Court File No.: 17-0152

Date: 2022-02-09

Superior Court of Justice - Ontario

Re: R. v. Floriano Daponte and Vivian Lee Hamilton

Before: McArthur M.D., J

Counsel: K. Johnson and M. Smith, for the Federal Crown E. Hilzenrat for the defendant/applicant, Vivian Lee Hamilton E. Battigaglia, for the defendant/applicant, Floriano Daponte

Heard: December 20, 21, 22, 2021 and January 14 and 27, 2022

Ruling on S. 10 CHARTER aPPLICATION

Introduction

[1] The applicants request the exclusion of evidence of all seized substances and currency alleging violations of their rights under s. 10(a) and (b) of the Charter.

[2] The police executed a CDSA search warrant at a rural property owned by Ms. Hamilton. Ms. Hamilton and Mr. Daponte were arrested at the outset of the police entry. The search resulted in the seizure of quantities of prohibited substances as well as cash and other items.

[3] Both applicants were informed of rights to counsel upon arrest. Both were transported by police to the London OPP detachment. Both eventually spoke to counsel.

[4] Further seizures during the continued search resulted in additional charges for drugs, prohibited weapon possession, possession of crime proceeds and breach of a weapon prohibition.

[5] These are the reasons for concluding there were Section 10 breaches, the admission of the evidence will not bring the administration of justice into disrepute and the evidence from the execution of the search warrant shall not be excluded in this case.

Factual Overview

Investigation

[6] The defendants are charged jointly with seven counts of possession of prohibited substances, namely fentanyl, methylphenidate, morphine, suboxone, oxycodone, hydromorphone and cannabis, for the purposes of trafficking under s. 5(2) of the Controlled Drugs and Substances Act. They are also each charged with possession of property obtained by crime being substantial amounts of cash alleged to be the result of their drug trafficking activities under s. 354(1)(a) of the Criminal Code.

[7] The police had investigated the defendant-applicants for trafficking in prohibited substances throughout 2016. The investigation included many informants and the surveillance of a rural property owned by Ms. Hamilton at 2682 Coltsfoot Drive, Newbury. Both applicants were observed at the property from the surveillance.

[8] On December 1, 2016 Detective Constable Reintjes, the principal investigator, applied for a search warrant for the rural property pursuant to the Controlled Drugs and Substances Act. A search warrant was granted for the search and seizures at the residence and the outbuildings of the property.

[9] On December 2, 2016 at approximately 7:30 a.m., many officers attended a main regional OPP detachment in London for a twenty-minute briefing of the planned entry and execution of the search warrant. The London detachment is approximately a forty-minute drive to the rural property. The officers were called in from various other detachments throughout the OPP West Region, most of whom had no prior involvement with the investigation to that point.

[10] The SMEACC plan was developed by D/C Reintjes a day or two before. The plan was approved by the organized crime enforcement bureau of the OPP. SMEACC is the acronym for Situation, Mission, Execution, Command and Control.

[11] Detective Sergeant Brad Durfy, conducted the briefing. He was the overseeing Detective Sergeant of Street Crimes Unit for a designated area in OPP West Region. He had been involved in the investigation of drug offences since at least 1998. DC Reintjes was not at the briefing since he was conducting surveillance of the rural property at that time and monitoring the residence for other persons who might be found-ins.

[12] Both applicants were identified as individual targets in relation to the entry and searches for controlled substances and items in relation to trafficking. Both applicants were to be arrested and transported to the London detachment. Officers were assigned to various tasks at the rural property and at the London OPP detachment.

[13] There were two primary entry teams. One team was for the residence with officers trained and experienced on such entries and familiar in drug matters. A second team was made up of trained emergency response team members responsible to secure, contain and search the outside grounds area as well as other officers for scenes of crime production (photos and video) and individual transport.

[14] The plan also involved officers doing various duties including surveillance, entry clearing, securing, detentions and arrests, searches, transport of persons to London detachment and cell lodging procedures for those arrested. According to DS Durfy, Strathroy was a closer detachment to the property but it did not have audio or video capability at the time and had only two cells with one small window for access and viewing. It was designed as a holding cell detachment. Glencoe was an even smaller facility than Strathroy. London detachment had a more formal detention area with additional cells for two adults and youth. The youth cell also adapted for female detainees. The cell area in London also has bars, a separate room for private telephone communications and all areas are video and audio monitored by civilian guards. The area was also connected remotely to bail courts for arrested individuals, if needed.

[15] The plan and briefing identified two hazards of entry; found-in persons and vicious dogs.

[16] An additional briefing of officers was held at the Glencoe OPP office about 7 kms from the rural property. The officers then proceeded to a staging area proximate to the rural property. There were approximately 24 police officers involved with the various aspects of the operations. All officers were in marked uniform and equipped with issued use-of-force arms and items.

Search warrant execution and arrests

[17] Since 4:30 a.m. on December 2nd, DC Reintjes and two other officers conducted surveillance of the property. It was a frigid cold morning and one of the officers succumbed early to hypothermia. DC Reintjes relayed his observations of the property and individuals coming to and going from the property.

[18] At about 10:35 a.m., police made entry onto the property in two unmarked police pickup trucks, each with a team of approximately 7 to 8 officers. One team was directed to the residence and the other team to the balance of the property, out-buildings and vehicles. One officer used a fire extinguisher on at least two pit bull dogs encountered outside the residence. A police canine team was not brought in at this point to avoid escalation and conflict with the dogs.

[19] At approximately 10:36 a.m., one team entered the residence. Mr. Daponte was at the kitchen table with four other individuals. Ms. Hamilton was located in a bathroom. Both defendants were arrested soon after the entry and underwent pat-down searches around 10:46 a.m. A decision was made to conduct a further search of Ms. Hamilton since DC Snedden was aware of an obvious unknown crunchy object in crotch area of Ms. Hamilton’s pants from an initial pat-down search.

[20] Officers proceeded to other areas of the residence to clear and secure the residence. This was completed within minutes.

[21] In addition to the applicants, there were four other individuals in the residence who were not targets. There were also two pit bull dogs growling and moving unrestrained inside the residence. The applicants and one of the found-in individuals were each separately arrested and eventually transported to the London OPP detachment.

Seizures

[22] The officers searched and seized items from the residence and other areas of the property throughout the balance of the morning and afternoon. They exited at approximately 5:00 p.m. Many officers returned to the London OPP detachment to debrief, deal with seized items and attend to other related matters.

[23] The substances seized included 678 Hydromorphone pills, 120.5 Morphine pills, 1315 Oxycodone pills, 241 Methylphenidate tablets and 20 Suboxone tablets, 10 bags of cannabis marijuana with a total weight of 3228 grams. Police also seized $49,330.00 cash in Canadian currency and $250.00 U.S. along with various packaging materials, a digital electronic scale and other items. They also seized 32 fentanyl patches from Ms. Hamilton.

The Issues

[24] The real issue is whether the police violated the implementational duties by denying the applicants an opportunity to call their lawyer without delay and by eliciting evidence from them prior to being provided the opportunity to speak with counsel. Both applicants were eventually allowed a number of phone calls with Mr. Battigaglia.

[25] This case boils down mainly to the delay and its’ characterization in view of the authorities and whether there was eliciting of evidence from them before providing the opportunity to contact counsel.

[26] The applicants each bear the onus of the alleged Charter violations on a balance of probabilities.

Defendants’ Positions

[27] The applicants submit that their rights under s. 10(a) and (b) of the Charter were infringed by the police by the failure to inform each of them promptly of the reasons for detention, inform each of them without delay of each’s rights to counsel, the failure to facilitate access to counsel without delay and failure to hold off questioning and refrain from eliciting evidence from each of them until they communicated with their legal counsel.

[28] The applicants submit that the conduct of the police amounted to flagrant systemic failures and multiple breaches of the applicants’ right to counsel. The applicants submit this case is a more serious violation of Charter rights than the case in R. v Rover.

[29] The applicants submit that all the evidence of the searches should be excluded under 24(2) of the Charter.

Crown’s Position

[30] The Crown concedes s.10 breaches in relation to a failure to inform of additional charges while the applicants were arrested and the delay in providing the opportunity to exercise rights to counsel but submit there was no breach by the police in a failure to hold-off eliciting evidence from the applicants.

[31] The Crown submits the evidence obtained from the seizures ought not to be excluded in any event where, among other features, the right to seek advice from counsel was not completely denied.

The Legal Principles

Section 10(a) and (b) of the Charter

[32] The applicable provisions of Canadian Charter of Rights & Freedoms in this application are as follows:

s.10 Everyone has the right on arrest or detention

a) to be informed promptly of the reasons therefor; and

b) to retain and instruct counsel without delay and to be informed of that right.

[33] Section 10(b) imposes three distinct duties on police officers who take control over an accused person and their ability to contact counsel. These are:

i. Informational component: to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

ii. Implementational component: if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right;

iii. Duty to hold off: to refrain from eliciting evidence from the detainee until he or she has had reasonable opportunity to exercise the right to counsel.

[34] The right to be promptly advised of the reason for one's detention is founded on the notion that one is not obliged to submit to an arrest if one does not know the reasons for it. An individual can only exercise his/her s. 10(b) right in a meaningful way if the person knows the extent of his/her jeopardy.

[35] The phrase “without delay” means immediately. This immediacy requirement may only be subject to concerns of officer or public safety based on the circumstances of a particular case.

[36] In the September 2016 decision of R. v. Rover, the Ontario Court of Appeal considered the police policy to delay the accused's access to counsel until after the search warrant was obtained and executed no matter how long that took. The police had grounds to obtain a search warrant for the accused's residence and to arrest but they chose to arrest him before seeking a search warrant. When informed of his right to counsel, he immediately said that he wanted to speak to a lawyer. The accused was not put in touch with his lawyer for almost six hours after his arrest. The accused was charged with possession of the purpose of trafficking various drugs.

[37] The trial judge in Rover found that a search engaged sufficient concerns about officer safety and the preservation of evidence to justify some delay in providing the accused with access to counsel, but that there was no justification for the delay of 1 hour and 19 minutes from when the police arrested him at his residence to when the accused was told that he could contact counsel. The trial judge found the delay breached s. 10(b), characterized the s. 10(b) interference as moderate and found that there was no causal connection between the breach and the obtaining of evidence during the search. He characterized the interference with the accused's Charter-protected interests as moderate. The trial judge admitted the evidence of the search and found the accused guilty.

[38] The Ontario Court of Appeal overturned the convictions and entered acquittals and stated as follows:

[26] The s. 10(b) jurisprudence has, however, always recognized that specific circumstances may justify some delay in providing a detainee access to counsel. Those circumstances often relate to police safety, public safety or the preservation of evidence. For example, in R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, [1998] S.C.J. No. 94, the court accepted that the police could delay providing access to counsel in order to properly gain control of the scene of the arrest and search for restricted weapons known to be at the scene. Subsequent cases have accepted that specific circumstances relating to the execution of search warrants can also justify delaying access to counsel until the warrant is executed: see, e.g., R. v. Learning, [2010] O.J. No. 3092, 2010 ONSC 3816, 258 C.C.C. (3d) 68 (S.C.J.), at paras. 71-75.

[27] These cases have, however, emphasized that concerns of a general or non-specific nature applicable to virtually any search cannot justify delaying access to counsel. The police may delay [page143] access only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel. Even when those circumstances exist, the police must also take reasonable steps to minimize the delay in granting access to counsel: see, e.g., R. v. Patterson, [2006] B.C.J. No. 104, 2006 BCCA 24, 206 C.C.C. (3d) 70, at para. 41; R. v. Soto, [2010] O.J. No. 1644, 2010 ONSC 1734 (S.C.J.), at paras. 67-71; Learning, at para. 75; R. v. Wu, [2017] O.J. No. 653, 2017 ONSC 1003, 35 C.R. (7th) 101 (S.C.J.), at para. 78

[39] As is referred to in many other cases (for example, R. v. Learning, 2010 ONSC 3816), a line of authority has developed allowing the police to delay s.10(b) implementation duties when executing a search warrant. In R. v. Strachan (1988), 1988 CanLII 25 (SCC), police executed a search warrant at the accused’s home to search for drugs and knew the accused had two registered handguns there. The accused was arrested upon entry by the police into the home and advised of his s.10(b) rights. The accused immediately asked to exercise his rights to call his lawyer. The police delayed the exercise of s.10(b) rights for almost two hours while they carried out the search, interviewed two other men who were on the premises and then took the accused to the police station.

[40] Chief Justice Dickson gave the majority judgment of the Court and held that some delay of s.10(b) rights was justified in the circumstances:

The combination of an arrest in the accused’s home, the presence of two unknown people, and the knowledge that two restricted weapons were in the apartment, was a potentially volatile situation. It is true the accused had the proper registration permits for the weapons, but, notwithstanding, the possibility of their use was a serious matter for a police officer to consider while taking a person into custody. In my opinion, Constable Bisceglia was justified in preventing any new factors from entering the situation until some of the unknowns had been clarified. Thus I would say that the violation of s.10(b) did not occur when Constable Bisceglia initially prevented the appellant from telephoning his counsel. But once the accused had been arrested, the weapons located, and the other two people had left, the police were clearly in control and there was no reason why they should not have allowed the appellant to telephone a lawyer. I would hold that the denial of counsel began from that point.

[41] Another line of authority is distinguished in R. v. Patterson (2006), 2006 BCCA 24 where the accused was detained in his car for a driving offence. He was searched and was in possession of cocaine. He was arrested for the drug offence, advised of his s.10(b) rights and taken to the police station. The implementation of his s.10(b) rights was then delayed for six and a half hours while the police obtained a warrant to search his house for drugs and drug-related paraphernalia. The police had no information that there were other persons or firearms at the house. Levine J.A. gave the judgment of the Court and found a violation of s.10(b):

Strachan, Schultz, James, and Kiloh share certain characteristics not present in this case. All of them dealt with investigations in progress, involving high risk, volatile situations where firearms were known to be involved. The police had identifiable reasons for concerns about the potential for violence and a risk that evidence may disappear or be destroyed. In Strachan, the police encountered not only the accused, but two other unknown persons, during a search for known firearms. In Schultz, the accused was involved, with accomplices, in a violent armed kidnapping. In James, the accused and accomplices were involved in the violent murder of a security guard, and were known to be trading in firearms. In Kiloh, the accused were arrested in a volatile situation for armed robberies of jewellery stores where shots had been fired at civilians.

In this case, the trial judge accepted that Constable Richmond had concerns about officer safety and the preservation of evidence. But the concerns were of a general nature; there was no evidence that the police knew there were weapons in the residence, or that the appellant had accomplices in his drug dealings that were at large or in the residence. There was no investigation in progress until after the appellant’s arrest, which arose initially from a roadside stop for a driving prohibition. It took an unexplained three and a half hours to obtain the search warrant, and another fifty minutes until the search of his home began. The “suspension” of the appellant’s right to counsel extended over a total of six and a half hours.

In my opinion, the appellant’s right under s.10(b) of the Charter to retain and instruct counsel without delay was infringed when he was not allowed to use a telephone shortly after he was taken to the police detachment and charged. The police were not justified in “suspending” the appellant’s right for six and a half hours.

[42] For reasons that will be more fully developed, this case falls more within the principle in the Strachan line of cases than with the Patterson case.

Section 24(2) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) and R. v. Grant

[43] If there is a breach of a Charter right, the determination becomes whether the evidence of items seized should be excluded under s. 24(2) of the Charter. This approach was reformulated in R. v. Grant 2009 SCC 32, [2009] 2 S.C.R. 353 as follows at paragraph 71:

71 …When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute….

[44] Justice Doherty in R. v. McGuffie 2016 ONCA 365, [2016] O.J 2504 explained the operation of the inquiries in R. v. Grant as follows:

62 The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case: see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 33-34.

The Seriousness of the Charter Infringing State Conduct

[45] The first stage of the analysis as directed in R. v. Grant is to evaluate the seriousness of the state conduct that led to the breach with the main concern to preserve public confidence in the rule of law and its processes. As stated in Grant:

72 The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law….

74 State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.

Impact on the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)-Protected Interests of the Accused

[46] The second stage of the analysis focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused and calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The court must look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the incursion on the interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.

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

[47] Justice Doherty’s comments in R. v. McGuffie are instructive in relation to the third stage of the enquiry. He states as follows:

63 In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see e.g. Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see e.g. R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 81-89; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-112. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see e.g. Grant, at para. 140.

Analysis

December 1, 2016 Arrests and Rights to Counsel

[48] On the police arrival and exiting the pick-up trucks just before 10:37 a.m., Cst. Weber used a fire extinguisher on the pit bull dogs. One dog ran down the driveway and the other two dogs ran into the residence.

[49] The residence entry team consisted of seven officers who included team leader DS Johnston, DC Duncan, DC Millar, Sgt. Lewis, DC Rogers, and DC Snedden. DS Durfy had driven the truck to the residence that contained the team members.

[50] “Police. Search Warrant” was announced upon entry into the residence. Cst. Millar first entered the kitchen area through the screen door followed by DS Johnston. There were five people seated at the kitchen table including Mr. Daponte. These individuals were all detained and handcuffed by officers. Mr. Daponte was arrested and handcuffed and soon escorted onto the outside deck by DS Durfy and DS Johnston.

[51] The following is an outline and analysis in relation to each of the applicants. As will be apparent, there is substantial overlap of the events between the applicants as well as other individuals particularly in the first 1.5 hours after the entry.

Ms. Hamilton

Arrest and Rights to Counsel

[52] At 10:38 a.m., Ms. Hamilton was found by DC Rogers in the bathroom. She was in a three-quarters crouched position and appeared as though she was adjusting her pants. DC Rogers grabbed Ms. Hamilton’s arm and passed her to DC Duncan who in turn passed her onto DC Snedden, the female officer. DC Snedden placed Ms. Hamilton under arrest, handcuffed her and escorted to a chair in the kitchen. DC Snedden had been tasked at the briefing with clearing the house and the arrest of Ms. Hamilton.

[53] From 10:40 to 10:44 a.m., DC Snedden assisted the other remaining officer, DC Duncan, to check and clear the balance of the residence that included the basement area. DC Duncan had also been tasked as the exhibit officer for the search.

[54] DC Snedden was challenged by defence that she should have arrested Ms. Hamilton formally before the frisk search. DC Snedden testified it was impractical to read the rights to counsel in the mudroom area and that the frisk search was conducted for officer safety reasons. It was a fluid and unknown situation from the outset and the clearing the house was necessary to be completed at that time.

[55] I find DC Snedden was properly focused and conducted her duties in a reasonable manner in the circumstances. Clearing and securing a scene has long been recognized as a priority and necessary. DC Snedden’s and DC Duncan’s efforts over four-minute period, after the last of the individuals in the residence were detained, was entirely reasonable.

Frisk Search

[56] Immediately thereafter, at 10:44 a.m., DC Snedden escorted Ms. Hamilton to an adjacent area that was more private, confirmed her identity and performed a pat-down frisk search on Ms. Hamilton. DC Snedden had previous experience in performing frisk searches in drug matters and was aware, among other things, the possibility of needles on arrested persons that could stab or pick an officer as well as possible effects of various drugs on persons that officers may also come into contact with.

[57] DC Snedden found cash in 3 of 4 pant pockets and an obvious irregularity in the crotch area of Ms. Hamilton’s pants. The officer did not count the moneys and had no reason to believe the moneys would lead to a proceeds of crime charge.

[58] DC Snedden asked Ms. Hamilton about the irregularity and other sharp objects. Ms. Hamilton said “no” and “she did not” as to sharp objects. She said nothing and did not respond about the obvious irregularity. After being asked a second time by the officer if she had anything in her pants, Ms. Hamilton responded “nothing” and said she would show the officer in the bathroom.

[59] At 10:50 a.m., DC Snedden escorted Ms. Hamilton back to the kitchen area and sat her at the kitchen table. There were other individuals and officers all in the small kitchen area. Ms. Hamilton said she wanted to call her daughter. DC Snedden said no because she was under arrest. Ms. Hamilton’s phone was in front of her on the kitchen table and DC Snedden indicated that the phone could not be used since it was going to be seized as offence-related property and also could possibly be tampered with. The phone was seized.

Rights to Counsel, Primary and Secondary Cautions

[60] Cst. Snedden, with the assistance from a preprinted section in her notebook, said to Ms. Hamilton the following:

“I am arresting you…for the purpose of trafficking oxycodone, cocaine, hydromorphone and fentanyl. There are no charges at this point. It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free legal advice from a legal aid lawyer. If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for assistance 1-800-265-0451 is the number that will put you in contact with a legal aid duty counsel lawyer for free legal advice right now? I asked do you understand?”

Ms. Hamilton responded “Yes”.

The officer then asked her “Do you wish to call a lawyer now?”

Mrs. Hamilton responded “Yes I do.”

The officer asked her about her counsel of choice and Ms. Hamilton responded “Enzo Battigaglia from Toronto”.

[61] DC Snedden then read a primary caution to Ms. Hamilton as follows:

“You are charged or will be charged with possession for the purpose of trafficking oxycodone, cocaine, hydromorphone and fentanyl. You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence. Do you understand?”

Ms. Hamilton replied “yes”

The officer then asked “Do you wish to say anything in answer to the charge?” and Ms. Hamilton responded “No, I don’t”

[62] Cst. Snedden then read a secondary caution to Ms. Hamilton which was her practice when arresting individuals with other officers present. She stated as follows:

“If you have spoken to any other police officer or if anyone else in a position of authority has spoken to you in connection with this matter, I want it clearly understood that I do not want it to influence you in making a statement. Do you understand?”

Ms. Hamilton’s response was “yes”

[63] These rights to counsel and cautions were from the standard wordings printed in the officer’s notebook made Exhibit #7. I have outlined the wording as this juncture since this is the same or substantially same wording employed by other officers who will be mentioned in this decision.

Additional female officer and continued search

[64] At 10:53 a.m. with the dogs moving freely inside the residence, Ms. Hamilton was asked to assist to put the dogs into a room area blocked off from the officers and the other areas of the residence. Ms. Hamilton then was sat on the couch in the living room area. Ms. Hamilton asked officers to retrieve medication from the bedroom. The medication was retrieved from a nearby room.

[65] DS Durfy was liaising with other officers and attended back to the house after his dealing with Mr. Daponte on the deck outside the residence as will be detailed further. He was informed of the detention and details of the other found-ins individuals, one who had been arrested for trace amounts of drugs. DC Snedden advised him she had arrested Ms. Hamilton who had something unknown in her crotch area. DS Durfy had concern since he knew drugs like fentanyl can be trans-dermally released. There were legitimate possible safety risks that included drug effects and overdose of persons or officers.

[66] DS Durfy contacted dispatch for a female officer to attend to conduct a further search of Ms. Hamilton. He was told there was only one female officer, Cst. Carey, available from the Strathroy detachment. He directed that she attend the scene and was aware that she would be a thirty to forty minute drive away. The day before, DS Durfy had requested an additional female officer for the entry team but there was another project being undertaken and no other female officer was available who had stack-entry training.

[67] At 10:58 a.m., Cst. Carey was notified by dispatch that her assistance was required. She was on highway patrol north of Strathroy in the Strathroy detachment area. She proceeded directly to the scene.

[68] While awaiting Cst. Carey’s arrival, handcuffs at the back of Ms. Hamilton were changed by an officer and moved to the front of her body.

[69] DC Duncan remained with Ms. Hamilton in the living room area until she was escorted away by DC Snedden and Cst. Carey. At approximately 11:28 a.m., DC Duncan testified he had a conversation with Ms. Hamilton regarding her dogs.

Further search of Ms. Hamilton and additional offence

[70] At 11:32 a.m., Cst. Carey arrived at the scene, met briefly with DS Durfy and then she met with DC Snedden who explained the arrest and the reason to do a more intrusive search of Ms. Hamilton.

[71] At 11:35 a.m., Ms. Hamilton was escorted to the bathroom for privacy and a further search was conducted in the presence of both female officers. This took approximately five minutes. DC Snedden assisted to remove Ms. Hamilton’s jeans.

[72] At the beginning of this further search, DC Snedden asked Ms. Hamilton what was in her pants. Ms. Hamilton said she was scared, didn’t know what it was and had reached for the item on the sink when the officers were making entry. DC Snedden regarded the questions as conversational at this time in relation to the more intrusive search to determine what was in her pants. She also considered that this could be an effort by Ms. Hamilton to hide drugs.

[73] When Ms. Hamilton went to remove her underwear, a package fell out onto the floor. The package contained about 30 fentanyl patches. There was a further request of Ms. Hamilton by the officer to pull her bra out to ensure there was nothing hidden in that area. Ms. Hamilton complied throughout.

[74] There was no other search upon Ms. Hamilton. At no point in time did Ms. Hamilton remove her shirt and bra nor was entirely naked.

[75] At 11:48 a.m., DC Snedden told DS Durfy about finding fentanyl patches on Ms. Hamilton.

[76] DC Snedden re-arrested Ms. Hamilton for possession of fentanyl for the purpose of trafficking and provided rights to counsel again in the same manner as she had before. Ms. Hamilton acknowledge and understood.

[77] When asked if she wished to call a lawyer right now, Ms. Hamilton responded “Yes, it is still Enzo Battigaglia from Toronto.” DC Snedden told her they could get the phone number for her at the detachment. She testified she did not make an effort to contact counsel then since she could not provide Ms. Hamilton with privacy.

[78] Around this time, Ms. Hamilton also had conversation with D/S. Durfy about Mr. Daponte needing diabetes medication if he was going to be in the cells overnight. Ms. Hamilton directed the officer to areas in the kitchen where there was medication and a blood testing kit to check blood sugar levels.

[79] At approximately 11:50 a.m., DS Durfy testified that just before Ms. Hamilton was leaving the residence, she asked him for her lawyer’s phone number which was on a piece of paper under the phone on the wall in the kitchen under the name “Enzo” who was “her lawyer”. DS Durfy wrote 416 in his notebook and wrote down the full number on a piece of paper that was put in Ms. Hamilton’s personal belongings to be taken with her to the cells. DS Durfy did not know who her lawyer was nor the phone number other than the name and number he had been directed to by Ms. Hamilton. He testified he did not believe he passed along this information to any other officer.

Transport to London OPP detachment

[80] Cst. Carey took custody of Ms. Hamilton at 11:52 a.m. Ms. Hamilton had also pointed out medication and an inhaler in the kitchen to be taken for Mr. Daponte to the detachment.

[81] Cst. Carey transported Ms. Hamilton and a bag with her personal belongings directly to the London OPP detachment. Cst. Carey also testified she spoke to Ms. Hamilton about her dogs and how to get to the London detachment while on route since she was not familiar with that area.

[82] Cst. Carey arrived at detachment around 1:00 p.m. The booking area was busy with another individual. Ms. Hamilton remained in the police cruiser until cleared to enter the booking area approximately ten minutes after arrival at the detachment.

Lodge in cells and communications with counsel at 1:18 to 1:26 p.m.

[83] The detachment lodging of Ms. Hamilton involved DC Moore. DC Moore was aware that the applicants were the targeted individuals.

[84] At approximately 1:12 p.m., Ms. Hamilton was placed in the separate youth cell. Just prior to this, Cst. Carey confirmed with Ms. Hamilton if she had been asked if she had a lawyer and if she was contacting him. Ms. Hamilton provided Cst. Carey with the name Enzo Battigaglia when arriving at the detachment.

[85] DC Moore testified in cross-examination not recalling seeing a piece of paper in the personal property of Ms. Hamilton with Enzo Battigaglia’s phone number written on it. DC Moore agreed in cross-examination that DS Durfy never made any reference to him how to contact counsel for Ms. Hamilton.

[86] Defence counsel forcefully submitted that DS Durfy lied, he did not write the name and number of counsel down for Ms. Hamilton nor put it in her personal possessions. The position of the defence went beyond alleging indifference by DS Durfy to him actively subverting the right to counsel for Ms. Hamilton and, as will be mentioned later, Mr. Daponte.

[87] I find DS Durfy neither lied nor acted in any manner as submitted or implied by defence. There was no suggestion in the evidence that DS Durfy had any prior dealings with Ms. Hamilton. According to DC Moore, Ms. Hamilton said she “wanted to speak to Enzo Battigaglia”. DC Moore already had the phone number for Mr. Battigaglia that he had received over the phone before from DS Durfy when discussing medication for Mr. Daponte.

[88] Furthermore, at approximately 1:17 p.m., administrative staff advised DC Moore that Mr. Battigaglia was on the phone to speak to Ms. Hamilton. DC Moore made arrangements for Ms. Hamilton to speak privately with Mr. Battigaglia which occurred from 1:18 p.m. and 1:26 p.m. Afterward, Ms. Hamilton she told DC Moore that she was satisfied with the call.

[89] D/C Moore turned Ms. Hamilton to Cst. Carey for lodging in her designated cell.

[90] After a brief call from DS Durfy at approximately 1:38 p.m., DC Moore spoke to DC Snedden who provided the details of Ms. Hamilton’s arrest and re-arrest details, rights to counsel and cautions.

Arrest for additional charge and communications with counsel at 3:14 p.m.

[91] After receiving information after 3:04 p.m. from DC Reintjes, and while Ms. Hamilton was being fingerprinted at 3:08 p.m., DC Moore arrested Ms. Hamilton for the possession of marijuana over 3 kilograms for the purpose of trafficking. He also read her the standard-issued card’s right to counsel, primary caution and secondary caution (at 3:10 p.m.) as has been referred to earlier in detail. He did not ask Ms. Hamilton if she had anything to say because she was going to speak to her lawyer.

[92] Ms. Hamilton understood the rights to counsel and cautions and wanted to speak to Mr. Battigaglia.

[93] At 3:14 p.m., DC Moore placed a call to Mr. Battigaglia who enquired if Ms. Hamilton would be released. DC Moore advised him he was unsure, the officers were still searching at the scene. Ms. Hamilton was then on a private call with Battigaglia until 3:26 p.m.

[94] Mr. Daponte was then speaking with Mr. Battigaglia at 3:27 p.m. for one minute.

[95] At 4:15 p.m., DC Reintjes had called D/C Moore to ensure that both defendants had been re-arrested on the marijuana charge.

[96] DC Moore’s shift ended at 5:00 p.m. and he had no other involvement in the case.

Additional charges and declined communications with counsel at 10:17 p.m.

[97] At 4:42 p.m., DC Reintjes became aware through DC Millar that additional and other drugs were found. D/C Reintjes suspected the new pills were morphine but he was not sure and he left this determination for DS Durfy and DS Johnston who were the drug experts.

[98] DC Reintjes was aware of cash from the house but had little recall. He did not think a charge should be laid at that time. A charge in this regard proceeded by way of summons.

[99] He also indicated to seeing knives at the residence and knowing these were prohibited weapons.

[100] Once back to the attachment, DS Durfy examined the three pill bottles seized, pills were sorted, strength determined and catalogued by about 8:00 or 9:00 p.m. Morphine pills were confirmed. The additional charge drug of possession of morphine for the purpose of trafficking would have been within contemplation of the police by this time. However, DS Durfy did not have involvement in relation to the charge nor arrested in this regard.

[101] At 10:17 p.m. DC Reintjes attended the cell of Ms. Hamilton and re-arrested her for the charges of possession for the purpose of trafficking of Morphine, Hydromorphone, Ritalin, Suboxone and Oxycodone. He provided her rights to counsel and the primary caution. Ms. Hamilton responded that she would call her lawyer in the morning. Ms. Hamilton expressed her concerns about medications and spoke with DC Reintjes about the animals on the farm.

Mr. Daponte

Arrest and Rights to Counsel at 10:39 a.m.

[102] Mr. Daponte was seated at the kitchen table upon police entry at 10:37 a.m. DS Johnston was the second officer to enter and immediately identified Mr. Daponte. He directed Mr. Daponte to the ground and told him he was under arrest for possession for the purposes of trafficking based on the search warrant. He placed handcuffs on Mr. Daponte as assisted by DS Durfy. DS Durfy also was the driver of the truck for the entry team and was one of the last of the officer to enter the residence. There was a stack of Canadian currency on the table where Mr. Daponte had been seated.

[103] There was initially a lot of commotion inside the residence; two of the large dogs had entered the residence, four other individuals present were being detained and the residence was being examined and cleared by other officers. The small residence area is depicted in Exhibits #1 and #2.

[104] Given the commotion inside, DS Johnston and DS Durfy escorted Mr. Daponte to the outside deck and sat him on a plastic chair.

[105] At 10:39 a.m., DS Durfy introduced himself to Mr. Daponte and asked him if he knew who he was, Brad Durfy, from the OPP drug unit and if he remembered him. Mr. Daponte said “yeh, I know who you are”.

[106] DS Durfy formally arrested Mr. Daponte for possession for the purposes of oxys (oxycontin), cocaine, hydromorphone and fentanyl. DS Durfy read rights to counsel and cautions to Mr. Daponte from a standard police-issued card. The wording is substantially the same as indicated earlier in relation to Ms. Hamilton.

[107] Counsel for Mr. Daponte suggested to DS Durfy that he did not read rights to counsel to Mr. Daponte. Counsel pointedly raised with DS Durfy that he read the rights to counsel from a card, did not know which hand he held the card in and that DS Durfy’s notes said “from the back” of his book. The court finds none of this of significance nor consequence.

[108] At approximately 10:40 a.m., Mr. Daponte responded he understood and, in refence to talking to his lawyer, Mr. Daponte responded “later” according to DC Johnston and “not right now, later” according to DS Durfy. When asked by DS Durfy if he understood the primary caution, Mr. Daponte replied “yes” and if he wished to say anything to the charge, Mr. Daponte replied “no.” The court also observes defence counsel did not put the suggestion to DC Johnston that DS Durfy did not read rights to counsel to Mr. Daponte. DC Johnston testified he was present when DS Durfy arrested Mr. Daponte and rights to counsel read to him.

[109] DS Durfy then conducted a pat-down search of Mr. Daponte and found a flip phone as well as a metal ball-bearing from the pocket of Mr. Daponte’s track pants. The officer asked Mr. Daponte about the metal ball. Mr. Daponte said it was for good luck. DS Durfy removed Mr. Daponte’s right sock as part of the search and when putting it back on Mr. Daponte asked him what he was doing. DS Durfy replied he was checking the sock since on an earlier occasion elsewhere of Mr. Daponte’s, he found crack cocaine in Mr. Daponte’s sock. Mr. Daponte laughed at the time. DS Durfy then retrieved a pair of boots and put them on Mr. Daponte.

[110] At 10:44 am Mr. Daponte was escorted by officers Johnston and Durfy from the outdoor deck area to an OPP cruiser on the laneway. DS Durfy turned Mr. Daponte over to Cst. Howe for transport. DS Durfy testified he told Cst. Howe that Mr. Daponte had been arrested, provided his rights to counsel and caution and to transport Mr. Daponte to the London detachment and have him call his lawyer there. DS Durfy knew the drive time to London OPP detachment was a 45 to 50 minutes depending on traffic.

[111] DS Durfy expected Cst. Howe, as trained, would have provided Mr. Daponte with the secondary caution and then drive him directly to London OPP detachment. DS Durfy returned to the house and learned of Ms. Hamilton, Mr. Wilcox and other found-in persons inside the residence. DS Durfy was not aware that Mr. Daponte’s transport to the London OPP detachment was delayed at any point.

[112] DS Durfy also did not then know if Mr. Battigaglia was Mr. Daponte’s lawyer. Defence counsel pressed DS Durfy significantly in this regard. He knew Mr. Battigaglia had been Mr. Daponte’s lawyer in another long case and trial matter that ended a year and a half before that ended in a direct verdict of acquittal. This court accepts DS Durfy did not then know whether Mr. Battigaglia was still his lawyer. This was sensible particularly in view of the evidence of DC Moore that Mr. Daponte knew his lawyer was from Toronto but did not know his lawyer’s name particularly where Mr. Battigaglia had been his lawyer before for over a three-year period.

[113] DS Durfy knew that Mr. Daponte had a telephone. Mr. Daponte did not make any calls at the scene or otherwise since Mr. Daponte could not be afforded privacy until he was at the London detachment.

[114] DC Reintjes completed surveillance once the teams entered onto the property. DC Reintjes entered the property at 11:02 a.m. At 11:12 a.m. he was involved with one of the found-ins, Chad Wilcox, who was discovered in possession of a small amount of a substance upon detention and search. He handed Chad Wilcox onto am ERT team member for transport to the London OPP detachment. He then proceeded to be involved in searches and other duties at the property through into the afternoon.

[115] At 11:25 a.m., DC Reintjes observed Mr. Daponte in a police cruiser which surprised and upset him since Mr. Daponte should have already been transported to the London OPP detachment. He instructed Cst. Howe to transport Mr. Daponte to London detachment and ensure Mr. Daponte received his Charter rights to counsel and caution as to the charges as mentioned in the search warrant. DC Reintjes also knew it was a fifty-minute drive to the detachment.

[116] DC Reintjes had also observed Cst. Carey arrive at the scene around this time and later observed the officer leave at 11:52 a.m. to transport Ms. Hamilton to the London OPP detachment.

[117] DC Moore came from Elgin County detachment. After the earlier morning briefing, DC Moore remained at the London OPP detachment and made preparations at the cells in anticipation of the arrival of at least Mr. Daponte and Ms. Hamilton who were likely to be arrested as a result of his reading of the search warrant. He also had various periodic conversations with officers at the scene as to the status of matters and updated information in relation to those arrested. In particular, he had a number of calls with DS Durfy that included the following:

a. at 11:10 a.m. DS Durfy told him that he arrested Mr. Daponte at 10:39 hours for the CDSA charges (cocaine, hydromorphone, oxycodone and fentanyl), provided his rights to counsel at 10:40 a.m., caution at 10:41 a.m. and indicated that Mr. Daponte wanted to speak to a lawyer and would call from the detachment on arrival. There was also reference by DS Durfy to the arrest of Chad Wilcox;

b. at 11:28 a.m. DS Durfy indicated that Mr. Daponte was on his way to the detachment as well as provided additional information about Chad Wilcox that had not been mentioned before;

c. at 11:33 a.m. DS Durfy advised him that Mr. Daponte had a flip phone on him that was to be seized incident to arrest.

Transport to London OPP Detachment

[118] At approximately noon to 12:02 p.m., Cst. Howe arrived at the London OPP detachment with Mr. Daponte.

[119] Cst. Howe testified his task was as security at the roadway. He later testified he remained at the roadway and did not go onto the property or in the driveway.

[120] At 10:44 a.m. Mr. Daponte was escorted to Cst. Howe’s cruiser by DS Durfy who told him of the search, the arrest, rights to counsel and caution he provided to Mr. Daponte. Mr. Daponte was placed in rear of Cst. Howe’s cruiser. He knew Mr. Daponte from prior occurrences. He also worked out of the Glencoe detachment.

[121] Cst. Howe testified that he was to ensure that Mr. Daponte did not escape and there were no issues with Daponte while in the cruiser. He figured prisoner transport would come in the big van.

[122] At 11:23 a.m., Cst. Howe testified he was directed to take Mr. Daponte to London detachment. At 11:27 a.m., Cst. Howe testified DS Durfy directed him to take Mr. Daponte to the London OPP detachment to be processed by an officer there. Cst. Howe testified he then departed and arrived at the London detachment with Mr. Daponte at noon. Cst. Howe made no mention of a secondary caution. The court found Cst. Howe’s evidence confusing.

[123] DC Reintjes had testified at 11:25 a.m. and noted he observed Mr. Daponte seated in the rear Cst. Howe’s cruiser. He knew that entry into the residence was around 10:36 a.m. and that DS Durfy was to deal with Mr. Daponte’s arrest. DC Reintjes was surprised and upset that Mr. Daponte was still there since he was a main target. He instructed Cst. Howe to ensure that Mr. Daponte received his rights to counsel and caution as to the charges that were the subject of the search warrant. DC Reintjes knew it was a fifty-minute drive to the detachment. DC Reintjes’ surprise and upset was palpable.

[124] DS Johnston was present to observe and hear DS Durfy arrest, provide rights counsel and caution to Mr. Daponte and he heard and recorded Mr. Daponte’s responses. He also confirmed that Mr. Daponte was taken to a marked OPP cruiser for transport to the detachment by a uniformed officer at 10:44 a.m.

[125] DS Johnston was also not aware that Mr. Daponte had a lawyer and was not aware when Mr. Daponte left the scene to the detachment. He became involved to other assigned duties including searching the residence into the afternoon and was not involved in any other aspects involving Mr. Daponte’s transport or booking.

[126] Cst. Howe, in any event, did not have any discussions with Mr. Daponte on route to the London detachment.

[127] Cst. Howe’s testimony, that he was to ensure that Mr. Daponte did not escape or misconduct himself in the cruiser, made little sense. Even if he was there to ensure Mr. Daponte did not escape, there is no support nor any indication otherwise about Mr. Daponte being any escape or flight risk. The only hazards or concerns identified in the briefing to all officers were the dogs and other possible found-ins with. Mr. Daponte and Ms. Hamilton were the targets. Cst. Howe testified he was one of the officers at the briefing.

[128] I find Cst. Howe, for unexplained reasons, did not follow the direction and expectation of DS Durfy at 10:44 a.m. to address the secondary caution and transport Mr. Daponte immediately to the London OPP detachment. This expectation was also shared in part by DS Johnson. This court also finds that Cst. Howe did follow DC Reintje’s direction around 11:23 to 11:25 a.m. to transport Mr. Daponte to the London OPP detachment.

[129] Since Mr. Daponte arrived after a forty to fifty-minute drive for booking at the detachment by about noon, the only logical inferences are that Cst. Howe would have left the scene by approximately 11:22 a.m. at the very latest or drove very fast. I find that DC Reintjes at 11:25 a.m. did make his observations, was upset and expressed this in his direction to Cst. Howe. Cst. Howe must have driven very fast to the London OPP detachment. Cst. Howe’s indication that DS Durfy directed him at the time of 11:28 a.m. is in error. Furthermore, if such direction had been made to Cst. Howe at 11:28 a.m., it would have been even more unlikely Cst. Howe would have arrived at the detachment, escorted Mr. Daponte and be in the booking area for noon.

[130] In submissions, the Crown conceded she was at a loss to explain how the delay happened in the of transport of Mr. Daponte to the London OPP detachment. I find that Mr. Daponte was taken to Cst. Howe’s cruiser at 10:44 a.m. and that he should have arrived at the detachment by 11:34 or soon thereafter. This expected arrival time would also be in accordance with DS Durfy’s conversation with DC Moore at 11:28 a.m.

[131] In view of defence counsels’ submissions that DS Durfy lied to the court and was looking for payback against Mr. Daponte, this the court gave heightened scrutiny and consideration of all of the evidence in relation to his testimony. DS Durfy’s evidence is entirely coherent, logical and reliable and the court accepts his evidence in this regard.

[132] In any event, the delay in the transport of Mr. Daponte is solely attributed to Cst. Howe.

Lodging in cell and communications with counsel at 12:42 p.m.

[133] DC Moore was selected and assigned to this role since he was known for his attention to detail. He was assigned specifically to the individuals arrested and taken to the London OPP detachment. He was tasked to ensure their Charter rights and related cautions were provided, address lodging procedures and assist with bail briefs, if needed.

[134] In contemplation of the arrests, DC Moore had contacted the administration to arrange a civilian guard. He was not familiar with the personnel at this detachment. The civilian guards were familiar with monitoring system and matters related to arrested individuals detained at this location.

[135] The court was impressed with DC Moore as a witness. He was detailed and provided his evidence in a most frank, considerate, thoughtful and professional manner. DC Moore is a most reliable, trustworthy and credible witness and the courts accepts his evidence without qualification.

[136] Between 12:02 and 12:16 p.m. DC Moore took custody of Mr. Daponte upon arrival in the booking area. He went over many questions in relation to Mr. Daponte in relation to the booking. Mr. Daponte responded. He asked Mr. Daponte who the lawyer was to be phoned. Mr. Daponte was unsure of the name but it was a male lawyer from Toronto. Mr. Daponte asked DC Moore to wait until Ms. Hamilton arrived at the detachment and to get the name from her.

[137] By 12:18 p.m., DC Moore noted the civilian guard was present. As previously directed by DS Durfy, officer Moore he seized the flip phone from Mr. Daponte’s property. Cst. Howe has previously powered off the phone. Mr. Daponte told the officer he required insulin.

[138] At 12:34 p.m., DC Moore called DS Durfy about medication for Mr. Daponte. A discussion followed about Mr. Daponte not having any part of his counsel’s name. DC Moore understood that DS Durfy was in the kitchen at the scene at that time and DS Durfy said that his name is written on a board or wall in the kitchen and then read out to DC Moore, “Enzo 1-416-931-6411”.

[139] At 12:36 p.m., DC Moore saw Mr. Daponte. DC Moore made him aware of the information of Enzo and the phone number provided. As a result of the effort of DC Moore, Mr. Daponte did not have to wait for his counsel’s name and number to be provided upon Ms. Hamilton’s arrival at 1:12 p.m.

[140] At 12:39 p.m., DC Moore called Enzo Battigaglia and advised him that Mr. Daponte was in custody and the reasons for arrest for drug possession for the purpose of trafficking of the four substances as mentioned in the search warrant.

[141] At 12:42 p.m., Mr. Daponte had a call with Mr. Battigaglia in a private booth that was completed in one minute. Mr. Daponte was satisfied with the call and said that the lawyer wanted to speak with the officer regarding information for bail court.

[142] DC Moore then went back onto the line and spoke to Mr. Battigaglia to provide him with information about bail and court.

[143] D/C Moore then next dealt with Chad Wilcox, one of the found-ins and not a targeted person as was Mr. Daponte or Ms. Hamilton.

[144] At 12:49 p.m., DS Durfy took the diabetic medication to Sgt. Boucher and directed him to transport the medication to London detachment for Mr. Daponte. He did.

Additional charge at 3:03 p.m. and speaks to counsel at 3:14 p.m.

[145] At 3:08 p.m., after a call four minutes earlier from D/C Reintjes advising to rearrest both for possession for the purpose of cannabis marijuana over three kilograms, DC Moore attended on Ms. Hamilton who advised her of arrest for the offence as mentioned, provided her rights to counsel and primary caution and secondary caution which Ms. Hamilton said she understood. She wanted to have contact with her lawyer.

[146] At 3:14, through DC Moore, a call was made to Enzo Battigaglia. Mr. Battigaglia enquired if Ms. Hamilton would be released and D/C Moore advised he was unsure, the officers were still searching at the scene. Ms. Hamilton was then on a private call with Battigaglia until 3:26 p.m. and she indicated to DC Moore that she was satisfied with the call.

[147] DC Moore made a similar effort in relation to Ms. Hamilton around this time period as is outlined earlier.

[148] At 3:48 p.m., Ms. Hamilton’s son called and Ms. Hamilton spoke to him.

[149] DC Moore testified that at no time was he aware nor told about the charge involving morphine for either or both defendants nor involving any new weapon charges in relation to Mr. Daponte.

Additional charge, rights to counsel and caution at 10:10 p.m.

[150] At 10:10 p.m. to 10:15 p.m., after the pills had been seized from 4:43p.m. and later determined what these were, DC Reintjes re-arrested Mr. Daponte for possession for the purpose of trafficking for the substances morphine, hydromorphone, ritalin, suboxone, oxycodone as well as for two counts of possession of prohibited weapons, being the flick knives.

[151] DC Reintjes read Mr. Daponte his rights to counsel which he understood, asked if he wanted to speak to a lawyer which he said he did not. He also read to Mr. Daponte the caution from his card including the statement that he was not obliged to say anything. Mr. Daponte indicated that he understood by nodding his head but looked confused about the weapon charges. Mr. Daponte was asked about speaking to his lawyer and responded that he did not, he would call in the morning.

[152] At 10:17 p.m., DC Reintjes attend upon Ms. Hamilton in the cell area.

[153] At 10:18, he arrested Ms. Hamilton the list of drug charges and the weapons charges from a charge sheet and read her rights to counsel and caution. She understood the rights to counsel and caution, expressed uncertainty about the weapon charges. She responded that she would call her lawyer in the morning.

Additional charge and rights to counsel 12:46 a.m., December 3rd

[154] At 12:45 a.m., now December 3, DC Reintjes re-arrested Mr. Daponte for breach a probation order for a weapons prohibition. He provided him his rights and 12:46 a.m. to counsel and caution at 12:47 a.m. which Mr. Daponte nodded yes and said he understood. Mr. Daponte had no questions and that he did not wish to speak to his lawyer at that time.

December 3, 2016

Bail court for both Ms. Hamilton and Mr. Daponte

[155] DC Reintjes left the office at 3:00 a.m. December 3rd after working almost the prior entire twenty-four hour period. December 3rd was not a scheduled work shift for him.

[156] DC Reintjes candidly admitted that on December 2, he missed advising Mr. Daponte about a charge in relation to a breach of a firearms prohibition order. He explained he may have missed it since no firearms had been seized, only a flick knife.

[157] In view of the weather conditions, the myriad of persons, officers, locations and activities in relation to the surveillance, search, seizures, detentions and arrests including the additional arrest of a non-targeted individual and other related circumstances, it is certainly understandable how this may have been overlooked by him.

[158] In this regard, there was a potential change of jeopardy of the applicants in relation to the weapons offences as well as for Mr. Daponte in that there could be increased sentences upon conviction as well as a consecutive jail sentence for breaching a weapon’s prohibition order. The real issue is to what extent, if any, did this undermine the rights to counsel of the applicants.

[159] I find there was the failure provide reasons to Mr. Daponte in relation to the breach of the prohibition order. This likewise is the case for both applicants in relation to the weapon possession charges. This court finds this was an oversight on DC Reintjes part and not, in any manner, intentional.

[160] DC Melissa Kovacs was tasked on December 3, 2016 to oversee WASH weekend bail court for both applicants that commenced at 10:00 a.m. remotely.

[161] At 10:10 a.m. DC Reintjes had called into the detachment and was subsequently advised that some further information was required since both applicants’ lawyers were attending bail court that day.

[162] Mr. Daponte attended the weekend remote bail court at approximately 10:10 a.m. and was returned to his cell at 10:21 a.m.

[163] Ms. Hamilton attended the weekend remote bail court at approximately 10:29 a.m. and returned to her cell at 10:37 a.m.

[164] DC Reintjes indicated he may have spoken to Ms. Hamilton that day but he made no notes and had no recall.

[165] At 10:55 a.m., DC Reintjes arrived at the London OPP detachment. He realized that he had missed the probation order involving Mr. Daponte the night before.

[166] At 10:47 a.m., DC Kovacs read the rights to counsel to Ms. Hamilton who responded as speaking to a lawyer as “Yes, Enzo Battigaglia.” DC Kovac stated she was not arresting Ms. Hamilton. She then researched Mr. Battigaglia’s number with an internet search, called the number and left a voicemail message for Mr. Battigaglia.

[167] 10:47 a.m., DC Kovacs read the rights to counsel to Mr. Daponte and asked if he wanted to speak to a lawyer. He responded “No”.

[168] DC Kovacs was assigned to another detail and had assumed D/C Reintjes followed up in this regard.

[169] There was no evidence before the court on this application as to what transpired the balance of that day or what counsel, if any, were involved in this regard. In any event, both applicants were released on bail.

Chad Wilcox and other found-ins

[170] Mr. Wilcox was one of the found-ins in the kitchen area upon entry by the officers. He was detained, handcuffed and searched for weapons. Syringes and a spoon for drug use were discovered on him and seized. He was then arrested for possession of a drug, read his rights to counsel and cautions at 10:42 a.m. by DC Millar. Mr. Wilcox was turned over to Cst. Dilks at 11:15 a.m. who transported him to London OPP detachment where he underwent the same lodging procedure and arranged a call with his lawyer by 1:17 p.m. At 1:24 p.m. DC Moore was advised his lawyer was not in. DC Moore then called duty counsel for him at 1:32 p.m. Mr. Wilcox had a call with a lawyer at 1:40 to 1:42 p.m.

[171] An older couple in the kitchen upon police entry were also detained, at least of them handcuffed by another officer and told the reason was in relation to the search of the property. The male was frisk searched at 10:56 a.m. DC Snedden dealt similarly with the female. Neither were arrested nor charged with any offences and both released from the scene at 11:03 a.m.

[172] There was also a male salesperson found in the residence. He was likewise soon released from the scene.

Analysis and Conclusions regarding Section 10 [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

Holding off

[173] The leading authority is R. v. Manninen, 1987 CanLII 67 (SCC) that states:

“s.10(b) imposes on the police the duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel…For the right to counsel to be effective, the detainee must have access to this advice before he is questioned or otherwise required to provide evidence.”

[174] There is a duty on the police not to call upon the detainee to provide evidence until a reasonable opportunity has been given to retain and instruct counsel.

[175] Not every questioning is an attempt to elicit evidence. In R. v. Learning, 2010 ONSC 3816, the accused made a damaging utterance “look, the gun is mine” after the accused had been elaborately cautioned about the right to remain silent and had been by police if he wanted to call his lawyer and had told him that they could not discuss the matter until after the search warrant was executed. Justice Code stated:

“merely asking the accused for background information for the Record of Arrest, such as his date of birth, address, phone number, height and weight, and was taking note of his clothing and any identifying features, this would not constitute “eliciting evidence from the detainee” or “calling upon the detainee to provide evidence”. Indeed, the routine booking process when the accused first enters the station, involves similar kinds of questions that have no evidentiary value in relation to the charges against the accused.”

[176] The analysis should also take into account what the officer’s purpose was at the time.

Mr. Daponte

[177] The defence takes issue with DS Durfy asking about the ball-bearing in Mr. Daponte’s pocket discovered along with the flip phone during the pat-down search. The court has already made the finding as to DS Durfy’s credibility and reliability. DS Durfy did not at any point call upon Mr. Daponte to provide incriminating evidence. DS Durfy was conducting a pat-down search at the time looking for weapons or other items in relation to addressing legitimate safety concerns. The questions nor the answers at this point have any evidential value whatsoever in relation to any of the charges.

Ms. Hamilton

[178] Ms. Hamilton did make various statements in the presence of officers while arrested. Most of these statements have been referred to earlier in this decision and need not be repeated here.

[179] With one exception to be examined momentarily, I find there was no eliciting of incriminating statements or calling upon Ms. Hamilton to provide incriminating evidence by any of the officers. The questions, commentary and answers have no evidential value in relation to any of the charges. These conversations were mainly around medications, the dogs, animals on the property, etc.

[180] As to Ms. Hamilton’s responses to DC Snedden about the item in her crotch area just before the subsequent more intrusive search, the purpose of D/C Snedden’s enquiry was to determine if the item raised any safety issues to the police or to the detainee. This was a legitimate purpose of a drug search warrant where a targeted person is arrested and taken into custody. DC Snedden purpose was for legitimate safety concerns and she fairly acknowledged the possibility that drugs might be found on her given the circumstances. The further search remained confined to hidden items as well where her bra was pulled forward briefly and checked. At no time was Ms. Hamilton naked or subjected to a strip search.

[181] Defence counsel submitted there was also the added issue of some of the officers providing the caution in a manner that has been found to violate the duty to hold-off. The Supreme Court of Canada in R. v. G.T.D. 2018 SCC 7 determined that the question “Do you wish to say anything?” at the conclusion of the standard caution card after the accused had already involved his right to counsel, violated the duty to hold off because it elicited a statement from the accused. The Court determined that a single statement made should be excluded. It is unnecessary for the court to address this aspect in view of the findings above that the police were not eliciting incriminating evidence from either Mr. Daponte or Ms. Hamilton.

[182] Neither applicant has satisfied the onus in relation to a breach of the duty of police to hold-off.

[183] The defence submitted as well that the police use of the caution was, along with other conduct, demonstrated an indifference and amount to a systemic disregard of Charter rights of the applicants and other individuals at the residence.

[184] Even if there were issues to address on this basis or otherwise, I am mindful that this case well-preceded the decision of the Court in G.T.D. decided in February 2018.

Delays

[185] The plan to execute the warrant involved 24 police officers, many of which had no prior involvement with the investigation and had been brought in from other detachments based on training and experience. The entry plan was prepared by the principal investigator well-aware of the overall situation. The plan took into consideration the specific circumstances as were known at the time including the potential hazards that were reasonably expected to be encountered, identified the targets involved to be arrested. The plan was reviewed and approved by senior officers.

[186] The plan involved the involvement of specifically trained officers who were to ensure the Charter rights for those arrested were made known and addressed.

[187] As to the more intrusive frisk search of Ms. Hamilton, I find that the officers could not have reasonably contemplated this development. This finding is fortified in view of Mr. Daponte’s situation that involved a singular limited frisk search.

[188] The police in this case were soon in control of the house as well as the targets of the search and arrested in accordance with the plan.

[189] Here the police entry and execution of the search warrant was at a rural property that involved the applicants. As it turned out, the identified hazards did materialize and certainly occupied the early attention and efforts of the police; the dogs were sprayed and eventually contained within the house; and other persons were found in the house that lead to additional detentions.

Mr. Daponte

[190] Mr. Daponte was arrested soon after taken to Cst. Howe’s vehicle at 10:44 a.m. to be transported to the London OPP detachment and be afforded the opportunity to have contact with his counsel on arrival. If Cst. Howe had transported Mr. Daponte at 10:44 a.m., Mr. Daponte could have most likely had contact with counsel by 11:24 to 11:34 a.m., well within an hour of the police entry into the residence.

[191] In the circumstances, if matters had proceeded as planned, there would arise no issue as to the delay in contacting counsel in the circumstances.

[192] In accordance with the plan to arrest and transport Mr. Daponte immediately to the London OPP detachment, the police, practically speaking, were not able afford privacy to Mr. Daponte either inside or outside the residence. Inside the residence were two dogs roaming about, multiple found-ins detained, multiple other officers. Outside the residence was the arrival of another investigative team and frigid weather conditions.

[193] Upon immediate transport to the detachment, the police could also not reasonably have afforded Mr. Daponte privacy while handcuffed in the police cruiser on route to the detachment.

[194] It was also not practical to use Mr. Daponte’s cell phone since it had been inventoried, turned off and seized as offence-related property. In any event, the practical inability to afford privacy to Mr. Daponte would have continued in relation to his transport in the police cruise whether he even had the use of his cell phone or that other any other person.

[195] There is little significance to entertain an analysis of the use of cell phones, going to other detachments or any other possibilities outside of what had been planned. The delay was the failure of Cst. Howe’s and resulted in at least a thirty five to thirty seven minute delay.

[196] I am mindful of the case of R. v. Taylor 2014 SCC 50 that provides that constitutional rights cannot be displaced by assumptions of impracticality. Barriers must be proven, not assumed, and proactive steps are required to turn the right to counsel into access to counsel.

[197] The defence submission that this was part of an overall indifference or animosity of police to the rights and situation of Mr. Daponte is not borne out on this evidence. For example, both DS Durfy and DC Reintjes clearly expected Mr. Daponte to be taken without delay to the London detachment. They also ensure medications were located and transported for the applicants when needed. DC Moore was at the detachment specifically tasked and followed through without fail ensuring Charter rights of the applicants were addressed throughout.

Ms. Hamilton

[198] The intervening delay occasioned by the further frisk search upon Ms. Hamilton was an event outside of the reasonable contemplation and control of the police. DS Durfy had requested an additional trained female for the entry team. There were no other female officers who were qualified in this regard. The further frisk search was legitimate and necessary and required another female officer. There is no evidence to suggest that the police contemplated further intrusive searches of females and that additional female officers should be available in this regard.

[199] The police concern of a lack of privacy persisted inside the residence from the police entry until Ms. Hamilton was escorted to Cst. Carey’s cruiser. The privacy concern continued as well in the transport of Ms. Hamilton in handcuffs in the police cruiser by Cst. Carey in the same way as outlined in regard to Mr. Daponte.

[200] I find that this delay cannot properly be the responsibility nor attributed to the police. Upon arriving at the detachment, DC Moore already had the phone number of Mr. Battigaglia and there was no other delay in arranging Ms. Hamilton to contact her lawyer once the lodging process was completed. I find there is no breach of the s. 10(b) right of Ms. Hamilton in this regard.

[201] In view of these findings, it is unnecessary to consider the use of police cell phones in this case. While s. 10(b) does not create a right to use a specific phone, it does guarantee that the individual will have access to a phone to exercise his right to counsel at the first reasonable opportunity.

Charter Summary

[202] This court finds that the s. 10 rights have been breached as follows:

a. s. 10 (b) rights to counsel of Mr. Daponte were improperly delayed in their implementation by approximately 30 minutes;

b. s. 10(a) Charter rights of Mr. Daponte to be informed without delay on December 2 of the charges of breach of a weapon prohibition order, possession of prohibited weapons and possession of morphine for the purpose of trafficking;

c. s. 10(a) Charter rights of Ms. Hamilton to be informed without delay on December 2 of the possession of prohibited weapons and possession of morphine for the purpose of trafficking.

Analysis - [Section 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html).

The Seriousness of the Charter Infringing State Conduct

[203] One end of the spectrum has been described as deliberate police conduct in violation of established Charter standards. This would support exclusion of the evidence. The other end are inadvertent or minor violations of the Charter.

[204] The s. 10(b) violation in relation to Mr. Daponte is moderate. In this case the principal investigator, DC Reintjes, and DS Durfy had no involvement in creating nor condoned the delay that arose and both were each sensitive to and planned and took measures with the specific Charter rights of the applicants in mind. The delay arose as a result of an inexplicable failure of Cst. Howe primarily to transport Mr. Daponte when directed.

[205] The delay can also be seen in the context of the execution of a valid search warrant at a rural property that involved 24 officers from various locations. The failure of one officer is isolated and not a systemic failing nor a demonstration of indifference to accused persons or their Charter rights.

[206] The s.10(a) violations in relation to both applicants are minor and, when considered in relation to the other charges particularly, of lesser significance and due to inadvertence of the principal investigator where the investigation resulted in other multiple charges against the two targets as well as another person, and the brief detention of others. This further demonstrates that the Charter infringing conduct was not deliberate nor systemic.

[207] Overall the combination of the s. 10 (a) and (b) violations tends toward a moderate risk that some evidence would bring the administration of justice into disrepute. Albeit these are isolated, short-term and unintentional, they still are a disregard of fundamental rights that moderately favours exclusion.

Impact on the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)-Protected Interests of the Accused

[208] The court must next consider to what extent did these breaches actually undermined the interests protected by the right infringed.

[209] The s.10(b) violation played little to no role in undermining Mr. Daponte’s right to consult counsel. Except for a brief temporal delay, Mr. Daponte had communications with his counsel on multiple occasions on December 2, 2016 with no concerns. The same could be said if there had been s. 10(b) violations in relation to Ms. Hamilton.

[210] The s. 10(a) violations in relation to each Mr. Daponte and Ms. Hamilton were again only of relatively short temporal delay. The applicants both proceeded with bail court the day following with their counsel. Neither the breach of weapons prohibition nor possession of weapon charges remain before the court to be addressed.

[211] The collective impact of these Charter breaches on the applicants is minor, not long-lasting in effect nor intrusive. The incursion on the applicant’s interests is not significant. This makes for a small risk that admission of the evidence would bring the administration of justice into disrepute and does not tend to favour the exclusion of the evidence.

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

[212] The evidence seized in this case was otherwise all properly obtained pursuant to a valid search warrant. The entire chain of events by the police and the applicants is one where the predominant actions of the police toward the applicants is otherwise Charter-respected and compliant. There is an absence of deliberate or cavalier disregard for other Charter rights by the police in this case from the search plan to its execution. There was no animosity, individually or collectively, by the police to the health or welfare of the applicants.

[213] Our Court of Appeal in R. v. Pino, 2016 ONCA 389, in considering the “obtained in a manner” feature of s. 24(2) of the Charter, has directed the court to consider the following:

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

b. the court should consider the entire "chain of events" between the accused and the police;

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

d. the connection between the evidence and the breach may be causal, temporal or contextual, or any combination of these three connections; but the connection cannot be either too tenuous or too remote.

[214] This court has given as complete of a review of the chain of events between the accused and the police as noted earlier and made the findings. The Charter breaches that arose in this case are not a part of a police policy of denying the right to counsel like R. v. Rover where policy was to delay the accused's access to counsel until after the search warrant was obtained and executed, no matter how long that took.

[215] In this case, both applicants were arrested and provided their rights to counsel and subject to legitimate pat-down searches with the police intention to ensure they were transported from the scene and taken to a detachment where their Charter rights to counsel were addressed as soon as practicable. The intervening additional search of Ms. Hamilton resulted in a necessary delay while other arrests, detention and search activities were concurrently being conducted in that immediate area where privacy could not be afforded. That feature was not of the police’s making nor reasonably expected.

[216] The subsequent transport and lodging in the cells also substantially, but with minor exceptions as noted, addressed the rights to counsel multiple times and informed the applicants of additional charges arising out of the ongoing search at the property and provided both applicants with multiple contacts with their counsel of choice at that time.

[217] The evidence seized from the residence and property resulted from a search after weeks of investigation. This is real evidence.

[218] Society’s interest in the adjudication of the merits tends, in these circumstances tends to favour admission of the evidence.

Conclusion

[219] Considering these Grant factors as reasoned, I find that the administration of justice will not be brought into disrepute by the admission of the evidence in this case. The evidence shall not be excluded.

“Justice M.D. McArthur”

Justice M.D. McArthur

Dated: February 9, 2022 - Delivered Orally