and did not provide him with any meaningful response to any other questions asked. If the arresting officer was unable to say whether he was being understood by the accused, this court can hardly make a different finding absent evidence to the contrary.
50The evidence in respect of Mr. Zamora Horta is somewhat less clear but ultimately leads me to the same conclusion. Mr. Zamora Horta was at least somewhat responsive to questions posed to him in English. However, the two officers who assisted in his arrest (Officer Bingham, Officer Nicholls) both found that he spoke “broken” English and were unable to conclude that he understood the matters they informed him of.
51I thus find that Mr. Brito Rosales and Mr. Zamora Horta did not understand the reason for their arrest when initially advised of that fact in English at the scene of their arrest. For these two individuals, I am satisfied that “special circumstances” were made out requiring police to take steps to ensure that the accused understood the constitutionally-mandated information being conveyed to him.
52I reach the opposite conclusion in the case of Mr. Mejia Garcia and Mr. Mejia Olmos. Both of these applicants testified and both asserted that they understood only bits and pieces of what they were informed of, having a very limited command of English.
53In the case of both of these, I found their claims of not having understood what they were told to be somewhat exaggerated. Both had only a vague and somewhat blurry memory of the events of the day. Mr. Mejia Garcia said at one point that he was able to “get along” in English but at another point said that he only understood about half of what he was being told. I make these observations of these witnesses without intending to disparage either. No doubt being arrested is a traumatic event for anyone and remembering who said what or separating out what each knew at the relevant time as opposed to learned later is difficult at the best of times.
54The arresting officer in the case of each of these applicants (Officer Lankshear and Officer Hollinger respectively) noted the accents of their interlocutors but were satisfied that both understood them when they were informed of the reason for their arrest and their right to counsel. They were satisfied because the accused in both cases told them so and they were both meaningfully responsive to questions asked or commands given when interacting with the arresting officers during the course of the arrest process.
55While Officer Hollinger noted something of a “language barrier” when he spoke with Mr. Mejia Olmos, the latter complied without apparent confusion with commands to lie down on the grass while being handcuffed and was able to communicate his preference not to be moved when asked if he wished to move to a shady area while waiting for the prisoner transport to arrive. When he was being booked at the 20 Division in Oakville a short while later, the booking sergeant made a notation “speaks English” on his Prisoner Custody Report.
56I find that both Mr. Mejia Garcia and Mr. Mejia Olmos understood the reason for their arrest when advised of it and so advised the arresting officer. Whatever difficulties or lack of comfort either may feel in relation to their ability to communicate in English fluently, I am satisfied that both of them in fact understood the information conveyed to them when they received it.
57At all events, all four applicants were again advised of the reason for their arrest in French by Officer Brunelle at or shortly after 11:30 am. All four speak French fluently. Any lingering concerns regarding whether the applicants understood the reason for their arrest was dispelled when Officer Brunelle undertook the task of explaining this to them. Whether he was asked to take on the role or simply volunteered of his own initiative makes no practical difference here. The fact is that he interviewed each of the six arrested persons and did so with the intent of ensuring that any language barriers to understanding their s. 10(a) Charter rights were dealt with.
58I find that the none of the applicants’ s. 10(a) Charter rights were infringed during the arrest process. This aspect of each of each of their applications must be dismissed.
(d) Did the police violate the informational rights of any of the applicants under s. 10(b) of the Charter?
59I do not propose to review the evidence of how and when police discharged their obligation to each of the applicants to advise them “without delay” of their right to counsel. Each of the four was read the standard caution and rights to counsel notice found on the cover of the notebook carried by each of the arresting officers. In some cases, the reasons for arrest were explained first with the caution and rights to counsel read after the situation at the scene was stabilized, in other cases no steps were taken to comply with s. 10 of the Charter until the situation was stabilized. While the noted times for the reading of this notice varied slightly, they were all read their rights to counsel within no more than about fifteen minutes from the time of their arrest. For the reasons discussed above in relation to s. 10(a) of the Charter, I find that this information was conveyed “without delay” in the circumstances of these arrests.
60The evidence in respect of whether the information conveyed was actually understood in fact by the four applicants is also essentially the same as the evidence reviewed above in relation to s. 10(a) of the Charter as are my conclusions.
61I find that Mr. Mejia Garcia and Mr. Mejia Olmos both understood enough English to understand their rights to counsel when informed of this right and to respond appropriately to questions asked of them in terms of whether they wished to exercise this right and to provide the name of the lawyer they wished to contact. The doctrine of special circumstances is not engaged in their case.
62By the same token, the evidence establishes that Mr. Brito Rosales likely did not understand what he was being informed of when initially read his rights to counsel by Officer Ribaric. Special circumstances requiring additional police diligence in discharging the s. 10(b) Charter informational obligation applies in his case.
63The evidence is slightly more equivocal in the case of Mr. Zamora Horta who was responsive to questions about the name of his lawyer. However, given the lack of confidence of the two officers who dealt with him as to the degree to which he understood what was explained to him in English, I cannot conclude that Mr. Zamora Horta understood his right to counsel when informed of that right in English either.
64Were the efforts shown by police in discharging their responsibility to overcome the language barriers noted in the case of these two applicants adequate?
65While not perfect, I find that the steps taken were reasonable and adequate.
66Officer Brunelle very likely did discuss rights to counsel with both applicants to make sure they understood this even if his notes were less than clear on the subject. He was quite confident that he explained the reasons for arrest for each because he knew the correct French translation of “break and enter”. He was less clear about whether he took the initiative of explaining rights to counsel to each of the applicants. He did recall explaining to them that they would need to talk to a lawyer and that arrangements to do this would be made at the station. He was not sure he had the French translation of the caution and right to counsel notice with him but was confident that if he did not have it with him, he had access to it in French. In short, he was not able categorically to affirm that he read the formal, approved language to each of the accused in French. However I am satisfied that he discussed the substance of the rights with each of them and would have recorded in his notes any particular difficulties in understanding had he encountered such difficulties.
67Whether Officer Brunelle was asked to do this or simply did so on his own initiative matters not. Each of the arresting officers was aware that he was assisting when he did it. His intervention was a reasonable step to take in discharging the additional burden imposed by the presence of special circumstances in the case of the two applicants for whom I have found special circumstances to have been made out.
68Further, arrangements were in fact made to have a bilingual officer present (Officer Chinappi) during the parading and booking process back at the station. This officer did in fact explain the rights to counsel to each of the applicants in French if the need appeared to arise as the booking sergeant worked through the normal booking process. Officer Chinappi testified that he was present for the booking of all six accused that afternoon at 20 Division before the booking sergeant. He had been asked to be present specifically to provide any needed French translation services.
69In the case of the four applicants, a Prisoner Custody Record (or “PCR”) form was filled out by the booking sergeant, Sgt. Paul. Officer Chinappi recalled the events of the afternoon generally but frankly admitted that he could not recall details specific to each of the accused beyond the matters recorded on the PCR. For each of the applicants save Mr. Zamora Horta, the PCR form confirms that each had been informed of their right to counsel and that each understood those rights. I am satisfied that the failure to check the relevant boxes on the form in the case of Mr. Zamora Horta was merely a clerical oversight and that the normal booking process, including discussing rights to counsel and the preferences of the accused was followed in his case as well. This conclusion flows from the totality of the evidence regarding the procedures followed that day and from the details recorded on the form in relation to Mr. Zamora Horta’s preference as to counsel. I am satisfied that Officer Chinappi translated the information conveyed during the booking process in French in the case of the two applicants for whom I have found that special circumstances were made out (Mr. Zamora Horta and Mr. Brita Rosales). That information included the right to counsel and verifying that the accused person understood that right. I am also satisfied that he did so in the other cases unless it was clear to him that his assistance in French was not needed.
70I find that each of the four applicants was informed of and understood their s. 10(b) rights “without delay” in the circumstances of these arrests. This aspect of each of the four applications must accordingly be dismissed.
(e) Did the police violate the implementation rights of any of the applicants under s. 10(b) of the Charter?
71While I have found that the informational components of s. 10(a) and s. 10(b) of the Charter were complied with in the case of the four applicants, the implementation of the s. 10(b) right to instruct counsel was quite different in the case of the four applicants and must be considered separately. I think it is important to preface my discussion of the implementation aspect of s. 10(b) of the Charter by recalling that the police responsibility is to facilitate the exercise of the s. 10(b) Charter right of an accused at the first reasonably available opportunity to do so and it is the Crown’s burden to show that any delay was reasonable in the circumstances. The reasonableness of delay is of course a fact-specific inquiry and it is not one undertaken in a vacuum. A factor in considering the reasonableness of any delay logically includes a consideration of any delay that has already occurred even if that earlier delay, viewed in isolation, was in and of itself reasonable. Stated differently, there may be occasions where multiple delays that appear reasonable viewed in isolation become cumulatively unreasonable because the constitutional imperative to be discharged will acquire additional precedence over other concerns and imperatives of lesser importance the longer it is deferred.
(i) Mr. Mejia Garcia
72The Prisoner Custody Record for Mr. Mejia Garcia confirms that he wished to speak to his own lawyer whose name (Charles Montpetit) and Montreal phone number were recorded on the PCR form by Officer Chinappi. It is likely that it was Officer Chinappi who looked up the phone number. The form also indicates a secondary choice of the prisoner to speak to duty counsel if counsel of choice could not be reached.
73The agreed statement of facts indicates that Mr. Mejia Garcia was removed from the central lock-up for booking at 2:02 pm and returned to the cells at 2:22 pm. What happened after this information was recorded on the PCR form remains less than clear.
74The agreed statement of fact indicates that the observation log recorded Mr. Mejia Garcia as “out to speak to a lawyer” at 2:14 pm, “on phone w/lawyer” at 2:20 pm, in both cases with the booking sergeant (Sgt. Paul) recorded as the “officer involved”.
75Officer Chinappi had little specific memory to draw upon in relation to the processing of Mr. Mejia Garcia beyond the contents of the PCR form itself, parts of which he filled out and other parts of which were filled out by the booking sergeant who was with him based on information or translations he provided. He did record that a call to indicated counsel of choice was placed at 2:15 pm and that the call was returned at 2:22 pm. He was not sure who actually placed the call. He did know where in the station the call took place and confirmed that it would have taken place in a room where the conversation could be held privately. While he could not recall whether Mr. Mejia Garcia spoke to his lawyer in person, the observation log would record that information and the agreed statement of facts stipulates that this log recorded Mr. Mejia Garcia as being on the phone with his lawyer at 2:20 pm. In passing, I do not assume that all records of time made in notes kept by various officers at the station were synchronized to the same clock and to the minute.
76I have previously commented on the rather sparse memory of the events of this day that Mr. Mejia Garcia himself has retained. When examined in chief, he recalled being asked for his lawyer’s name and number and, lacking the number, being told that police would look it up. After a few minutes, he said that he was told they had found the number and directed to the phone room where the phone rang and rang without answer. On leaving the room, he said that he was asked if he spoke to his lawyer and answered that he had not done so. He was told that his lawyer would call back but he was never called back to take such a call. His evidence evolved somewhat under cross-examination. Instead of the phone ringing without answer, he said that it was picked up by an answering machine and he left a message. However, he said that he was so nervous that he forgot to tell his counsel (via the message) where to reach him beyond stating that he was in Ontario. He agreed that he did not repeat his request for duty counsel in light of the failure to reach his lawyer nor did he raise the subject of speaking to a lawyer again that day with police.
77I find myself unable to prefer Mr. Mejia Garcia’s testimony to that of the ordinary course records of the observation log and Officer Chinappi on the PCR form. Officer Chinappi’s handwritten notation on the PCR form records TWO calls involving Mr. Mejia Garcia: one outbound to the lawyer and another one inbound only a few minutes later. The observation log confirms that Mr. Mejia Garcia was “on phone w/lawyer” at 2:20 pm. I find that Mr. Mejia Garcia did in fact phone his lawyer’s office and leave a message and that the lawyer returned the call within a very few minutes. He spoke to his lawyer on that occasion and there is no evidence that I accept that he informed police of any requirement for follow up on their part. There was no requirement for police to follow up further or to contact duty counsel on his behalf because police had no reason to believe that he had been unsuccessful in speaking to counsel of choice on that occasion. I have not found that special circumstances apply to Mr. Mejia Garcia. It is to be noted that the counsel whom he contacted was counsel of his own choosing who, it can reasonably be inferred, spoke one or more languages with which Mr. Mejia Garcia was comfortable.
78Mr. Mejia Garcia may not now remember a conversation with his former lawyer one afternoon three years ago, but I find that it occurred.
79I shall deal with the timeliness of this communication with counsel – coming as it did slightly more than three hours after his arrest – and steps possibly taken by police to seize clothing from him before that communication below.
(ii) Mr. Mejia Olmos
80The agreed statement of fact in respect of Mr. Mejia Olmos indicates that he was lodged in the CLU at the station at 12:57 pm. The PCR records a request by Mr. Mejia Olmos to speak to duty counsel at 1:45 pm and Officer Tinebra’s notes, confirmed by the observation log (as agreed in the agreed statement of facts) records a single attempt to contact duty counsel at 2:32 pm. There is no record of what happened in that regard between 2:32 pm and 7:56 pm that same evening when Mr. Mejia Olmos was taken from his cell and spoke to a lawyer named Cosimo Vecchiarelli for several minutes, being returned to his cell at 8:05 pm.
81Exhibit 4 is an affidavit of Mr. Bacchus, Director of the Legal Assistance Division of the corporation that provides duty counsel services under contract with Legal Aid Ontario 24 hours per day and seven days per week. He confirmed that a log is maintained of calls received and no log entry was made on August 2, 2019 in respect of Mr. Carlos Mejia Olmos. The corporation has no record of anyone named “Vecchiarelli” working as duty counsel.
82Mr. Mejia Olmos’ testimony regarding his English language capacities I have already found to be somewhat exaggerated but also beside the point. I have found that police were not aware of “special circumstances” that may have imposed additional diligence requirements upon them in facilitating Mr. Mejia Olmos’ right to consult counsel. Mr. Mejia Olmos appeared to understand and speak English satisfactorily. He, along with all of the other accused arrested at that time, was also given access to translation services during the booking process. He requested duty counsel. French speaking duty counsel was and is readily available if requested. While no notes or paper records specifically indicate that this was requested, in circumstances where care had been taken to have a French speaking officer present to assist through the booking process (and another French-speaking officer present to conduct the clothing seizures) it is highly likely that this would have been offered to him as a matter of routine and any interest on his part have been passed along when the request for duty counsel was made.
83I find that a call to duty counsel was in fact made on behalf of Mr. Mejia Olmos at or about 2:32 pm on August 2, 2019. This would have been normal police practice, it conformed to the expressed wishes of Mr. Mejia Olmos, it is at an appropriate point in the chronology relative to his being lodged in the CLU and then being removed from there for the booking process, and it was recorded in Officer Tinebra’s notes. The fact that Mr. Bacchus has no record of such a call from the Legal Aid duty counsel log kept does not establish the negative fact. A typographical error might have been made in making log entries, an entry may simply have been forgotten or lost, the name may have been entered with a hyphen (while the search was without) or using his other forename (Mauricio). These and other explanations for the lack of a Legal Aid Ontario record being discovered come to mind.
84Mr. Mejia Olmos’ memory – as patchy as I may have found it to be – does not confirm that he actually spoke to any lawyer at that time (2:32 pm). No log records or notes of police provide any basis to infer that he did. Had a message been left, it would be normal for such a message to have been returned reasonably promptly. Mr. Bacchus’ affidavit suggested that calls not answered live would normally be swiftly returned – within about half an hour.
85There is nothing in the Crown’s evidence to confirm that Mr. Mejia Olmos was ever put on the phone with any lawyer – even just to leave a message – before the phone call with Mr. Vecchiarelli at 7:56 pm.
86I can only infer from the paucity of detailed evidence on the subject before me that police knew or ought to have known (a) that Mr. Mejia Olmos wished to speak to duty counsel; (b) that there is no evidence of any follow up of any kind by police to ensure that Mr. Mejia Olmos was given access to counsel as soon as possible when no return call was received after a reasonable time; and (c) that he was not put on the phone with duty counsel or any counsel at all until 7:56 pm. I infer from the record that it was Officer Tinebra (or possibly another police officer) who placed the call for duty counsel and that it was she who left a message with call back details. The practice in that facility was for police to place the outbound calls and then transfer the call into a private room for the prisoner to be able to consult with counsel in privacy.
87If, as I find, no connection with duty counsel was made at 2:32 pm, the gap in the record from 2:32 pm until 7:56 pm leaves me with only one conclusion that can be advanced confidently: no call between Mr. Mejia Olmos and a lawyer took place prior to 7:56 pm. In the absence of a return call being received in a reasonable time, it seems to me that the police duty to facilitate meaningful access to counsel remained undischarged. Mr. Mejia Olmos had communicated his desire to speak to duty counsel and police failed to discharge their obligation to ensure that this occurred as soon as reasonably practicable. Until they did so, Mr. Mejia Olmos was powerless to initiate a call to duty counsel on his own. The urgency of police diligence in implementing this constitutional right is all the greater when one considers the time that had already passed given the time needed to arrange transport, to transport the prisoners to the station and then to parade and book them.
88I find that the lack of follow up to implement Mr. Mejia Olmos’ right to counsel after the failure of the first attempt made at 2:32 pm amounted to a breach of Mr. Mejia Olmos right under s. 10(b) of the Charter to instruct counsel without delay.
89I do not attribute to police any fault in relation to s. 10(b) of the Charter after the 7:56 pm call with Mr. Vecchiarelli. It remains a mystery as to how Mr. Vecchiarelli entered the picture. As mysterious as his call at that time may be, it is a mystery that Mr. Mejia Olmos who consulted him as a client alone had the power to clarify by filing an affidavit from him or calling him as a witness. It is not necessary nor appropriate to speculate on such matters. Whatever factors hindered the utility of that private consultation with that particular lawyer, Mr. Mejia Olmos alone knew of them. There is no indication that Mr. Mejia Olmos advised anyone at the time that he had difficulties in communicating with Mr. Vecchiarelli or that he was still in need of a legal aid lawyer. There is no indication that Mr. Zamora Horta who appears to have consulted the same lawyer in the same time frame had any difficulties in communicating with him. I attach little weight to Mr. Mejia Olmos’ summary dismissal of the utility of his consultation. Police are not able to listen in on such calls nor are they mind readers. There was no reason to assume a language barrier with counsel given the active participation of bilingual police officers in the booking process.. As far as police were aware, their obligations under s. 10(b) of the Charter were discharged on August 2, 2019 at 7:56 pm.
90I find that police have failed to discharge their onus of showing that they facilitated Mr. Mejia Olmos’ expressed desire to exercise his constitutional right to instruct counsel in a reasonable time following the unsuccessful first attempt made at 2:32 pm. I shall address the failure of any attributable to the prior time frame below.
(iii) Mr. Zamora Horta
91I reach the same conclusion in the case of Mr. Zamora Horta’s s. 10(b) Charter rights as I reached in the case of Mr. Mejia Olmos and for similar reasons. The Crown had a positive duty to demonstrate that steps were taken to enable Mr. Zamora Horta to instruct counsel without delay. While I have been able to get past the gaps in the PCR form as regards confirming that Mr. Zamora Horta was advised of and understood his right to counsel, particularly where the form has the name and phone number of Mr. Zamora Horta’s counsel of choice recorded, the same reasoning does not enable me to infer that any steps at all were taken by police to contact such lawyer. There is no evidence before me that police took any steps to contact Mr. Montpetit or when such steps were taken. The record does indicate that Mr. Montpetit was successfully contacted when assisting Mr. Mejia Garcia at 2:20 pm and the record indicates in an unidentified hand on the PCR that a lawyer named “Vecchiarelli” returned a call at 6:22 pm. In all likelihood that is the same lawyer (Mr. Cosimo Vecchiarelli) who contacted Mr. Mejia Olmos. While it is conceivable that someone left a message that Mr. Vecchiarelli returned at that time, there are no observation log entries to confirm when such events occurred.
92There is no evidence to suggest that the consultation that Mr. Zamora had with his counsel that evening (i.e. Mr. Vecchiarelli) was not meaningful. The duration of the breach that I find occurred extends until the consultation with Mr. Vecchiarelli that evening.
93In conclusion, I infer that police have failed to discharge their onus to demonstrate that Mr. Zamora Horta’s expressed desire to consult counsel of choice was not facilitated or followed up upon in a timely way given no indication of any contact being made until almost six hours after Mr. Zamora Horta was first logged into the CLU.
(iv) Mr. Brito Rosales
94The record in respect of the implementation of Mr. Brito Rosales’ expressed desire to instruct counsel is straightforward and uncontradicted. Officer Verrault – a French speaking officer on duty at the station – assisted Officer Chinappi in the booking process. The PCR form indicates that Mr. Brito Rosales understood his right to counsel and asked to speak to duty counsel. A call was placed to duty counsel by Det. Verrault at 2: 37 and returned by a duty counsel named Mr. Peter Ghakiri at 3:18 pm.
95There is no evidence before me as to the adequacy of that consultation. While I have found special circumstances present in Mr. Brito Rosales’ case, it appears to me that police took appropriate precautions to discharge the additional burden upon them as a result. Two French-speaking officers assisted during the booking process. The PCR from for Mr. Brito Rosales notes “Speaks French”. Duty counsel was called by one of the French speaking officers and returned the call. In the circumstances, and given the bi-lingual duty counsel services readily available, it is highly likely that the lawyer who did return the call just over a half hour later spoke French. There is no evidence of any difficulties being encountered by Mr. Brito Rosales in communicating with duty counsel. While it would be preferable were notes to have been made at the time to document the full compliance with the additional obligations on police in the presence of special circumstances, the record such as it is adequately permits the necessary inferences to be made in the absence of evidence to the contrary. Once again, the active participation of bilingual officers in the booking process does not suggest any reason to assume that counsel contacting the accused would not have been selected with language issues in mind.
96I shall consider the question of the delay if any in implementing the right of the four applicants to instruct counsel prior to the booking process below. I find no breach in the implementation rights of Mr. Brito Rosales under s. 10(b) of the Charter arising from the period after the booking process with the assistance of two bilingual officers was begun some time shortly before 2:37 pm.
(v) Delay prior to booking process
97Each of the four applicants was arrested in the very few minutes following the issuance of the take-down order at 10:56 am on August 2, 2019. The implementation of their respective rights to counsel did not begin until after each had completed the parade and booking process at the station.
98The evidence of the arresting officers establishes that each of them turned over their prisoners to special constables for transport a few minutes before noon. Prisoner Custody Records show that the prisoners were admitted into the Central Lock Up at 20 Division in Oakville a few minutes either side of 1 pm (for unexplained but also unexamined reasons, Mr. Zamora Horta was admitted to the CLU about forty minutes later). The PCR forms do not provide a start and end time for the booking and parading process for each of the applicants but the PCR forms indicate that calls to lawyers began to be placed at about 2:15 pm and continued for about half an hour (from the continuity in the forms, and despite the incomplete PCR form in respect of Mr. Zamora Horta, I also infer that his requested call to duty counsel was placed in the same time frame i.e. between 2:15 pm and 2:45 pm).
99There was thus a delay between the time of arrest and the first phone call placed to counsel on behalf of the applicants of approximately 3.5 hours (plus or minus fifteen minutes). Was that delay a reasonable one considering the Charter requirement to provide an arrested person with the right to instruct counsel “without delay”? While definitely on the far end of the spectrum of what constitutes reasonable delay, I find that there was compliance with s. 10(b) of the Charter on the facts of this case.
100The first hour of delay occurred at the scene of the arrest. While there is an emerging trend of police to attempt to facilitate access to counsel at the arrest scene where practicable, it was not practicable in this case. The take-down occurred in Mississauga (i.e. Peel Region) and involved officers from two Halton Region detachments. All of the police vehicles used were unmarked cars. None were equipped for the transport of prisoners. The location of the arrest was outdoors in the parking lot of a small mall. Within moments of the arrest, on-lookers began to congregate. Implementing the right to counsel requires a place where the accused can be given a telephone connected to duty counsel or counsel of choice and sufficient time and privacy to allow a meaningful consultation process. None of these factors were adequately present at the arrest scene.
101The decision was made to call for a prisoner transport able to pick up and transport the six prisoners to 20 Division in Oakville. It was suggested by the applicants that individual squad cars could have been summoned instead to transport the prisoners one by one to the station instead of together. That is simply speculation. There is no reason to expect that six marked squad cars properly equipped could safely be taken away from other duties – potentially including responding to emergencies – and summoned to a neighboring municipality for the purpose any sooner than the approximately 45 minutes it took for the prisoner transport wagon to arrive.
102I find that the decision to defer implementing rights to counsel until the six accused persons could be brought back to the station and given access to counsel under appropriate conditions was reasonable in the circumstances. There was no practicable means of providing confidential and safe access to counsel on the spot. The decision to arrange for transportation for all six of them in a single vehicle was sensible and reasonable in the circumstances.
103There followed time in transit, time processing the prisoners into the Central Lock Up unit at 20 Division (including performing Level II searches for each of the six). I have no evidence that the time in transit was other than reasonable. There is no evidence that there was any delay in transit that was avoidable or of any lack of diligence in transporting the prisoners to the station as soon as reasonably practicable.
104Similarly, the time taken to process the six prisoners and begin the process of facilitating access to counsel appears to have taken approximately 90 minutes. In this time frame, six prisoners were checked into the Central Lock Up, subjected to non-invasive Level II searches and brought before the booking sergeant for the booking process where language translation services were made available. That suggests about fifteen minutes per prisoner in processing time. There is no indication that this time was excessive or reflective of lack of due diligence.
105I find no delay in implementing rights to counsel arising from the actions of police in the time frame between arrest and beginning to make the required phone calls. Some extra time was certainly required by reason of the number of accused to be processed and the added complication of ensuring translation services as needed.
(vi) Conclusions re s. 10(b) Charter implementation
106I find that the right to instruct counsel of Mr. Mejia Olmos and Mr Zamora Horta under s. 10(b) of the Charter was breached by reason of the unexplained delay in placing either of them in contact with counsel of their choice or duty counsel until the evening of August 2, 2019, when both spoke to Mr. Vecchiarelli. I shall consider the remedies if any associated with such breaches below.
107All other applications in respect of s, 10(b) of the Charter must be dismissed.
(f) Were the s. 8 rights of Mr. Mejia Garcia violated by the videotaping of his cell including the toilet area thereof?
108Mr. Mejia Garcia was held in the detention facilities of the Oakville detachment of the HRPS for just over 24 hours. He was booked into the Central Lock Up of 20 Division in Oakville at 1:01 pm on August 2, 2019 and transported from the detachment to another facility just after 1 pm the next day.
109The Prisoner Custody Record in respect of Mr. Mejia Garcia was filled in primarily by Sgt. Paul. The badge numbers of officers providing input into the process is recorded on the form, including the badge number of Officer Chinappi who provided French language assistance during the booking process. Among other things, the form indicates that Mr. Mejia Garcia was informed of the presence of video monitoring in the cells and was issued and given instructions on the use of a privacy screen.
110Mr. Mejia Garcia’s memory of the booking process was spotty at best. He candidly admitted that he must have understood and answered various of the questions referenced on the form because the recorded answers (about his medications and allergies, for example) were quite accurate. He did not recall being advised of the presence of video monitoring in the cell area and did not recall being told that the folded sheet he was issued was in fact a privacy screen and did not recall being instructed in its use. His lack of recollection does not mean that these briefings did not occur. I find that it is highly likely the briefings regarding the video camera and use of the privacy screen did in fact occur and were understood by Mr. Mejia Garcia.
111Mr. Mejia Garcia was taken to a holding cell in the Central Lock Up area following his booking process and attempts to contact counsel noted earlier. The cell itself is small and spare. From the video evidence of the cell, I should estimate the cell at something in the area of six or seven feet long at most and perhaps five feet or a bit more in width. The cell has a door with a window in it. It has a built-in cot the length of one wall and a combination toilet and sink against the wall opposite the door. High on the ceiling (the walls appear to be approximately ten feet high) beside the door is a video surveillance camera.
112Only a single video clip from the cell camera occupied by Mr. Mejia Garcia survives and this clip shows less than two of the last hours Mr. Mejia Garcia spent in the cell. In that clip he can be seen lying on the cot and sleeping, waking up, staring out the window of the door, picking up his food and eating it and at one point using the toilet. That brief segment, near the end of the video clip, includes a still briefer segment of a few seconds where Mr. Mejia Garcia’s genitals are briefly visible.
113Was Mr. Mejia Garcia aware of the existence of the camera? He testified that he had no memory of noticing the video camera in his cell. While it may well be that Mr. Mejia Garcia has no memory of that particular detail of his cell three years after the fact, I have no doubt at all that the video camera was noticed by him during the course of the 24 hours he spent in that cell. There was literally nothing else but a bare wall and a window to the corridor outside to look at. He spent hours upon hours sitting on the cot or lying down on it. He cannot have failed to notice it.
114I find that Mr. Mejia Garcia was advised of the presence of video monitoring in his cell, that he was issued a long, folded sheet as a privacy screen and was given instructions in how to use it to preserve his privacy. Mr. Mejia Garcia used the sheet as something of a pillow when he was lying down instead. Whatever his current memory of the matter, I also find that he cannot fail to have seen the camera in the cell at some point in the 24 hours preceding the video clip discussed in this application. There was literally nothing else to look at in that tiny room, particularly when lying on the cot. It is simply inconceivable that he should not have seen it and recognized it for what it was. The camera was not disguised in any way.
115By the next day, Mr. Mejia Garcia had either simply forgotten about the privacy screen or simply didn’t care enough to bother. When testifying, he confessed to a bit of embarrassment about the existence of a video showing him using the toilet and exposing his genitals to view. However, he also said that he didn’t want to “make a drama” out of it. Generally, he confirmed my impression from his testimony that this question was not a high concern for him at the time either and that he may have simply forgotten about it when he used the toilet shortly before leaving the cell area.
116Mr. Gill pointed me towards a number of cases where other courts have expressed concern about the presence of video surveillance in cells and violations of privacy that occurred in those cases. I do not propose to review those cases in detail here. There are numerous distinguishing features not the least of which is my finding that Mr. Mejia Garcia was advised of the presence of video monitoring and could not have failed to notice its presence in his cell at some point during the 24 hours he spent in that cell. Mr. Mejia Garcia was also issued a sheet which he was told could be used to secure his privacy if he wished. Whether because he simply forgot about the video monitoring issue or did not really care, the end result is that he did not use it when using the toilet in the last hour of his detention there.
117There is no evidence that the video clip in question was ever viewed by as much as a single human being before counsel made inquiries about its existence and it was included in the Crown’s disclosure in this case. That request and disclosure was first made after present counsel was retained a short while ago and after other clips had been deleted in the ordinary course by the police division in question under video retention policies.
118In these circumstances, I find no breach of Mr. Mejia Garcia’s s. 8 Charter rights arising from the presence of a video surveillance camera in his cell while detained at 20 Division on August 2-3, 2019. This aspect of his application must accordingly be dismissed.
(g) What remedies if any flow from any violations of the Charter rights of the accused applicants?
119I have found two Charter breaches to have been made out in the four applications before me arising from the failure to facilitate access to counsel without delay following the arrest of Mr. Mejia Olmos and Mr. Zamora Horta. Both applicants sought the exclusion of the evidence of the search of their person and the seizure of their clothes from evidence under s. 24(2) of the Charter.
120The evidence that the applicants seek to have excluded from evidence at is the clothing seized from the accused after they were returned to the Central Lock Up following the booking process but before they were given an opportunity to consult with counsel.
121In conducting this review, I have considered the recent decision of the Supreme Court of Canada in R. v. LaFrance, 2022 SCC 32 which considered the specific case of the exclusion of evidence in a s. 10(b) Charter context. In LaFrance, the Charter-infringing conduct was the refusal to permit a further consultation with counsel before conducting an interview. The Court concluded in LaFrance that even if the conduct was not “reckless” it could not be characterized as being in good faith either and evidence obtained as a result of that wrongful conduct could not in good faith be relied upon.
122In the present case, the failure to explain why it took so long to arrange something as basic as a phone call with duty counsel is as serious as it is unexplained. Something appears to have fallen significantly between the cracks. That being said, I cannot find anything resembling a reckless or willful disregard of the constitutional rights of these two applicants was present here. The process was adequately followed in the case of four of the six accused. The police did react to the potential of language difficulties adequately, marshaling two French-speaking officers to help in the booking process. I do not condone the lapses in this case and, by documenting them here, an opportunity will exist for a future court to consider whether corrective measures are necessary should evidence of a persistence of these lapses emerge. At this point, the evidence suggests a relatively isolated lapse rather than a systemic one and there can be no reasonable suggestion of an ulterior motive being at play.
123The applicants point to what they allege is the failure of police to “hold off” pending a proper discharge of their s.10(b) obligations, suggesting that the seizure of their clothing that occurred prior to counsel being consulted should be considered as fruit of the poisoned tree. I find that analogy to be a stretch here. Officer Verreault was assigned to seize the clothing of the accused. This was done in a private room and he explained in French what was happening to those that wished to receive communications in French. Each accused person – including the two applicants in question – was issued a standard, white zip-up jump suit and their external clothing was seized as evidence.
124What was seized was the clothing of the arrested applicants at the time they were issued a standard-issue prisoners’ jumpsuit. The clothing was visible to police at all times from the moment of arrest forward and while the accused were visible loading the cars at Tasha Drive. The clothing of each was described in summary fashion on the PCR form. It would routinely be taken from the accused in the ordinary course as part of the process of intake of a new prisoner. It seems to me that the connection of this evidence to the Charter-infringing conduct is largely a temporal coincidence. The clothing was not going anywhere and, whether “seized” or simply taken and stored away in the usual course for later seizure, it was going to be removed in the ordinary course regardless. This was not a case of police discovering evidence that they might not have discovered or come into possession of but for the breach. The appearance of the clothing was plainly visible and known. Its potential relevance (by matching to video clips and photographs of the perpetrators of the various incidents) was known and obvious. Neither the police knowledge of the existence of this evidence or of its potential relevance was in any way impacted by the failings in relation to facilitating access to counsel.
125The seriousness of the Charter infringing conduct does not, in my view, tilt the balance towards exclusion of any evidence because the Charter-infringing conduct had effectively no causal connection to the discovery of any evidence.
126The impact of the breach upon the Charter-protected rights of the applicants, on the other hand, points towards exclusion. I need not repeat here passages from the cases cited to me regarding the central constitutional importance of the safeguarding the effective right to counsel as a life-line for accused persons who are otherwise alone, without support and at the mercy of the state.
127While this factor points towards exclusion, it does not do so with the strength that was present in LaFrance, for example. In LaFrance, the accused was induced to waive his right against self-incrimination in circumstances directly traceable to the refusal to permit him access to counsel to advise on that very subject. In the present case, neither applicant said or did anything relevant to the case during the delay in giving them access to counsel apart from removing their clothing and putting on a prison jumpsuit which was an ordinary, standard procedure at all events.
128I would conclude that the second criterion favours exclusion but does not do so very strongly.
129Society’s interest in the adjudication of the case on its merits tilts in favour of inclusion of the impugned evidence. To the extent the evidence helps to establish the identification of the applicants as the perpetrator of any or all of the crimes charged, the exclusion of evidence may result in the responsibility of the applicants for those crimes not being decided on their merits. There is however a second aspect of society’s interest in adjudication of the case on its merits that the LaFrance court underscored and that is the reputation of the criminal justice system viewed more broadly. Would the admission of this evidence tend to bring the administration of justice into disrepute having regard to the need to have a fair adjudication on the merits “grounded in legality and respect for longstanding constitutional mores”? In my view, the rather tenuous connection between the evidence sought to be excluded and the breaches identified does not suggest that adjudicating this case on evidence that includes the seized clothing will do any harm to the reputation for fairness of the justice system. This factor also strongly favours inclusion of the evidence and not its exclusion.
130On balance and considering all three factors carefully, I find that the exclusion of this evidence is not called for. I would decline to order it here.
Disposition
131Accordingly, I rule as follows in relation to each of the applications:
a. Application of Mr. Zamora Horta: this application is allowed in part as regards delay in the implementation of his s. 10(b) Charter rights but I have found that this is not a case for the exclusion of any evidence under s. 24(2) of the Charter.
b. Application of Mr. Mejia Garcia: this application is dismissed.
c. Application of Mr. Mejia Olmos: this application is allowed in part as regards delay in the implementation of his s. 10(b) Charter rights but I have found that this is not a case for the exclusion of any evidence under s. 24(2) of the Charter
d. Application of Mr. Brita Rosales: this application is dismissed.
S.F. Dunphy J.
Date: November 3, 2022
Footnotes
- The vehicles and the dumpster were both searched after the six individuals were arrested and police did not then have confirmation of the presence of stolen goods in the vehicles. Charges of possession of stolen goods were subsequently added (and the break and enter charge was not proceeded with as against Mr. Rosales).
- Storrey considered the predecessor to the current s. 495(1) of the Criminal Code which formerly required the presence of “reasonable and probable grounds”. The current text requires only “reasonable” grounds.