His Majesty the King v. Daniel Dubajic

COURT FILE NO.: CR-21-10000460

DATE: 2022-12-06

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

DANIEL DUBAJIC, Applicant

COUNSEL:

Erin Pancer and Jennifer Lynch, for the Crown

Mitch Worsoff and James Foy, for the Applicant

HEARD: October 3, 4, 6, 2022

REASONS FOR DECISION

J. R. PRESSER J.

I. INTRODUCTION AND OVERVIEW

[1] The Applicant, Daniel Dubajic, brought an application for exclusion of evidence under ss. 7, 8, 10(b) and 24(2) of the Charter. I heard this pre-trial application between October 3 and 6, 2022. On November 3, 2022, I dismissed it orally with reasons to follow. These are those reasons.

[2] On November 17, 2020 at 3:24 pm, police executed a Controlled Drugs and Substances Act search warrant at 70 Cloverhill Road, Apartment #5, in Toronto to search for drugs and drug trade paraphernalia. The information to obtain the search warrant (“ITO”) relied on information from two confidential informants (“CI”s) and the results of police investigation.

[3] During the search, police found and seized:

• 106 kilograms of cocaine

• five kilograms of fentanyl

• 61 kilograms of crystal methamphetamine

• nine kilograms of MDMA

• 11 pounds of marijuana

• one kilogram of hashish

• 57 handguns, six of which were loaded

• eight long guns

• seven extended magazines

• Over 15,000 rounds of ammunition

[4] Mr. Dubajic was at the address at the time of the search. Police immediately detained him. At some point between 3:24 and 3:31 p.m. on the date of the search, he was arrested and charged with one count of possession of cocaine for the purpose of trafficking and one count of possession of a firearm. He was immediately advised of his right to counsel. He indicated a desire to speak with duty counsel. He was afforded an opportunity to speak with duty counsel, but not until after he was transported to the police station. He spoke to duty counsel at 5:05 p.m., approximately one hour and 40 minutes after he was first detained.

[5] On November 24, 2020 at 5:20 a.m. a police officer attended at the detention centre where Mr. Dubajic was being detained and advised him that he was being charged with a further 76 offences. All 78 charges were read to him. He was read his right to counsel at that time and had an opportunity to speak with counsel shortly thereafter.

[6] Mr. Dubajic now faces 73 counts in an indictment as follows:

• 57 counts of possession of a prohibited firearm, contrary to s. 95(1) of the Criminal Code

• seven counts of unauthorized possession of a non-restricted firearm, contrary to s. 91(1) of the Criminal Code

• two counts of possession of a firearm for the purpose of transferring, contrary to s. 100(1) of the Criminal Code

• two counts of possession of prohibited devices for the purpose of transferring, contrary to s. 100(1) of the Criminal Code

• one count of unauthorized possession of prohibited devices, contrary to s. 91(2) of the Criminal Code

• four counts of possession of Schedule I substances for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act

[7] Mr. Dubajic sought exclusion of the guns, ammunition, and drugs that were seized from his home on execution of the search warrant. He argued that the ITO was inadequate. It did not, according to Mr. Dubajic, contain enough information to ground a reasonable belief that evidence of possession of cocaine for the purpose of trafficking would be found at his residence. For this reason, he argued, the issuing justice could not have issued the warrant. He submitted that admission of the evidence would bring the administration of justice into disrepute. Accordingly, he asked me to exclude the evidence.

[8] Mr. Dubajic also brought an application under ss. 7, 10(b), and 24(2) of the Charter for exclusion of statements he made to the police as well as the guns, ammunition, and drugs that were seized from his home. He took the position that police violated his right to counsel in four ways: first, by failing to give him reasonable opportunity to consult counsel without delay; second and third, by failing to hold off questioning him until he had a reasonable opportunity to consult counsel on two separate occasions; and fourth, by failing to advise him in a timely manner of additional charges and give him his right to counsel in respect of those charges. The Applicant claimed that his s. 7 Charter right to be free from self-incrimination was breached when police elicited statements from him in violation of his right to counsel.

[9] The Crown opposed these Charter applications, taking the position that the ITO was sufficient to ground a reasonable belief that evidence of possession of cocaine for the purpose of trafficking would be found at Mr. Dubajic’s residence. The Crown acknowledged that the ITO, as redacted to protect the CIs’ identities, did not provide enough information to allow me to conclude that the warrant could have issued. Consequently, the Crown brought a cross-application asking me to engage in a step six procedure, as outlined in R. v. Garofoli, [1990] 2 S.C.R. 1421. The step six procedure enables me to participate in creating a judicial summary of the redactions to be provided to the defence, and then to review the unredacted ITO.

[10] The Applicant initially opposed the Crown’s step six cross-application. He took the position that the draft judicial summary prepared by the Crown did not contain enough information to enable him to understand the nature of the redactions, and therefore to meaningfully challenge the warrant. However, at the beginning of the hearing of this application, I suggested some amendments to add further information to the draft judicial summary. Some of these additions were accepted by the Crown. A final version of the judicial summary, containing the additions, was provided to the Applicant. Upon review of the final version of the judicial summary, the Applicant agreed that he had enough information about the nature of the redactions. He consented to the Crown’s step six cross-application to allow me to review the unredacted ITO.

[11] The Crown submitted that the unredacted ITO made clear that there was sufficient evidence upon which the warrant could have issued. In particular, the Crown argued that the issuing justice could have found that there were reasonable grounds to believe that relevant evidence would be found at 70 Cloverhill Road, Apartment #5.

[12] The Crown submitted that if I found a breach of s.8, the evidence should still be admitted because it is reliable and essential to the prosecution. There is, according to the Crown, an overwhelming public interest in having this trial proceed on the merits in relation to possession of such a large stash of extremely dangerous illegal guns and drugs. For these reasons, the Crown submitted that exclusion of the evidence would bring the administration of justice into disrepute.

[13] The Crown further submitted that there was no breach of Mr. Dubajic’s right to counsel or his right to be free of self-incrimination because: first, police ensured that Mr. Dubajic spoke to duty counsel as soon as he could do so in private; second and third, questions asked of Mr Dubajic before he had an opportunity to speak with counsel were not asked for investigatory purposes but for officer safety and for administrative reasons respectively and, in any event, the Crown will not rely on Mr. Dubajic’s answers to these questions at his trial; and fourth, police informed Mr. Dubajic of his additional charges as soon as they knew what the new charges were and were able to do so, and ensured that he had access to counsel immediately once they had done so. If I found that Mr. Dubajic’s rights were violated under s. 10(b) of the Charter, the Crown submitted that I should not exclude the guns, ammunition, and drugs as a result because the exclusion of this evidence would bring the administration of justice into disrepute.

[14] What follows are my reasons for dismissing the Applicant’s ss. 7, 8, 10(b) and 24(2) applications.

II. THE SECTION 8 APPLICATION

A. Overview of Applicable Legal Principles

[15] In R. v. Wilson, 2020 ONSC 4600, 465 C.R.R. (2d) 366, at paras. 16-17, Schreck J. provided the following helpful summary of the applicable law:

The principles that govern a search warrant review are well established. The warrant is presumptively valid. The applicant bears the burden of demonstrating on a balance of probabilities that the warrant was not validly issued, that is, that the minimum standard required for authorizing the search was not established in the ITO. That standard is that there are reasonable and probable grounds to believe that an offence has been committed and that there is evidence of that offence to be found at the place to be searched. “Reasonable and probable grounds” means a “credibly based probability” and does not mean “proof beyond a reasonable doubt” or even the establishment of a prima facie case.

In reviewing the ITO for sufficiency, I must take a “common-sense and holistic approach”. I must keep in mind that I am not to substitute my view for that of the issuing justice… If I conclude based on what remains that the issuing justice could have issued the warrant, then I am not to interfere even if I would have come to a different conclusion had I been the authorizing judge. [Citations omitted.]

[16] A judge reviewing a search warrant “must take into account that authorizing justices may draw reasonable inferences from the evidence in the ITO”: R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 16. This can include common sense inferences: R. v. Baskaran, 2020 ONCA 25, 149 O.R. (3d) 409, at paras. 13-15, leave to appeal refused, [2020] S.C.C.A. No. 71.

[17] Where the police officer drafting an ITO relies on information from a CI, the officer must provide enough of an evidentiary basis to allow the justice to conclude that the CI information is capable of supporting a reasonable belief. As Kelly J. held in R. v. Farrugia, 2012 ONCJ 830, at paras. 38-39:

It is not enough for the officer to express his or her opinion that the information is reliable; the justice must be able to make his or her own assessment of reliability based on evidence in the ITO.

In assessing reliability, the court considers the totality of the circumstances. This encompasses factors relevant to both the accuracy of the CI’s information and the trustworthiness of the CI as a source of information.

This inquiry focusses on the three criteria from R. v. Debot, [1989] 2 S.C.R. 1140, at para. 53, or the ‘three Cs’— namely: whether the information provided by the CI is compelling; whether the source of the information is credible; and whether the police adequately corroborated the information through independent investigation.

[18] In Debot, at para. 53, the Supreme Court held that the ‘three Cs’ are not to be measured in isolation. They are not “watertight inquiries”: R. v. Brown, 2021 ONCA 119, 403 C.C.C. (3d) 457, at para. 32. Rather, they are to be assessed with reference to each other, “on a totality of circumstances”: R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d), at para. 67. Weakness in one ‘C’ can be compensated for by strength in the others: Crevier, at para. 67. In addition, that police are not able to confirm or corroborate the precise criminal act under investigation is not lack of corroboration for the purpose of testing the sufficiency of the information in the ITO: R. v. Caissey (2007), 2007 ABCA 380, 422 A.R. 208 (C.A.), at para. 23, aff’d 2008 SCC 65, [2008] 3 S.C.R. 451.

B. Application to this Case

a) Facts

[19] In this case, the Applicant focused his s. 8 challenge on whether there was enough information in the ITO. He submitted that there was insufficient information to enable the issuing judge to conclude that there were reasonable grounds to believe that evidence of possession of cocaine for the purpose of trafficking would be found at the address to be searched.

[20] The ITO reveals that within six months before the warrant issued, police received information from a confidential informant, CI #1, about a male and his criminal activities in relation to controlled substances. CI #1 used a name or nickname that is the same name or nickname provided by a second confidential informant, CI#2, for the Applicant. Within six months before the warrant issued, CI #2 also provided information about this male’s criminal activities in relation to controlled substances. In some details about the male and his drug dealing activities, CI #1 and CI #2 corroborated each other.

[21] CI #1 also told police that a male by the name of “Jon” was in possession of cocaine. Police conducted surveillance. They saw someone they believed to be a known drug dealer, Jonathan Bortkiewicz, leaving a bank and getting into a white Volkswagen Jetta with licence plate #CLWD739. Bortkiewicz exited the Jetta clenching a bag to his chest approximately one minute later.

[22] Police checked the relevant databases and learned that Mr. Bortkiewicz has a criminal record for, among other things, trafficking a Schedule I substance. They also learned that he had outstanding criminal charges of trafficking and possession of proceeds of crime.

[23] Police conducted Ministry of Transportation of Ontario (“MTO”) database searches for the licence plate they had seen on the white Jetta. They found that it was registered to the Applicant, with a registered address of 70 Cloverhill Road, Apartment #5, in Toronto. They obtained a drivers’ licence photo of the Applicant. CI #2 identified the person in the Applicant’s driver’s licence photo by the name or nickname of the male he had told police was in possession of cocaine. This was the same name or nickname for a male in possession of cocaine disclosed by CI #1.

[24] CI #2 disclosed recent, firsthand, specific information about the Applicant’s drug dealing activities, as well as information in relation to the location of cocaine.

[25] Officers attended at 70 Cloverhill Road and observed a silver Dodge Caravan, licence plate #CHED670, parked in the building’s parking lot. One officer entered the apartment building and walked up the stairs to the second floor and located unit #5, which was the first unit to the right.

[26] A subsequent MTO data base check of the licence plate of the silver Dodge Caravan revealed that this vehicle was registered to the Applicant, with the same home address of 70 Cloverhill Road, Apartment #5.

[27] On November 14, 2020, police executed a search warrant at Mr. Bortkiewicz’s residence. They found and seized a quantity of powder cocaine, crack cocaine, Percocet and oxycodone tablets, and a quantity of Canadian currency. The cocaine was in a solid chunk. Mr. Bortkiewicz was arrested and charged with possession of a Schedule I substance for the purpose of trafficking as well as possession of proceeds of crime under $5000.

[28] The search warrant for the Applicant’s residence was issued on November 16, 2020. It was executed on November 17, 2020, with the results described above. that some of the information I have considered remains protected by informer privilege. That privileged information remains redacted and cannot be explicitly referred to in these reasons.

[29] Analysis

[30] In this case, the information from the two CIs is essential to the sufficiency of the ITO and thereby to the validity of the search warrant. Consequently, I will assess the ITO within the Debot ‘3 Cs’ framework. In doing so, I note that my ability to explain my findings is limited by the fact

b) Analysis

i) Was the information provided by the CIs compelling?

[31] The kinds of information an issuing justice would need to have in order to assess whether CI information is compelling, borrowed from Crevier[^1], at para. 84 and Farrugia, at para. 105, include:

• Whether the information is firsthand, second-hand, or hearsay;

• Whether the information is commonplace and widely known, or whether by its very nature it suggests that the source has more specific knowledge of criminal activity;

• Whether the information is specific and precise, or whether it is conclusory in nature;

• Whether the information includes details of a type that suggests it is based on more than rumour, coincidence, error, or falsehood;

• Whether the CI has had the opportunity to acquire information frequently and over a period of time; and

• Whether the information is recent and current.

[32] The Applicant submitted that the information provided by the CIs in this case is not compelling. He noted that it is not clear whether most of the information provided by CI #1 is firsthand, secondhand, or hearsay. The Applicant argued that while much of the information provided by CI #2 is firsthand information, it is not clear from the redacted ITO and the judicial summary whether the disclosures he made (at paragraphs 19(h) and (k)) in relation to the location of cocaine are firsthand, secondhand, or hearsay. In essence, the position of the Applicant was that the information provided by CI #1, and to a lesser but still real extent by CI #2, could be based on rumour or street gossip.

[33] The Applicant further argued that the CI information was not compelling because it was generic and conclusory. He submitted that the redacted ITO and judicial summary did not reveal any real compelling information that could support a belief that drugs would be found at his residence. The Applicant relied on R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742 where the Court of Appeal held that a CI’s information that drugs were stored in Mr. Rocha’s residence was not compelling because it was conclusory. The source of the CI’s information was not known, so it amounted to nothing more than a bald assertion that Mr. Rocha was storing drugs at his home: Rocha, at para. 26.

[34] In this case, the Applicant asserted that CI information about the location of cocaine is similarly conclusory. He argued that here, like in Rocha, any conclusion that there was a connection between drugs and his address depended on the assumption that a person engaged in drug dealing would necessarily store drugs at their home. But that there was no evidence to support that assumption. Here, according to the Applicant, it is not clear that CI #2 made connections between drug dealing activities and 70 Cloverhill Road, Apartment #5, or that any information CI#2 gave about the location of cocaine was more than bald assertion. He argued that the ITO relied on the following impermissible assumptions by the police, not grounded in compelling information:

• That because they saw a white Jetta registered to the Applicant involved in an apparent drug deal with Bortkiewicz, that the Applicant must have been trafficking drugs. However, police did not see the Applicant driving the Jetta at that time, nor did they see him with Bortkiewicz;

• That because the Jetta that was involved in an apparent drug deal with Bortkiewicz was registered to 70 Cloverhill Road, Apartment #5, the Applicant, who was registered with MTO as living at that address, must have been trafficking drugs; and/or that drugs must have been stored at that address. But police did not see the white Jetta at that address. Indeed, when police did surveillance at 70 Cloverhill Road, they saw a different car there, a silver Dodge Caravan, registered to the Applicant; and

• That if the Applicant traffics drugs, he must be storing drugs at his home.

[35] The Crown submitted that the information provided by the CIs in this case is compelling. Crown counsel noted that CI #1 provided information on three occasions. On the first and third occasions, it is not clear whether the information is firsthand, secondhand, or hearsay. But in relation to the information provided on the first occasion, the information at paragraph 8(b) of the ITO was corroborated by CI #2 and by police. On the second occasion, the information provided by CI #1 is firsthand in relation to Jon’s criminal activities. The Crown noted that CI #2 provided information on one occasion in relation to the Applicant. Most of the information provided by CI #2 in relation to the Applicant’s drug dealing activities was firsthand, but it is not clear whether some of the information was firsthand, secondhand, or hearsay.

[36] The Crown acknowledged that the nature of the relationship between CI #1 and either Jon or the Applicant, or how CI #1 first met either of them, was not disclosed. However, the nature of the relationship between CI #2 and the Applicant was disclosed to the issuing justice, as was how they first came into contact.

[37] The Crown noted that the CI information was recent and current. It was shared with police within the six months preceding the swearing of the ITO. Crown counsel submitted that the information was specific and detailed in relation to the Applicant, his drug dealing activities, and the location of cocaine. So detailed and specific, in the Crown’s argument, as to negate the possibility that it was based in rumour, error or coincidence.

[38] I have very carefully reviewed the unredacted ITO and considered the submissions of counsel and the governing caselaw, including Rocha. I have painstakingly taken up the invitation of counsel for the Applicant to “interrogate” for myself whether the CI information was no more than conclusory bald assertions, relying on impermissible assumptions. I am satisfied that the CI information was not merely generic or conclusory. It was recent, current, specific, and detailed. It was therefore unlikely to have been based in rumour, gossip, coincidence, or error. The issuing justice could have found that the information from the CIs, taken as a whole and in relation to all essential prerequisites to the issuance of a search warrant, was compelling. Important information I relied on in reaching this conclusion remains subject to informer privilege, so I cannot engage in a more in-depth explanation of my analysis. Suffice it to say that I was alive to the concerns raised by the Applicant and am satisfied that the issuing justice could have found the CIs’ information compelling.

ii) Were the CIs credible?

[39] The kinds of information an issuing justice would need in order to assess to whether a CI is credible, borrowed from Crevier, at para. 84 and Farrugia, at para. 107, include:

• Whether the CI has given information to police in the past that proved to be reliable and whether there have been any instances where the CI’s information was proven to be unreliable;

• Whether the CI has a criminal record and, if so, whether there are convictions for offences of dishonesty or against the administration of justice, like perjury, fraud, attempt to obstruct justice and, in this case, whether the CI has convictions for drug-related offences; and

• Whether the CI is receiving any benefit in exchange for the information and whether the CI has a motive to fabricate.

[40] The Applicant’s position was that there was not enough information in the ITO to enable the issuing justice to conclude that the CIs were credible. He recalled that it is not clear whether much of the CIs’ information was firsthand, secondhand, or hearsay. As a result, the Applicant argued, information relevant to the CIs’ own credibility is not of much assistance in considering whether their information was credible or true. Credible CIs might faithfully and honestly report secondhand or hearsay information that is untrue. There is no way to determine whether unknown sources who provided information to the CIs were credible, reliable, or were providing information that was true.

[41] In addition, the Applicant noted that there was an important omission in the ITO in relation to the credibility of CI #2. The ITO sets out that both CIs are carded sources; that both have provided information several times in the past; and the results of past information provided by CI #1 (which is that CI #1’s past information has been corroborated through police investigation, proven to be truthful and accurate, and has led to arrest and seizure). However, the ITO does not give any information about the results of information provided by CI #2 in the past. The Applicant submitted that this is a significant omission; that it would have been important for the issuing justice to know if past information from CI #2 was found to be reliable or unreliable.

[42] The Crown’s position was that there was enough information before the issuing justice to make a determination that the CIs were at least reasonably credible. Criminal records, if any, and outstanding criminal charges, if any, for both CIs were included in the ITO. The motivation of each CI in providing information was included in the ITO. Both CIs were carded sources, which spoke to their reliability: Brown, at paras. 50-51. Although it is not clear whether much of the information from CI #1 was firsthand, secondhand, or hearsay, CI #1’s information was corroborated by CI #2, most of whose information was firsthand. In addition, although the affiant omitted information about results of information provided by CI #2 in the past, here information from CI #2 was corroborated by CI #1 whose past track record for reliability was included in the ITO.

[43] In my view, the issuing justice did have enough information to conclude that the CIs were at least reasonably credible. The justice had the following information that was relevant to the CIs’ credibility in the ITO:

• The full criminal records of both CIs, if any. This included information about any convictions for offences of dishonesty, offences against the administration of justice, or for drug-related offences, if any;

• Outstanding charges of both CIs, if any. This included information about any outstanding charges in relation to offences of dishonesty, offences against the administration of justice, or drug-related offences, if any;

• That both CIs were carded sources with police services and that each CI has been assigned a confidential human source (“CHS”) number;

• That both CIs have provided information several times in the past;

• That information provided by CI #1 in the past has been corroborated through police investigation and proven to be truthful and accurate;

• That information provided by CI #1 in the past has led to arrest and seizure, and what was seized in the past as a result of information from CI #1;

• Information as to each CI’s motivation for providing information;

• CI #1 and CI #2 corroborated each other’s information in relation to the name or nickname of a male who possessed cocaine and who CI #2 identified as the Applicant;

• CI #1 and CI #2 corroborated each other’s information in relation to some details about the male and his drug dealing activities. Some of this information was detailed, precise, and specific; and

• Police corroborated some information from the CIs in relation to the male and his drug dealing activities through independent investigation.

[44] The following information relevant to the CIs’ credibility was not included in the ITO:

• Information about the results of past information provided by CI #2 and whether it was reliable or unreliable; and

• Information about whether second-hand or hearsay sources of the CIs’ information were credible or reliable.

[45] Information about the results of past information provided by CI #2 and whether it proved to be reliable or unreliable should have been included in the ITO: Crevier, at para. 68. If CI #2’s information proved to be unreliable in the past, this should have been disclosed in the ITO as part of the affiant’s duty to make full, frank, and fair disclosure: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 58; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 46.

[46] That having been said, CI #2 (like CI #1) was a registered police informant. Both CIs were carded sources, and each had a CHS number. This supported their reliability: Brown, at paras. 50-51.

[47] In Brown, the Court of Appeal upheld a trial judge’s finding that the CI was credible. The Court did so even though the ITO did not disclose the CI’s full criminal record, outstanding criminal charges, or motivation for providing information: Brown, at paras. 45, 47. Notwithstanding these significant omissions, the Court held that disclosure of the CI’s registration as a carded police informant alongside disclosure that the CI had provided reliable information in the past was adequate to ground a finding of credibility.

[48] I take Brown to stand for the proposition that an ITO need not necessarily contain every single possible shred of information relevant to a CI’s credibility for the issuing justice to be able to assess credibility. As long as it contains enough information to enable the issuing justice to meaningfully assess credibility. Consequently, as a judge reviewing the sufficiency of the search warrant, I need only determine whether there was enough information, including in relation to CI credibility, on which the warrant could have issued.

[49] In my view, there was enough information relevant to the CIs’ credibility in this ITO to allow the issuing justice to conclude that they were reasonably credible. Their criminal antecedents and current involvement with the criminal justice system, if any, their motivation for providing information, their history of having provided information in the past, their status as carded sources, and the reliability of CI #1’s past information, were all disclosed in the ITO. Cumulatively, this was a significant amount of information that would allow the issuing justice to meaningfully assess the CIs’ credibility. Based on this information, the issuing justice could have concluded that they were reasonably credible.

[50] The affiant should have included information about whether past information from CI #2 had proven reliable or unreliable. However, it would have been obvious to the issuing justice that this information was not disclosed. At paragraph 2 of Appendix “X” to the ITO, the affiant indicates that CI #1 has provided information several times in the past. Then, at paragraphs 3-5 of Appendix “X,” the ITO discloses how past information provided by CI #1 was proven reliable. By contrast, after paragraph 14 of Appendix “X” where the affiant indicates that CI #2 has provided information several times in the past, there is no information provided about whether that information has proven reliable or not.

[51] The omission of information about CI #2’s past reliability would have been obvious to the issuing justice, following as it did the inclusion of information about CI #1’s past reliability. In these circumstances, the issuing justice would not have been misled into assuming that CI #2 had proven reliable in the past, beyond what could be inferred from his status as a carded informant. Given all the other information about CI #2’s credibility in the ITO, including that they are a carded police informant, the issuing justice could have concluded that this CI was reasonably credible. Even though more detailed information about CI #2’s past reliability or unreliability was omitted.

[52] The Applicant asked me to find that the issuing justice could not have been properly satisfied as to the CIs’ credibility because it is unknown whether much of the CI information was firsthand, secondhand, or hearsay. I appreciate that credible witnesses may be telling the truth in reporting secondhand or hearsay information, while the information they report is untrue. This is the basis for the evidentiary rule that hearsay is presumptively inadmissible for the truth of its contents. However, I conclude that, assessed in its totality, the information in the ITO would nevertheless permit the issuing justice to meaningfully assess the CIs’ credibility.

[53] Much of the information provided by CI #2 was firsthand. CI #1 and CI #2 corroborated each others’ information in relation to the name or nickname they used for a male they said was in possession of cocaine, and who CI #2 identified as the Applicant. The two CIs also corroborated each others’ information in relation to some details of that male’s drug dealing activities. As will be discussed further below, police also corroborated some information provided by the CIs. Viewed cumulatively, this corroboration supports that the CIs’ information was credible and reliable.

[54] I conclude, based on all the information in the ITO assessed in the totality of the circumstances, that it was open to the justice to find that the CIs were reasonable credible.

iii) Was the information provided by the CIs corroborated?

[55] The kinds of information an issuing justice would need in order to assess to whether CI information was adequately corroborated, borrowed from Crevier, at para. 84, and Farrugia, at para. 110, include:

• Whether police verified generic information of which almost anyone could have been aware or whether they verified information that is distinctive enough to confirm that the source had particular, relevant, and specific knowledge;

• Whether any aspects of the CI information are contradicted by police investigation; and

• Whether the results of independent investigation by police conforms to what would be expected based on CI information, such that the possibility of falsehood, mistake, or coincidence is reduced to an acceptable degree in the context of the reasonable grounds standard.

[56] The Applicant argued that the information regarding the location of cocaine and its relationship to the target address was not corroborated. He submitted that the information at paragraphs 27-31, 33 and 34 of the redacted Appendix “X” indicates that the two CIs only corroborated each other’s information in relation to the Applicant’s name or nickname. The Applicant further argued that paragraphs 34-39 and 44 appear to be restatements of information provided by the CIs, and that it is unclear whether or how they are corroborative of non-generic information about the location of drugs or connecting drugs to the target address. The Applicant conceded that police verification of details other than the connection of the address to drug trafficking does help to get to reasonable grounds to believe. He acknowledged that this is because verification of other details demonstrates that the CIs were not completely fabricating all their information. However, the Applicant emphasized the need for me to look at whether police verified information that would not generally be known, and in particular whether they verified specific details relating to drug trafficking and how the Applicant’s home is connected to it.

[57] The Crown submitted that the unredacted ITO reveals that police verified a number of details contained in the CIs’ disclosures through independent investigation. Also, the CIs’ corroborated each other’s information in relation to the name or nickname for the Applicant, in addition to a number of details relating to his involvement in drug-related activities. The Crown position was that this went beyond verification of generic or ancillary details, and that the results of the verification negated the possibility of coincidence, mistake or falsehood.

[58] Police cannot be expected to corroborate the precise criminal act that is the subject of their investigation: Caissey, at para. 23. It is not a legal prerequisite to the issuance of a valid search warrant that they do so. But police are required to corroborate meaningful details — non-generic details — that confirm that the CI had accurate, specific, and relevant information. In this case, that means that police had to corroborate details that tended to confirm the CI information in relation to the Applicant’s drug dealing activities and support an inference that evidence of those activities would be found in his home. The question for my determination, then, is whether the issuing justice could find that there was police corroboration of meaningful information such that there was a credibly based probability that drugs would be found at the target address: R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721, at para. 44.

[59] In this case, the unredacted ITO reveals further information that the police were able to verify, but to which I cannot refer because it remains subject to informer privilege. I am mindful that I may only consider those unredacted portions of the ITO in relation to which I am satisfied that the Applicant was sufficiently aware of the nature of the excised material to be able to mount a challenge in argument or by evidence: Garofoli, at para. 6; Crevier, at paras. 43, 71. I may not rely on redacted portions of the ITO whose nature could not be adequately summarized in the judicial summary and provided to the Applicant: Crevier, at paras. 72, 87. I have instructed myself accordingly and conclude that the judicial summary adequately summarized the nature of the redactions relevant to corroboration (and all redactions).

[60] A careful review of all the information in the original ITO satisfies me that police did corroborate meaningful details of the CI information that tend to confirm the information relating to the Applicant’s drug dealing activities and to support an inference that evidence of those activities would be found in his home.

[61] I conclude that the issuing justice could have been satisfied that the police corroborated the CIs’ information to a reasonable degree in the circumstances.

c) Summary and conclusion on s. 8 application

[62] For the foregoing reasons, I find that the ITO contained CI information that was compelling, from two CIs who were reasonably credible, and that through independent investigation police verified the CIs’ information to a reasonable degree. The issuing justice, acting judicially and considering the ITO as a whole, could have found that the CIs’ information supported reasonable grounds to believe that the Applicant was in possession of cocaine for the purpose of trafficking, and that evidence of cocaine and drug trade paraphernalia would be found at 70 Cloverhill Road, Apartment #5.

[63] Consequently, I find that the warrant was validly issued. The s. 8 application is dismissed. Given my conclusion in relation to the s. 8 application, I need not consider whether the evidence should be excluded under s. 24(2) of the Charter.

III. THE SECTIONS 7 AND 10(B) APPLICATIONS

A. Overview of Applicable Legal Principles

[64] Section 10(b) of the Charter guarantees everyone, upon arrest or detention, the right to retain and instruct counsel without delay and to be informed of that right. Courts have repeatedly emphasized the importance of this right. In R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 45, Doherty J.A. highlighted that:

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

[65] The right to counsel is intended to assist detained persons to regain their liberty, and to help guard against the risk of self-incrimination: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 40.

[66] Police officers’ duty to inform a detained person of their right to counsel comprehends three related duties: (1) the duty to inform a detained person of their right to counsel (the informational duty); (2) the duty to give a detained person who wishes to do so a reasonable opportunity to exercise the right without delay (the implementational duty); and (3) the duty not to seek to elicit information from a detained person until they have had a reasonable opportunity to retain and instruct counsel (the duty to hold off): R. v. Manninen, [1987] 1 S.C.R. 1233, at paras. 21-23; R. v. Ross, [1989] 1 S.C.R. 3, at para. 11; R. v. Black, [1989] 2 S.C.R. 138, at para. 28.

[67] The informational duty requires that police inform a detained person of the right to speak with counsel without delay. If a detained person wishes to exercise that right, police must immediately provide them with a reasonable opportunity to speak with counsel: Suberu, at paras. 2, 38, 42; Rover, at para. 25. However, courts have recognized that specific circumstances may justify some delay in implementing the right to counsel: Rover, at para. 26. For example, delay in implementing access to the right to counsel may be justified in the following circumstances:

• Where required for police officer safety: Rover, at para. 26;

• Where required for public safety: Rover, at para. 26;

• Where required to preserve evidence: Rover, at para. 26;

• Where required to gain control of the scene of the arrest and search for restricted weapons known to be at the scene: Rover, at para. 26, citing R. v. Strachan, [1988] 2 S.C.R. 980.;

• In specific circumstances relating to the execution of search warrants: Rover, at para. 26, citing R. v. Learning, 2010 ONSC 3816, 258 C.C.C. (3d) 68, at paras. 71-75.; and

• Where the detained person would not immediately be able to consult with counsel in private, particularly where the “right to consult counsel in private would have been compromised by attempting to facilitate contact… while a search was underway”: R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at para. 77; See also R. v. Patrick, 2017 BCCA 57, 344 C.C.C. (3d) 137, at para. 116. This is because “[c]onsultation in private is a vital component of the s. 10(b) right”: Pileggi at para. 77, citing R. v. Playford (1987), 63 O.R. (2d) 289 (C.A.), at para. 31 and R. v. McKane (1987), 35 C.C.C. (3d) 481 (C.A.), at p. 134.

[68] Where there is delay in giving a detained person access to counsel, the burden is on the Crown to demonstrate that the delay was reasonable: Patrick, at para. 116.

[69] Even where police have initially met all their obligations under s. 10(b) of the Charter, in some circumstances they must give a detained person a further opportunity to consult with counsel. This will arise “where developments in the course of the investigation make this necessary to serve the purpose underlying s. 10(b) of providing the detainee with legal advice relevant to his right to choose whether to cooperate with the police investigation or not”: R. v. Sinclair, 2010 SCC 35, 324 D.L.R. (4th) 385, at para. 2, 43, 47-48, 53; R. v. Evans, [1991] 1 S.C.R. 869, at para. 48. Developments in an investigation that may give rise to a right to re-consult counsel include, but are not limited to:

• Where police propose to engage in new procedures involving the detained person, like participating in a line-up or submitting to a polygraph: Sinclair, at para. 50;

• Where there is a change in jeopardy so that the detained person is now facing (or potentially facing) significantly more serious charges than when they initially consulted counsel: Evans, at paras. 47-48; Sinclair, at paras. 2, 51; and

• Where there is reason to believe that the first information about the right to counsel was deficient, for example, because the detained person did not understand it: Evans at paras. 43-44; Sinclair, at para. 52.

[70] Where a breach of s. 10(b) does not directly lead to the discovery of the evidence sought to be excluded, s. 24(2) of the Charter may still be engaged. The threshold requirement in s. 24(2) that evidence be “obtained in a manner” that violates the Charter does not require a strict causal relationship between the breach and the evidence at issue: Strachan, at para. 43. A temporal or contextual connection between the breach and the evidence may suffice to engage s. 24(2) if the connection is not “too tenuous or too remote”: R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at paras. 56, 72.; Rover, at para. 35; Pileggi, at paras. 101-104, 107. However, the absence of a causal connection between the Charter breach and the evidence may be a factor that weighs against the exclusion of evidence: R. v. Lenhardt, 2019 ONCA 416, 437 C.R.R. (2d) 328, at para. 11. Where the Charter breach does not cause the evidence at issue to be found, this absence of causation may mitigate the impact of the breach on a defendant’s Charter-protected interests on the second branch of the s. 24(2) analysis: Rover, at para. 43; Pileggi, at para. 120.

B. Application to this Case

a) Facts

[71] Police attended at 70 Cloverhill Rd, Apartment #5, to execute the search warrant on November 17, 2020 at 3:24 p.m. They breached the door to the apartment, announced that they were police with a search warrant, and entered. They found Mr. Dubajic sitting on the couch in the living room with two dogs. He was cooperative and asked the police not to hurt his dogs.

[72] Detective Constable (“DC”) Sasa Sjlivo told the Applicant that he had a search warrant. The Applicant said he had nothing to say. He was handcuffed. The Officer cautioned him and advised him of his right to counsel. The Applicant said he understood. Officer Direnzo remained with the Applicant while DC Sjlivo started to search the apartment to clear it. He entered a bedroom and observed multiple duffle bags that contained bricks of what he believed to be cocaine, other clear Ziploc bags with other substances inside, and a black semi-automatic pistol in a plastic bag.

[73] DC Sjlivo estimated that he was in that bedroom for approximately 30 seconds, when he exited and told the other police officers what he had found. He indicated that the Toronto Drug Squad should be notified. DC Sjlivo then went back into the living room and arrested Mr. Dubajic for possession of cocaine for the purpose of trafficking and possession of a firearm. He read Mr. Dubajic his right to counsel and cautioned him. Mr. Dubajic said he did not have a lawyer, but that he did want to speak with duty counsel.

[74] At this point, DC Sjlivo asked Mr. Dubajic whether anyone else was living with him in the apartment. Mr. Dubajic answered the question, saying that he lived there alone and had been living there for 20 years.

[75] DC Sjlivo said that he asked this question because this was the largest seizure he had ever been involved in. He said he was concerned for his safety and for that of the other officers since he knew that such a quantity of narcotic was worth a lot of money, and he did not want to be ambushed by someone unexpectedly coming back to the apartment. DC Sjlivo had heard Officer Direnzo saying that officers had seen two males carrying duffle bags into the apartment building earlier that day. He maintained that he was genuinely concerned about officer safety.

[76] In cross-examination, DC Sjlivo agreed that when he asked Mr. Dubajic about others living in the apartment, all doors in the unit were open. The officer agreed there were four or five unmarked police cars outside the building and five officers in the unit. He also acknowledged that officers had taken investigatory steps before attending at 70 Cloverhill Road and had confirmed that no one other than Mr. Dubajic was listed as living there. He said he felt, notwithstanding the obvious police presence at the unit and the prior information that the Applicant lived alone, that it was a fluid and possibly dangerous situation. He wanted to confirm, for safety reasons, that no one else lived there who might return at any moment.

[77] Next, DC Sjlivo escorted Mr. Dubajic outside. He explained that he did so for Mr. Dubajic’s safety because he did not want Mr. Dubajic to be in the apartment if someone else did attend there. At this point, 3:31 p.m., DC Sjlivo ordered a transport wagon. He said that, at that time, because of the pandemic, police were strongly advised not to transport anyone in their vehicles. It was thought that transport wagons would offer greater physical distancing and limit exposure to COVID-19.

[78] The transport wagon arrived at 70 Cloverhill Road at 3:50 p.m. It departed for the police station at 3:54 p.m., arriving there at 4:23 p.m. Mr. Dubajic was paraded before the Staff Sergeant at 4:31 p.m. DC Woudenberg called duty counsel and left a message at 4:31 p.m. At 5:05 p.m., duty counsel returned the call and spoke with Mr. Dubajic.

[79] DC Sjlivo did not leave 70 Cloverhill Road until approximately 4:30 p.m. when the Toronto Drug Squad arrived.

[80] At some point at the police station, DC Sjlivo spoke with Mr. Dubajic and completed a drug treatment form as well as a show cause form. He said that the show cause form was intended to assist the Crown at the bail hearing. DC Sjlivo questioned Mr. Dubajic to fill out the form, and thereby learned that Mr. Dubajic was not married, had no children, had resided at 70 Cloverhill Road for 20 years, and was working as a painter. DC Sjlivo did not know at what time he asked these questions of Mr. Dubajic. He said that he had been told that Mr. Dubajic had spoken with a lawyer. But DC Sjlivo did not confirm that this was so before he asked the questions to fill out the show cause form.

[81] At 7:48 p.m., DC Sjlivo received a telephone call from Jordan Silver, who said he was a lawyer calling for Mr. Dubajic. DC Sjlivo was surprised to receive a call from a lawyer because Mr. Dubajic had said that he did not have a lawyer, and that he wanted to speak with duty counsel. DC Sjlivo wanted to confirm that Mr. Silver was a lawyer and that Mr. Dubajic wanted to speak with him. He immediately confirmed that Mr. Silver was a lawyer — either through the lawyer’s phone book or through Google — and that Mr. Dubajic wanted to speak with Mr. Silver. He then immediately connected Mr. Dubajic with Mr. Silver.

[82] When Mr. Dubajic was taken to court, the Crown sought a three-day hold on his bail hearing at the request of the police. This was to enable them to process all the drugs and guns that were seized when they executed the search warrant. The bail hearing was supposed to proceed on November 20, 2020, after the expiry of the three-day hold. It did not proceed on that day. Mr. Dubajic’s bail hearing took place on January 11, 2021.

[83] The Guns and Gangs Task Force processed the firearms that were seized from 70 Cloverhill Road, Apartment #5. It took them approximately two days to do so.

[84] The Toronto Drug Squad processed the drugs that were seized from 70 Cloverhill Road, Apartment #5. It took them approximately four days to do so.

[85] On November 24, 2020 at 5:20 a.m., DC Fielding attended at the Toronto South Detention Centre, woke Mr. Dubajic, and advised him of the further 76 charges that were being laid against him. The officer read him all 78 charges he was facing at that time. Mr. Dubajic said that he understood what had been read to him. DC Fielding asked him if he wanted to speak to a lawyer. Mr. Dubajic indicated that he wanted the officer to call his lawyer, Jordan Silver, and advise him of all the charges. He said he would speak to his lawyer “after that.” Mr. Dubajic provided Mr. Silver’s telephone number. Mr. Dubajic did not want to say anything in answer to the charges. He was polite and cooperative.

[86] At 6:48 a.m. the same day, DC Fielding called Mr. Silver and advised him of the updated charges. Mr. Silver said he was not in the office at that time but would be available between 8:00 and 10:00 a.m. to speak to his client. They arranged for Mr. Silver to have a call with Mr. Dubajic at 8:30 a.m. DC Fielding made arrangements with the Deputy Superintendent of the Toronto South Detention Centre by telephone, confirmed by email, for Mr. Dubajic to be able to speak with Mr. Silver on the phone at 8:30 a.m. At 8:38 a.m., DC Fielding called the unit of the detention centre where Mr. Dubajic was detained. He was advised by a correctional officer that Mr. Dubajic was on the phone with his lawyer.

[87] The information containing all 78 charges was sworn on November 25, 2020.

b) Analysis

i) The first alleged breach: failure to facilitate the Applicant’s access to counsel without delay

[88] The Applicant claimed that his right to retain and instruct counsel without delay was violated by the failure of the police to facilitate his access to counsel until approximately one hour and 40 minutes after he was detained. The Applicant argued that he should have been put into contact with counsel immediately upon detention.

[89] The Crown disagreed, arguing that the delay in contacting counsel was reasonable in the circumstances. Crown counsel noted that police were clearly aware of, and endeavoured to respect, Mr. Dubajic’s right to counsel at every step. DC Sjlivo informed Mr. Dubajic of his right to counsel upon entering the apartment and detaining him; and did so again shortly afterwards when he arrested Mr. Dubajic. DC Sjlivo testified that he could not immediately facilitate a call to duty counsel because the search warrant was being executed at the time. He said there would have been no way for Mr. Dubajic to seek the advice of counsel in private while officers were in the apartment searching. However, according to the Crown, police did everything reasonably possible to move matters along and facilitate Mr. Dubajic’s access to counsel in private as soon as possible. The transport wagon was called at 3:31p.m. It arrived at 70 Cloverhill Road at 3:50 p.m., and then at the police station at 4:23 p.m. Mr Dubajic was paraded at 4:31 p.m. At the same time, DC Woudenberg put in a call to duty counsel and left a voicemail. Duty counsel returned the call and spoke with Mr. Dubajic at 5:05 p.m.

[90] As noted above, courts have recognized that the inability to facilitate private conversation with counsel may justify some delay: Pileggi, at para. 77. 70 Cloverhill Road, Apartment #5 was characterized by counsel for the Applicant as a small apartment. Five police officers were inside it, executing the warrant. I accept that, in these circumstances, it was not possible for the Applicant to speak with a lawyer in private at that time. Consequently, I find that the police did not breach Mr. Dubajic’s right to consult counsel without delay by waiting until they arrived at the station where he could seek legal advice in private. I find that police were diligent in ensuring that Mr. Dubajic spoke to counsel as soon as possible in private. The delay in accessing the right to counsel was reasonable in these circumstances.

ii) The second alleged breach: failure to hold off in questioning the Applicant about whether he lived alone

[91] The Applicant alleged that his rights to counsel and to be free from self-incrimination were violated when DC Sjlivo asked him whether he lived alone before the Applicant had had an opportunity to consult counsel. He submitted that this was in violation of the officer’s duty to hold off on questioning him until he had exercised his right to counsel.

[92] The Applicant maintained that the question could not have been for officer safety, contrary to what DC Sjlivo said. Between the number of police vehicles outside 70 Cloverhill Road and the five armed police officers in the apartment, the Applicant argued, it would have been obvious to anyone that police were on scene. No one would enter the unit in these circumstances. In addition, at that point, police had “cleared” the unit. All doors to all rooms were open. Police knew what they had found. It was not a situation where another person could have been hiding in the apartment and calling for others to come join them there. Moreover, the Applicant submitted, information about whether anyone else lived there would not help police to determine whether anyone else was likely to come into the apartment. Police had seen two men coming and going. They were not necessarily residents. Non-residents could attend at the apartment too.

[93] DC Sjlivo’s real motivation in asking whether the Applicant lived alone, in the Applicant’s submission, was not officer safety. Rather, it was to investigate and elicit incriminating information. The Applicant argued that the officer was trying to establish that he had exclusive possession of the apartment. This was intended to assist the prosecution in proving that the Applicant had knowledge and control of the drugs and guns found there.

[94] At the hearing, I asked Applicant’s counsel whether there was any prejudice arising from DC Sjlivo’s question, given that the Crown will not rely on Mr. Dubajic’s answer at trial. Counsel replied that because there was no legitimate officer safety concern, DC Sjlivo’s failure to hold off did represent a breach of s. 10(b) of the Charter. He acknowledged that this breach on its own, absent Crown reliance on the answer, might well not lead to the exclusion of the other evidence in the case. However, he maintained that it was a still breach — one of several which together should lead to the exclusion of the evidence.

[95] The Crown submitted that there was no breach of the duty to hold off questioning in these circumstances. According to the Crown, this was a fluid, dynamic, and potentially dangerous situation. Officers had found a gun, which they were not expecting, and a large quantity of drugs. They did not know what else they would find, or whether anyone else would attend at the unit. Officer safety was a real and legitimate concern. DC Sjlivo testified that this was the largest seizure of guns and drugs he had ever been involved in. He explained that he was worried that someone might be returning to the apartment. He firmly denied that he was trying to elicit information from the Applicant for investigative purposes and maintained that he was only motivated by a desire to ensure officer safety. The Crown argued that DC Sjlivo’s evidence as to his motivation in questioning the Applicant is supported by the fact that the officer only asked the one question and didn’t ask anything further. In addition, the Crown submitted that there was no prejudice to the Applicant arising from the question or its answer because the Crown would not rely on them at trial.

[96] I find that DC Sjlivo was motivated by concern for officer safety when he asked the Applicant whether anyone else lived in the apartment. I accept that he was only trying to gather information about whether anyone else might show up and create danger. This was an extremely large stash of dangerous and valuable guns and drugs. It was the largest seizure DC Sjlivo was ever involved in. Police went to the address to search for drugs and were surprised when they found a gun. They didn’t know what else they might find. Officers had seen two men entering the building with duffle bags. I accept that this was a dynamic, fluid, and potentially dangerous situation. In these circumstances, it was reasonable for DC Sjlivo to be concerned for officer safety. Even when confronted by experienced counsel with the fact that police presence would have been very visible and that this would have deterred others from attending at the apartment, he was unshaken in his evidence that he was motivated only by safety concerns. That non-residents could also have come to the apartment did not make the existence of other residents irrelevant to officer safety. To argue otherwise, as the Applicant did, would be to argue that DC Sjlivo violated the Applicant’s rights in asking about other residents because he did not further violate the Applicant’s rights by asking even more questions.

[97] I am bolstered in my conclusion that DC Sjlivo was motivated by concern for officer safety and not by a desire to elicit incriminating evidence by the fact that he only asked the one question. He did not proceed to ask Mr. Dubajic whether the guns or drugs belonged to him, whether he knew about them, or any other question aimed at eliciting incriminating evidence.

[98] Given a legitimate concern for officer safety, it was reasonable to ask the Applicant whether anyone else lived in the apartment, even though he had not yet spoken with counsel. I am satisfied that the police did not violate their obligation to hold off on questioning the Applicant until he had spoken to counsel. The Applicant’s s. 10(b) right was not violated in this way.

iii) The third alleged breach: failure to hold off questioning the Applicant to fill out the show cause form

[99] The Applicant argued that DC Sjlivo breached his s. 10(b) rights by asking him questions from the show cause form before confirming that he had had an opportunity to consult counsel. He submitted that this was in violation of the officer’s duty to hold off, arguing that it was incumbent on DC Sjlivo to confirm that he had indeed spoken to counsel before questioning him.

[100] The personal information elicited by DC Sjlivo was not actually relevant to bail, in the Applicant’s submission. Given the quantity and type of drugs and the number of guns seized, there was no possibility of Crown consent to release on bail. In other words, no biographical information about the Applicant could or would be used by the Crown to determine whether to consent to bail. The Crown would never have consented to release. The Applicant argued that DC Sjlivo asked those questions for investigative purposes, not to assist the Crown in coming to a position regarding bail.

[101] The Crown’s position was that the Applicant’s right to counsel was not violated by the administrative questions asked for the show cause form. None of the questions about the Applicant’s marital status, his employment, and other details of his personal life were asked for investigative purposes. In the Crown’s submission, there is no duty on police to hold off questioning where none of the questions are for administrative purposes only.

[102] DC Sjlivo did not leave the search scene until approximately 4:30 p.m. He then drove to the police station. He did not note what time he arrived at the station, but the agreed statement of fact filed on this application indicates that the wagon transporting Mr. Dubajic departed from 70 Cloverhill Road at 3:54 p.m. and arrived at the police station at 4:23 p.m., a transport time of just under half an hour. If DC Sjlivo’s transport time from 70 Cloverhill Road to the station was similar, as it likely was, he would have arrived there at approximately 5:00 p.m. Mr. Dubajic spoke to duty counsel at 5:05 p.m.

[103] DC Sjlivo believed the Applicant had already spoken to duty counsel when the officer asked the show cause questions, but he did not confirm this to be so. In my view, it is very likely that the Applicant had spoken to duty counsel before being questioned for the show cause form. The officer’s departure time from the apartment, combined with the approximate travel time to the station, which I can infer the transport wagon’s travel time, leads me to conclude that DC Sjlivo would not have arrived at the station until approximately the same time as when Mr. Dubajic spoke to duty counsel. In these circumstances it seems likely that the reason DC Sjlivo was told that Mr Dubajic had spoken to counsel was because Mr. Dubajic had spoken to counsel.

[104] It would have been best practice for DC Sjlivo to confirm whether the Applicant had spoken with duty counsel, and to hold off questioning him until he had that confirmation. However, in these circumstances, his failure to do so does not constitute a breach of the officer’s duty to hold off. The burden of establishing the alleged Charter breach rests with the Applicant. He is the one who must prove that he did not have an opportunity to speak with duty counsel before the officer questioned him. Here, the Applicant did not meet his burden of establishing that DC Sjlivo questioned him before he spoke to duty counsel. He did not file any evidence establishing that he had not yet exercised his right to counsel when he was asked show cause form questions. And all the other evidence on point referred to above satisfies me that he almost certainly did speak with counsel before he was questioned. The Applicant’s s. 10(b) right was not violated in this regard.

iv) The fourth alleged breach: failure to give the Applicant his right to counsel without delay in relation to the 76 new charges

[105] The Applicant claimed that police violated his right to counsel by waiting until November 24, 2020 to advise him of his 76 new charges and give him his right to counsel in respect of them. This, according to the Applicant, violated his right to retain and instruct counsel without delay. The Applicant noted that he was initially charged with one count of possession of cocaine for the purpose of trafficking and one count of possession of a firearm. He argued that by five or six hours after the search commenced, police knew the number of guns and the quantity of drugs they had seized. By the end of four days after the search, all drugs and guns had been processed. It was his position that police knew what new charges they would be adding by the end of that four days at the latest. And yet, they waited a further three or four days, until November 24, 2020, to advise him of the new charges and give him his right to counsel in relation to them.

[106] The Applicant argued that the 76 new charges represented significantly more serious jeopardy than the two he was originally arrested for. Relying on Sinclair, he argued that this gave rise to a police duty to provide him with another opportunity to seek the advice of counsel. By waiting until November 24, he argued, the police breached his right to consult counsel without delay.

[107] The position of the Crown was that the Applicant’s s.10(b) rights were not violated by the failure to advise him of the new charges until November 24. Relying on R. v. Matthew, 2021 ONCJ 335, at paras. 147-152, the Crown argued that not every change in jeopardy will require that police provide a detainee with a second opportunity to consult counsel. It is only where there are new, different, unrelated charges or a significantly more serious offence or jeopardy than that contemplated when the right to counsel was originally accessed. In this case, the Applicant’s new charges were all similar to the two charges he had already spoken to counsel about. They all related to the guns and drugs seized from 70 Cloverhill Road, Apartment #5. The Crown argued that the Applicant did not face significantly more serious jeopardy from the new charges. He already faced a maximum sentence of life imprisonment for the single charge of possession of cocaine for the purpose of trafficking with which he was initially charged.

[108] The Crown further argued that the purpose of giving a detainee an opportunity to reconsult counsel is to ensure that they are meaningfully advised as to their rights, chiefly their right to silence: Sinclair, at paras. 23-29. In this case, Mr. Dubajic had already been charged and was detained pending a show cause hearing. There was no police interrogation or effort to elicit information from him after the date of his arrest and before November 24, 2020 when he was informed of the new charges and his right to counsel in respect of them. There was no questioning by police after they informed him of the new charges. Police were diligent in facilitating Mr. Dubajic’s right to counsel in relation to the new charges in a timely manner.

[109] Assuming without deciding that police violated Mr. Dubajic’s right to counsel by not informing him of his new charges until November 24, 2022, I would still not exclude the guns or drugs as a result. Even if police did violate Mr. Dubajic’s s. 10(b) rights in this way, it would be at most a very minor and technical breach. At worst, any such breach deprived Mr. Dubajic of the right to counsel at a time when he was already detained in custody on two serious charges, during which time police did not seek to or elicit any information from him, and during which time he did not provide any incriminating information to police — or any information at all. Once DC Fielding did inform him of the new charges, he immediately advised Mr. Dubajic of the right to counsel and diligently facilitated access. DC Fielding did not try to elicit any information at that time either. As a result, any breach of his s.10(b) rights arising from delay in facilitating new consultation with counsel would have minimal to no impact at all on Mr. Dubajic’s Charter-protected interests.

[110] In addition, any s. 10(b) violation here would be extremely temporally remote from the moment when the drugs and guns were found on execution of the search. So much so that s. 24(2) of the Charter is not engaged. I am cognizant that a breach does not have to directly lead to the finding of the impugned evidence to engage s. 24(2) of the Charter: Strachan, at para. 43. A temporal or contextual connection may be adequate: Pino, at paras. 56, 72. However, in this case, any breach of the right to counsel caused by delay in informing the Applicant of the new charges he faced did not crystallize until approximately five days after the search, when all the guns and drugs were processed. This is when the Applicant says the police must have known all the new charges and were required to advise him accordingly. In my view, a breach of the right to counsel approximately five days after the search and seizure has concluded is too temporally and contextually remote from the evidence seized to engage s. 24(2) of the Charter. The guns and drugs were not “obtained in a manner” that violated the Applicant’s right to counsel.

v) The alleged breach of s. 7 of the Charter

[111] In his Notice of Application, the Applicant claimed that his s.7 rights were violated when police demanded answers to questions while he was detained. He maintained that he was asked to incriminate himself at a time when he had not been given access to counsel and so could not make an informed decision to waive the right and provide the requested information. In this way, the Applicant tied his s.7 application to his s.10(b) application. At the hearing of these applications, counsel for the Applicant did not argue that the s. 7 breach was a separate standalone breach. Indeed, very little was said about the s. 7 claim at all.

[112] I have dismissed the alleged breaches of the right to counsel arising from police questioning. The Applicant relied on these alleged breaches of s.10(b) to ground his allegation that his s. 7 rights were violated. Having dismissed his s.10(b) claims, I find that his right to be free of self-incrimination was likewise not violated.

[113] Moreover, the Applicant did not, in the event, incriminate himself. His answer to DC Sjlivo’s question as to whether he lived alone will not be relied on at trial by the Crown to prove its case. His answers to the biographical questions DC Sjlivo posed for the show cause form are not incriminating. There can be no violation of the right to be free from self-incrimination without any self-incrimination.

c) Summary and conclusion on ss. 7 and 10(b) applications

[114] For the foregoing reasons, I find that police did not breach the Applicant’s right to counsel under s. 10(b) of the Charter in any of the four ways he alleged on this application. I also find that there was no breach of the Applicant’s right under s. 7 of the Charter to be free from self-incrimination. Given my conclusion in relation to the ss. 7 and 10(b) applications, I need not further consider whether the evidence should be excluded under s. 24(2) of the Charter.

IV. DISPOSITION

[115] The Charter applications are dismissed.

Madam Justice J. R. Presser

Released: December 6, 2022

COURT FILE NO.: CR-21-10000460

DATE: 20221206

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

DANIEL DUBAJIC, Applicant

REASONS FOR DECISION

Madam Justice J. Presser

Released: December 6, 2022

[^1]: I am aware that in Crevier, at para. 84, the Court of Appeal was setting out a non-exhaustive list of some categories of information that would assist in making a judicial summary adequate for the purposes of step six. In my view, the Crevier categories are also of assistance in reviewing whether the ITO contained enough information to enable the issuing justice to conclude that there were reasonable grounds on which the warrant could issue.