His Majesty the King v. David Francis

Court File No.: CR- 21-9-0000577-0000 Date: 2023-02-14 Ontario Superior Court of Justice

Between:

His Majesty the King

– and –

David Francis, Applicant

Counsel:

Jennifer Lynch, for the Crown

Christian Steuart, for David Francis

Heard: April 19, 20, 22, 25, 26, 28, June 22, August 15, September 12, November 30, and December 19, 2022

Rulings on Charter Applications

Garton J.

[1] The accused, David Francis, age 48, was charged with possession of crack cocaine, possession of cocaine for the purpose of trafficking, possession of fentanyl for the purpose of trafficking, and possession of the proceeds of crime. During his trial, Mr. Francis brought applications pursuant to ss. 8, 10(a) and (b), and 24(2) of the Charter to exclude evidence seized during the execution of a search warrant. I dismissed the applications, with reasons to follow. These are my reasons.

[2] The charges arose from the execution of a search warrant at 25 Rathburn Road, which is a detached house in Etobicoke. The warrant also authorized the search of Mr. Francis’ vehicle – a 2006 Infiniti (the “Infiniti”). No evidence was seized during the vehicle search.

[3] The police obtained the telewarrant to search the house and vehicle on June 19, 2020, at 9:00 p.m. By 10:40 p.m., officers from the Toronto Drug Squad (“TDS”) were set up to conduct surveillance in the area of 25 Rathburn. At 10:51 p.m., the Infiniti was observed pulling into the driveway, where it parked. Mr. Francis exited the vehicle and walked to the west side of the house.

[4] Six minutes later, at 10:57 p.m., Mr. Francis returned to his car and drove east on Rathburn. Seven minutes later, at 11:04 p.m., he came back, parked in the driveway, and again walked to the west side of the residence.

[5] On June 20, at 12:44 a.m., members of the Emergency Task Force (“ETF”) moved in on the house to execute the warrant. Mr. Francis, who was in the driveway near his car, was ordered to the ground and handcuffed. A TDS officer, Sgt. Brian Nishikawa, then took custody of him. During a pat-down search, he seized 0.61 grams of crack cocaine from the front left pocket of Mr. Francis’ shorts.

[6] The TDS officers searched the house after the ETF team had entered and “cleared” it (i.e., performed a safety check). Located in the closet of the basement bedroom were 18.72 grams of crack cocaine, 0.79 grams of fentanyl, two scales and packaging material. Also located in the bedroom were Mr. Francis’ wallet containing identification documents and $700, a bag containing over $4,000, and two pieces of mail addressed to “David D. Francis” at 25 Rathburn Road.

[7] As stated, Mr. Francis alleges that his ss. 8, 10(a) and 10(b) Charter rights were violated. I will deal first with the s. 8 application.

A. SECTION 8 OF THE CHARTER: UNREASONABLE SEARCH AND SEIZURE

[8] The information to obtain the warrant (ITO) that was disclosed to the defence was heavily edited in order to protect the identity of the confidential source (“CS”). Crown counsel conceded that based on the redacted ITO, the requirement of reasonable and probable grounds for the issuance of the warrant was not met. Thus, the Crown brought an application to have the court consider the redacted portions of the ITO in accordance with the “step six” procedure set out in R. v. Garofoli, [1990] 2 S.C.R. 1421, at para. 79.

[9] In anticipation of this proceeding, the Crown re-vetted and re-disclosed the ITO to defence counsel. Some redactions were removed. Crown counsel also provided a draft judicial summary in an attempt to disclose the nature of the redacted information while still protecting informer privilege.

[10] In accordance with the step six procedure, I reviewed the draft judicial summary, as well as the unredacted ITO. With the consent of counsel, I held an in camera hearing in the absence of Mr. Francis and his lawyer. I proposed various changes and additions to the draft, which Crown counsel adopted. An amended judicial summary was then provided to defence counsel (Exhibit 4), as well as a further redacted copy of the ITO (Exhibit 5).

[11] The position of the defence was that items in the judicial summary were described too broadly. It was argued that Mr. Francis was therefore not sufficiently aware of the nature of the redacted material and, as a result, was unable to mount a challenge to the warrant and make full answer and defence. Consequently, the court could not consider the unredacted ITO in determining whether there was a breach of his s. 8 rights.

[12] Defence counsel further submitted that even if Mr. Francis were sufficiently aware of the nature of the excised material to enable him to challenge the validity of the warrant, there were insufficient grounds to justify its issuance under s. 487.1 of the Criminal Code. The search therefore violated his s. 8 rights and the items seized ought to be excluded pursuant to s. 24(2) of the Charter.

[13] The following are my reasons for dismissing the application.

The Information to Obtain the Search Warrant

[14] The grounds for issuing the warrant came from information provided by the CS, which is set out in Appendix “D” of the ITO. The police conducted an investigation and were able to corroborate some of the information through database checks and surveillance.

[15] The contents of Appendix “D”, as redacted, are set out below. The excerpts from the judicial summary appear in italics.

APPENDIX “D”

Confidential Source

On [redacted] 2020 (date and month that information was provided: within 30 days of execution of the search warrant) the Confidential Source provided information in relation to a male dealing drugs in the City of Toronto.

Reliability of the Confidential Source

1. The Confidential Source [redacted] (whether or not the CS has any outstanding charges)

2. The Confidential Source [redacted] (whether or not the CS has a criminal record)

3. The Confidential Source [redacted] (whether or not the CS has any convictions for fraud/perjury)

4. The Confidential Source is deeply entrenched in the drug/criminal culture.

5. The Confidential Source is a registered source with the Toronto Police Service, and is known as [redacted] (Police Identifier)

6. No known false information was provided by the Confidential Source.

Motivation of Confidential Source/Track Record of Reliability, and Registration/Carding

1. The Confidential Source provided the information in return for [redacted] (self-interest)

2. The Confidential Source was advised that no benefit would be provided should the information turn out to be misleading or false.

Reliability and Previous Information

This Confidential Source is carded with the Toronto Police Service.

[Redacted] (Details of any arrest(s) or seizure(s) as a result of information provided by the source.)

The information provided by the Confidential Source regarding this investigation is credible and the information provided has been corroborated through investigative checks.

Compelling nature of the Information provided by the confidential source

1. The Confidential Source learned most of the information provided through first-hand observations and knowledge.

2. The Confidential Source has been present for when the individual has conducted illegal activities, such as drug dealing. The Confidential Source provided detailed first-hand information describing the narcotics and concealment used by the individual.

3. The Confidential Source was relatively detailed in all of the information provided.

The information provided by the confidential source

1. On [redacted] (Date and month information was provided by the source, which was within 30 days of the execution of the warrant.)

2. The CS knows a male David.

3. He sells Fentanyl.

4. He [redacted] (First-hand detail about accused’s drug trafficking practices.)

5. The CS buys Fentanyl from him.

6. He is a mid-level dealer.

7. He sells [redacted] (Detail of the scope of the accused’s drug trafficking practices. Does not indicate source of information.)

8. He is a male Black, over 6 feet tall, 240 pounds, in his 40’s.

9. He resides and deals from 25 Rathburn Road, Toronto.

10. It is a detached house with one garage.

11. He drives an older Infiniti car, licence plate CHKR 199.

12. He also goes by the nickname [redacted] (Nickname that the source knows the accused as)

13. [redacted] (Detail about accused’s drug trafficking practices. Does not indicate source of information.)

14. David lives in the house [redacted]. (Personal detail about the accused. Does not indicate source of information.)

15. David [redacted] (Detail about the accused’s drug trafficking practices. Does not indicate source of information.)

16. [Redacted] (Detail about the accused’s drug trafficking practices. Does not indicate source of information)

17. [Redacted] (Detail about the accused’s drug trafficking practices. Does not indicate source of information.)

18. [Redacted] (Personal information about the accused. Does not indicate source of information.)

19. [Redacted] installed cameras on the exterior of the house. (Personal information about the accused. First-hand information.)

20. [Redacted] (Personal information about the accused. Does not indicate source of information.)

21. [Redacted] (First-hand detail about the accused’s drug trafficking practices)

22. [Redacted] (First-hand detail about the accused’s drug trafficking practices)

23. [Redacted] (First-hand detail about the accused’s drug trafficking practices)

24. [Redacted] (First-hand detail about the accused’s drug trafficking practices)

25. [Redacted] (Personal information about the accused. First-hand information.)

26. The CS has been buying drugs from him [Redacted] (First-hand detail about the source’s purchase of drugs from the accused, including duration)

27. [Redacted] (First-hand detail about the source’s purchase of drugs from the accused)

28. [Redacted] (Detail about the accused’s drug trafficking practices. Does not indicate source of information.)

29. He will also drive the Infiniti car to sell drugs.

30. The CS has bought drugs [Redacted] (First-hand detail about the location and frequency of the source’s drug purchases from the accused.)

31. [Redacted] (Detail about the scope of the accused’s drug trafficking practices. Does not indicate source of information.)

32. [Redacted] (First-hand detail about the accused’s drug-trafficking practices.)

33. [Redacted] (Detail about the accused’s drug-trafficking practices. Does not indicate source of information.)

34. The CS has bought drugs from him [redacted] (First-hand detail about the source’s drug purchases from the accused, including location and frequency)

35. His fentanyl is blue in colour.

36. [Redacted] (Information about the fentanyl that the accused sells. Does not indicate source of information)

37. [Redacted] (First-hand detail about the accused’s drug trafficking practices.)

38. The CS last bought drugs from [redacted] (First-hand detail about the source’s most recent purchase of fentanyl from the accused.)

39. The CS [redacted] bought [redacted] Fentanyl [redacted] (First-hand detail about the source’s most recent purchase of fentanyl from the accused)

40. [Redacted] (First-hand detail about the source’s most recent purchase of fentanyl from the accused.)

41. [Redacted] (Detail about the accused’s drug trafficking practices, including packaging used. Does not indicate source of information.)

42. [Redacted] (Detail about the accused’s drug trafficking practices. Does not indicate source of information.)

43. [Redacted] (Detail about the accused’s drug trafficking practices. Does not indicate source of information.)

44. [Redacted] (Detail about the accused’s drug trafficking practices. Does not indicate source of information.)

45. [Redacted] (Unable to summarize)

Corroboration

1. Infiniti M35 licence plate CHKR 199 is registered to David FRANCIS.

2. The vehicle registered to David FRANCIS was found in the driveway of 25 Rathburn Road in Toronto.

3. The CS viewed an intellibook photo (SID# 201606030070) of David and identified the person in the photo to be the same person that sells drugs.

4. The CS [redacted] (Unable to summarize)

5. [Redacted] (Detail about the accused’s drug trafficking practices.)

6. The CS has intimate knowledge of the suspect’s drug dealing methods [redacted] (Personal information about the accused)

7. The CS has been used in the past and has been reliable and always resulted in seizures of drugs

[16] Appendix “E” of the ITO has been redacted. The judicial summary states that the criminal record(s) of the CS, if any, was disclosed in Appendix “E.”

[17] Appendix “C” of the ITO includes the Affiant’s “Grounds for Belief.” Through investigation, database checks, and physical surveillance, the police confirmed a number of facts that substantiated the reliability of the CS’s information, including Mr. Francis’ name, age, the car that he drives, his general physical description, and the address of 25 Rathburn Road.

[18] Detective Constable Bhogal states in Appendix “C” that he performed a Versadex check on the licence plate number CHKR 199 on June 19, 2020. The plate was registered to a green Infiniti M35. The registered owner of the vehicle was listed as David Francis, with a date of birth of May 22, 1974. The address listed for Mr. Francis was 1-2593 Lake Shore Boulevard West, Etobicoke. The Versadex check also revealed that on March 19, 2019, Mr. Francis was stopped and charged with speeding while driving the Infiniti.

[19] A Versadex check on the name “David Francis” with the date of birth of May 22, 1974, showed that the two most recent occurrences involved Mr. Francis being stopped in a vehicle. The third most recent occurrence, which was dated December 17, 2017, was at the address of 11 Bergamot Avenue for a compliance check. Mr. Francis was on firearm and drug-related charges from 2016 when he was found in possession of cocaine and a handgun.

[20] Detective Constable Bhogal conducted a CPIC check and learned that Mr. Francis had: (i) a criminal record, which includes five drug convictions, (ii) a firearms prohibition stemming from a conviction for possession for the purpose of trafficking in a controlled substance, and (iii) no outstanding charges.

[21] Mr. Francis’ criminal record is set out in full in Appendix “C”. The convictions for drug-related offences include the following:

April 20, 1993: Possession of a narcotic for the purpose of trafficking (2 counts);

February 11, 2005: Possession of a Schedule I substance;

March 16, 2005: Possession of a Schedule I substance; and

March 3, 2006: Possession of a scheduled substance for the purpose of trafficking. (This is the last entry on Mr. Francis’ criminal record.)

[22] Detective Constable Bhogal showed the CS the last booking photograph of Mr. Francis, which was taken in 2016. The CS confirmed that the male in the photograph was the “David” who resides and deals narcotics out of 25 Rathburn Road.

[23] Under the heading “Surveillance” in Appendix “C,” Det. Cst. Bhogal describes the results of the physical surveillance of 25 Rathburn conducted by Det. Cst. Joshi on Friday, June 19, 2020, at 2:14 p.m. Joshi observed an older model Infiniti motor vehicle with licence plate CHKR 199 parked in the driveway of the house. He also observed that 25 Rathburn was a detached house and that a camera had been installed on top of the garage. No persons were observed coming or going from the house.

1. Whether the judicial summary and other information disclosed to the defence are sufficient to protect the accused’s right to make full answer and defence

[24] Mr. Steuart, on behalf of Mr. Francis, submits that the test in step six has not been met as the judicial summary describes the redacted material too broadly. As a result, the defence is not able to adequately address the factors relevant to the test for sufficiency of an ITO based on an informer’s tip, as set out in R. v. Debot, [1989] 2 S.C.R. 1140, 52 C.C.C. (3d) 193 – that is, whether the tip is compelling, whether the informer is credible, and whether the tip has been corroborated. Consequently, the court cannot consider the unredacted ITO in determining whether there has been a breach of Mr. Francis’ s. 8 Charter rights.

[25] In R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, at para. 42, Rouleau J.A., in speaking for the Court, emphasized that the objective in applying the sixth step is to balance conflicting interests. On the one hand are the interests of law enforcement and the protection of informers, and on the other is the accused’s right to make full answer and defence.

[26] A judge can accede to a Crown request to proceed to step six as long as the accused is “sufficiently aware of the nature of the excised material to challenge it in argument or by evidence.” Put another way, the judicial summary of the redacted material provided to the accused, combined with the redacted ITO, must be enough to ensure the accused is in a position to exercise his or her right to make full answer and defence. Only then can step six be employed. However, in assessing the summary’s sufficiency, account is also to be taken of the fact that the accused has received disclosure; that he or she can, with leave, cross-examine the affiant; and that he or she can lead evidence on the application. In addition, the right to make full answer and defence is to be assessed by taking into account that a Garofoli hearing is an admissibility hearing, not a trial of the merits: Crevier, at para. 43.

[27] At paras. 70-72 of Crevier, Rouleau J.A. noted that although it could be argued that it is impossible for an accused to meaningfully challenge whether the three factors set out in Debot have been met if the accused does not have access to the redacted information, step six of Garofoli clearly contemplates this situation. The only caveat is that the accused must be “sufficiently aware of the nature of the excised material to challenge it in argument or by evidence.” He observed that there are two important aspects of this caveat. One is that the accused need be aware of only the nature of the redacted details, not the details themselves. The other is that the accused’s awareness, gained through the judicial summary and other available information, must be sufficient to allow the accused to mount a challenge of the redacted details both in argument and by evidence.

[28] Rouleau J.A. found, at para. 77, that

[d]espite not having access to the redacted information, the accused, using a well-crafted judicial summary as well as the disclosure received, the redacted ITO, and any cross-examination of the affiant and evidence tendered, will nonetheless be in a position to mount a sub-facial attack and challenge the adequacy of the ITO. The accused can, for example, highlight areas of omission for the reviewing court, attack the steps (or lack thereof) taken to corroborate the information received from the informer, and make arguments in the alternative and on general principles of informer reliability.

[29] What is contained in a summary will vary from case to case. In Crevier, at para. 84, Rouleau J.A. lists a number of items as illustrative of what a judicial summary may contain. He does not suggest that failure to include one or more of these points would necessarily make the summary inadequate. The list, which is neither prescriptive nor exhaustive, is as follows:

• The source of the informer’s information (first-hand, hearsay, and if hearsay, the source of that hearsay)

The source of the information is relevant to the credibility and reliability of the CS.

In the present case, the judicial summary indicates in each instance whether the information provided by the CS was obtained from first-hand observations or whether no indication of the source of the information was provided. There are 17 instances where the information is described as having been obtained first-hand, and 16 instances where it is noted that there is no indication of the source of the information.

The first-hand information includes personal information about Mr. Francis, including his nickname and his drug-trafficking practices. It also includes details regarding the CS’s drug purchases from him, how long the CS had been buying drugs from him, the frequency of those purchases, and where and when the last purchase was made.

Crown counsel submits that the 17 pieces of first-hand information are compelling. On the other hand, defence counsel is able to point to 16 pieces of information where there is no indication as to the source, which makes that information less compelling.

• The informer’s relationship with/to the accused and how they first came into contact

The redacted ITO indicates that the CS is a buyer and that he knows the accused as “David” and by nickname. The CS provided other personal information about Mr. Francis, including his age and physical description.

The judicial summary also indicates that the CS provided details about the accused’s drug-trafficking practices. This effectively summarized the nature of the CS’s relationship with/to Mr. Francis, without specifically naming that relationship which would, in almost every case, lead to the source being identified.

Defence counsel noted that although some items in the ITO refer to various aspects of drug-trafficking practices, such as packaging, location, frequency, duration, and the timing of the purchases, there are a number of items that make no reference to any particular aspect of drug-trafficking. However, in these instances, defence counsel is nevertheless able to address the Debot factors by making hypothetical or alternative arguments. For example, it may be argued that general practices of drug trafficking that would be followed by most drug traffickers, as opposed to practices that are unique to the accused, would do little to bolster the reliability or credibility of the CS.

• The length of time the informer has known the accused and the frequency of contact between them

Items 26, 30, and 34 of the judicial summary refer to the length of time that the CS has been buying drugs from Mr. Francis. These items also refer to the location and frequency of the purchases.

Items 38-40 refer to first-hand details regarding the CS’s most recent purchase, including when and where that purchase took place.

Item 41 refers to the accused’s drug trafficking practices, including the packaging used.

Defence counsel noted that although the judicial summary indicates that the CS provided the information within 30 days of the execution of the warrant, there is no indication as to whether the CS’s last purchase was made within the same time frame. Nevertheless, he was able to make alternative arguments on this issue based on general principles of informer reliability; for example, he argued that a purchase made by the CS within one or two months of providing the information would be more compelling information than if it took place a year or more ago.

• Whether the informer has previously provided information to police

Mr. Francis is aware that the CS is carded and registered with the Toronto Police Service. The judicial summary states that the CS has provided information in the past and has proved to be reliable.

• Whether previous information provided (if any) has led to arrests, seizures, or convictions

The information with respect to arrests and seizures made as a result of information provided by the CS was before the issuing justice. A portion of the ITO that has been unredacted states that the seizures related to drugs: “The CS has been used in the past and has been reliable and always resulted in seizures of drugs.”

• Whether past information provided by the informer has ever been proven unreliable or false

The ITO, under the heading, “Reliability of the Confidential Source” states: “No known false information was provided by the Confidential Source.”

Defence counsel submits that more detail ought to have been disclosed about the nature of the CS’s reliability, such as how many times and how recently the CS has been used. However, these matters can be addressed by the defence on the basis of alternative/hypothetical fact situations.

• Whether the informer has a criminal record and, if yes, whether the unredacted ITO included details of the convictions or charges or whether a copy of the criminal record was appended

• Whether the informer has convictions for offences of dishonesty or against the administration of justice

The judicial summary indicates that the issuing justice had before him information as to whether or not the CS has outstanding charges, a criminal record, or any convictions for fraud or perjury.

Defence counsel is able to make submissions in regard to the CS’s credibility based on alternative arguments or hypotheticals with respect to these matters. Outstanding charges, a criminal record, convictions for offences of dishonesty, such as fraud or perjury, or offences against the administration of justice, would all negatively affect the CS’s credibility.

• The informer’s motivation for speaking to police, including whether consideration was sought or arranged

The judicial summary describes the CS’s motivation as “self-interest.”

Defence counsel submits that the nature of the benefit should be disclosed – that is, whether it was monetary or some sort of legal benefit, such as the withdrawal of charges or a reduction in sentence. However, the defence is able to address issues pertaining to the CS’s motivation on the basis of these potential alternatives, including the submission that the CS ought not to be trusted as the CS was obviously not acting as a Good Samaritan.

• Whether the informer was instructed on the penalties for giving false information

The CS was advised that no benefit would be provided should the information turn out to be misleading or false. However, there is no mention of the CS having been advised of the penalties for giving false information. The defence is in a position to argue that the absence of such a warning reflects negatively on the CS’s credibility.

• Whether descriptions provided by the informer match the accused or the target location

The CS’s description of Mr. Francis was not redacted from the ITO. The CS provided a physical description of Mr. Francis and gave information about the address at 25 Rathburn Road. The description of Mr. Francis matched a photograph of him that the police had on file. The CS identified Mr. Francis from that photograph. The CS described Mr. Francis’ car and provided the licence plate number.

• The degree of detail of the information that the informer provided to police

Under the heading, “Compelling nature of the information provided by the confidential source”, the affiant states that:

i) the CS learned most of the information provided through first-hand observations and knowledge;

ii) the CS has been present when Mr. Francis has conducted illegal activities, such as drug dealing, and provided first-hand information describing narcotics and concealment used by Mr. Francis; and

iii) the CS was relatively detailed in all of the information provided.

There were 45 pieces of information contained in the ITO and judicial summary. With the exception of Item 45, the summary describes the nature of each piece of information, such as whether it related to drug-trafficking practices, purchases, packaging, the location and frequency of the purchases, and the duration of purchases. The CS stated that Mr. Francis was a mid-level dealer who sold Fentanyl and described it as blue in colour.

• The recency or timing of the information that the informer provided to police

The judicial summary states that the CS provided the information to the police within 30 days of the execution of the search warrant. The defence is in a position to make arguments, in the alternative, as to whether that information is compelling.

There is no indication in the judicial summary as to whether the CS’s last purchase of drugs from Mr. Francis was within that 30-day time-frame. As previously stated, however, defence counsel is able to make alternative arguments in this regard, noting that a purchase made within one or two months would be more compelling than information about a purchase made a year ago.

• Any discrepancies between the information of one informer and another

There was only one CS involved in this case.

• Any aspects of the informer’s information that are contradicted by police investigation or otherwise detract from its credibility

There are no contradictions.

• Any errors or inaccuracies that exist in the ITO, and their nature (e.g., typographical errors)

In Appendix “B” of the ITO, Mr. Francis is incorrectly referred to as “David Grant.”

[30] I note that Item 45 under the heading, “Information provided by the confidential informant,” and Item 4, under the heading “Corroboration”, have been described in the judicial summary as “Unable to summarize.” Those items must be disregarded when assessing the validity of the warrant: Crevier, at para. 87. In addition, those items in which there is no indication of the source of the information must be given less weight.

[31] Taking into account the totality of the material provided to the defence in this case, and using the above-listed items as a guide in assessing the adequacy of the judicial summary, I am satisfied that Mr. Francis is sufficiently aware of the nature of the excised material to enable him to challenge the warrant’s validity in argument or by evidence as envisaged in Garofoli. In other words, I am satisfied that Mr. Francis is in a position to exercise his right to make full answer and defence. In coming to this conclusion, I bear in mind that this hearing is an admissibility hearing, not a trial of the merits. Mr. Francis’ right to make full answer and defence must be viewed in this context and balanced against the need to maintain informer privilege. In light of this conclusion, I will consider the unedited ITO in determining whether the warrant could have issued.

2. Whether there was a basis upon which the issuing justice could have found that reasonable and probable grounds existed to issue the warrant

[32] The standard of review on a s. 8 Charter application where a search warrant has been issued at first instance is deferential. The warrant is presumed to be valid, and the applicant bears the onus of demonstrating its invalidity.

[33] The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere: Garofoli, at para. 56.

[34] The warrant must not be set aside unless the reviewing judge is satisfied based on the entirety of the material presented that there was no basis to grant the authorization. Where there are reasonable grounds to believe – constitutionally defined as a credibly-based probability – that an offence has been committed and that there is evidence to be found at the place to be searched, the warrant must be upheld: Crevier, at para. 66.

[35] The test for sufficiency of an ITO that is based on an informer’s tip is dependent upon whether the tip is compelling, whether the informer is credible, and whether the tip has been confirmed by independent police investigation. Each of these factors does not form a separate test. Rather, the totality of the circumstances must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two: Debot, at p. 1168.

[36] As observed by Code J. in Greaves-Bissesarsingh, 2014 ONSC 4900, 314 C.C.C. (3d) 493, at para. 35,

the term “compelling” refers to considerations that relate to the reliability of the informer’s tip such as the degree of detail provided and the informer’s means of knowledge, that is, whether the informer made first-hand observations or merely relied on second-hand hearsay, rumour, or gossip. The term “credibility” would appear to capture considerations such as the informer’s motivation, criminal antecedents, and any past history of providing reliable information to the police. The term “corroboration” refers to any supporting information uncovered by the police investigation.

[37] In R. v. Caissey 2007 ABCA 380, 227 C.C.C. (3d) 322, at paras. 12-25, aff’d 2008 SCC 65, [2008] 3 S.C.R. 451, 237 C.C.C. (3d) 289 (S.C.C.), the Court made it clear that it is not necessary for the police to corroborate the core criminality alleged by the informant. See also R. v. Rocha (2012) ONCA 707, 2012 ONCA 707, 292 C.C.C. (3d) 325, at paras. 22-25.

(i) Was the information compelling?

[38] The information given by the CS is very compelling. It is highly detailed and much of it comes from first-hand observations and knowledge. It is sufficiently recent.

[39] The CS provided numerous first-hand details about Mr. Francis’ drug-trafficking practices, including information with respect to location, frequency, amount(s) purchased, the packaging used, and methods of concealment. The majority of the drug-trafficking practices described by the CS are not general in nature, but highly specific. The CS described Mr. Francis as a mid-level dealer.

[40] The CS’s first-hand information included the CS’s most recent purchase of fentanyl from Mr. Francis. The time of that purchase is provided in the unredacted ITO. The CS described the colour of the drug as blue, which is a detail that would not generally be known.

[41] The information provided by the CS shows that the CS knows Mr. Francis well. The tip included the length of time that the CS has been a customer of Mr. Francis. The CS provided the name “David” as well as David’s nickname, which would not necessarily be well-known on the street. The tip included a specific address – 25 Rathburn Road – where David lives and from where he deals his drugs. The CS described the residence at that address as a detached house and that there was a camera installed on the exterior of the house, which was later corroborated by the police.

[42] Defence counsel submits that Mr. Francis’ biographical information, such as his address, would have been known to Mr. Francis’ friends and family members and could have been obtained via social media. Although Mr. Francis’ friends and family members may have known of the address of 25 Rathburn Road, there is no evidence of that information being available on social media.

[43] The CS provided detailed information about Mr. Francis’ car, including the licence plate number. The CS described it as an older-model Infiniti.

[44] The CS provided a detailed physical description of Mr. Francis. The CS described him as a Black male, in his forties, over six feet tall, and weighing 240 pounds. The CS also identified Mr. Francis from his most recent booking photograph, which was taken in 2016.

[45] A further factor that makes the information compelling is the recency of the information. The information provided to the police by the CS was within 30 days of the search warrant being executed. The actual date of the CS’s most recent purchase of fentanyl from Mr. Francis is contained in the unredacted ITO.

[46] In summary, the information provided by the CS is extremely compelling and comprises the main strength of the ITO.

(ii) Was the CS credible?

[47] The CS is registered with the Toronto Police Service and is “carded” as such. The CS is a proven source, having provided information to the police in the past that led to arrests and seizures, all relating to drugs. The ITO makes no mention as to whether there were convictions in these cases. It does, however, set out the details with respect to the identity of the individuals who were arrested, and the nature and quantities of the drugs seized. No known false information has been provided by the CS. These matters speak to the credibility of the CS.

[48] The judicial summary does not reveal whether the CS has a criminal record or has current outstanding charges. Defence counsel was able to make alternative submissions when dealing with this Debot criterion. In assessing those submissions, I have considered the relevant information contained in the unredacted ITO. The issuing justice had before him all the information relating to this criterion.

[49] The motivation of the CS in speaking to the police is contained in the unredacted ITO and is described as “self-interest” in the judicial summary. The CS was told that no benefit would be provided should the information turn out to be misleading or false. There is no indication, however, as to whether the CS was advised of the penalties for giving false information. The ITO also indicates that the CS was deeply entrenched in the drug/criminal culture. This factor, plus the “self-interest” motivation in providing the information negatively affects the CS’s “credibility.” Despite these concerns, there remains a solid basis on which the issuing justice could find that the CS’s information was credible.

(iii) Corroboration of the CS’s information

[50] The corroboration placed before the issuing justice was limited. There was nothing to corroborate that Mr. Francis was trafficking in drugs. However, as observed earlier, corroboration of a criminal particular of the offence is not necessary.

[51] The corroboration of the CS’s information consisted of the following:

• The CS told the police that Mr. Francis resided at and deals his drugs from 25 Rathburn Road. The CS described the house as detached and with one garage. The CS also stated that a camera had been mounted on the exterior of the house.

Detective Constable Joshi confirmed the CS’s description of the house and the presence of the camera during the surveillance he conducted on June 19, 2020. The presence of the camera, which was on top of the garage, limited the police in terms of the amount of surveillance that they could conduct on the residence.

• The CS described the vehicle that Mr. Francis drove as an older model Infiniti and provided the licence plate number. The Infiniti was parked in the driveway at 25 Rathburn during Det. Cst. Joshi’s surveillance of the house on June 19. Mr. Francis was not observed going to or coming from 25 Rathburn prior to the issuance of the warrant, but the presence of his vehicle in the driveway provided a link between him and that address.

• The CS provided an accurate description of Mr. Francis, referring to him as “David.” The CS identified Mr. Francis from an Intellibook photograph. The CS stated that David was in his forties. Mr. Francis was 45 years old at the time that the ITO was drafted.

• The police were able to confirm that the Infiniti was registered to “David Francis.” A further link between Mr. Francis and the Infiniti was the fact that he was stopped for speeding while driving the Infiniti on March 19, 2019.

• The police investigation confirmed that Mr. Francis had, in the past, possessed drugs for the purpose of trafficking. The ITO set out his entire criminal record, which included five previous drug-related convictions:

April 20, 1993: Possession of a narcotic for the purpose of trafficking (2 counts);

February 11, 2005: Possession of a Schedule I substance;

March 16, 2005: Possession of a Schedule I substance; and

March 3, 2006: Possession of a scheduled substance for the purpose of trafficking.

An accused’s criminal record may provide some independent confirmation of an informer’s information. The cogency of the criminal record depends on its similarity to the criminal activity alleged by the informer and the age of the record: See R. v. MacDonald, 2012 ONCA 244, at paras. 22-24; and R. v. Iraheta, 2020 ONCA 766, at para. 24.

In the present case, Mr. Francis’ criminal record, which includes three prior convictions for possession of drugs for the purpose of trafficking, shows that he has had access to drugs in the past. Although Mr. Francis’ criminal antecedents provide some corroboration of the CS’s information, the weight to be attributed to the record is limited by the fact that it is dated. The last conviction for possession for the purpose of trafficking was 14 years prior to Mr. Francis’ arrest on the present offences.

Conclusion

[52] As stated in Debot, each of the factors to be considered in determining whether there were reasonable and probable grounds for the issuance of the warrant – that is, whether the CS’s information was compelling, credible, and corroborated – do not form a separate test. Rather, it is the “totality of the circumstances” that must meet the standard of reasonableness. That standard has been met in this case. The information was very compelling. There was information supporting the credibility of the CS. There was some corroboration, albeit limited.

[53] Counsel for Mr. Francis submits that even if the warrant could have been issued for the Infiniti, it could not have been issued for 25 Rathburn Road. He notes that a Versadex check on the Infiniti on June 19, 2020 listed Mr. Francis’ address as 1-2593 Lake Shore Boulevard West in Etobicoke. A Versadex check also showed that on December 17, 2017, a compliance check of Mr. Francis was conducted at 11 Bergamot Avenue regarding outstanding charges that he was facing from 2016. Mr. Steuart submits that the only link between Mr. Francis and 25 Rathburn was the information from the CS that Mr. Francis was residing and dealing his drugs from that address, and the presence of Mr. Francis’ car in the driveway of 25 Rathburn on the afternoon of June 19, 2020. He submits that these circumstances were insufficient to create the necessary nexus between Mr. Francis and that location, and that there were insufficient grounds to believe that fentanyl and evidence of drug trafficking would be found in a search of the house.

[54] In the ITO, the CS expressly connects Mr. Francis’ drug trafficking to 25 Rathburn Road: “He resides and deals from 25 Rathburn Road, Toronto” In the unredacted ITO, the CS provides first-hand information in regard to this assertion which, along with the presence of the Infiniti in the driveway on June 19, 2020, clearly provided a basis on which the issuing justice could conclude that there was a reasonable probability that fentanyl and evidence of drug trafficking would be found in a search of the house.

[55] In conclusion, the totality of the circumstances supported the issuance of the search warrant for both the house and the car. The issuing justice was presented with information of credibly-based probability sufficient to permit a finding that the statutory prerequisites were established. There was no violation of Mr. Francis’ s. 8 Charter rights.

[56] In the event that I am wrong in this finding, I will consider whether the drugs, money and other items seized by the police should be admitted under s. 24(2) of the Charter after dealing with the ss. 10(a) and (b) Charter issues.

B. SECTIONS 10(a) AND 10(b) OF THE CHARTER

[57] Sections 10(a) and (b) of the Charter state as follows:

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.

[58] Mr. Francis alleges that Sgt. Nishikawa did not advise him promptly of the reason for his arrest, thereby violating his s. 10(a) Charter rights.

[59] Mr. Francis also alleges that his s. 10(b) Charter rights were breached when Sgt. Nishikawa conducted a pat-down search prior to informing him of his right to retain and instruct counsel.

[60] Finally, Mr. Francis alleges that his s. 10(b) Charter right to retain and instruct counsel without delay was violated by virtue of the delay between his arrest and the time that he was able to speak to his lawyer at the police station.

[61] As a result of these violations, Mr. Francis argues that the items seized by the police, including the drugs and money, ought to be excluded pursuant to s. 24(2) of the Charter.

1. Section 10(a) of the Charter: Whether Mr. Francis was informed promptly of the reasons for his arrest

[62] As stated earlier, after obtaining the search warrant, the team of TDS officers set up surveillance on 25 Rathburn Road at 10:40 p.m. on June 19, 2020.

[63] At 10:51 p.m., Sgt. Nishikawa observed Mr. Francis’ Infiniti pull into the driveway and park. Mr. Francis exited the vehicle and walked to the west side of the house.

[64] Six minutes later, at 10:57 p.m., Mr. Francis returned to his car and drove away. Seven minutes later, at 11:04 p.m., he came back, parked in the driveway, and again walked to the west side of the house.

[65] A 12:44 a.m., on June 20, 2020, the ETF team approached 25 Rathburn. Mr. Francis, who was in the driveway near his car at that time, was ordered to the ground and handcuffed by an ETF officer. Sergeant Nishikawa reached the scene within seconds, at which point he took custody of Mr. Francis. Sergeant Nishikawa testified that he immediately advised him that he was under arrest for possession of a Schedule I substance for the purpose of trafficking. He then conducted a pat-down search for “weapons and evidence.”

[66] The pat-down search was presumably very brief as Mr. Francis was only wearing shorts and a tank top. Sergeant Nishikawa checked the waistband of the shorts and then the pockets. After feeling a hard object about the size of a dime in the front left pocket, he reached into the pocket and removed a clear torn plastic bag containing crack cocaine. He immediately informed Mr. Francis that he was also under arrest for possession of crack cocaine and advised him of his rights to counsel, which he read from a card in his wallet. Mr. Francis stated that he understood his rights and wanted to speak to a lawyer. Sergeant Nishikawa did not recall if Mr. Francis gave him the name of a specific lawyer at that time. He explained to Mr. Francis that a search warrant pursuant to the Controlled Drugs and Substances Act had been obtained to search his vehicle and the house.

[67] In cross-examination, Sgt. Nishikawa agreed that it appears from the way in which he wrote his notes that he did not inform Mr. Francis that he was under arrest for possession of a Schedule 1 drug for the purpose of trafficking until after the pat-down search. His notation with respect to advising Mr. Francis of the reason for his arrest was made alongside his notation about locating cocaine in Mr. Francis’ pocket. Sergeant Nishikawa testified that he normally records events in chronological order. However, he insisted that in this case he told Mr. Francis the reason for his arrest as soon as he reached the location where the ETF officer had ordered Mr. Francis to the ground. Sergeant Nishikawa testified that he had a clear recollection of doing this. He testified that he reached Mr. Francis within seconds and that “as soon as I got there when he was handcuffed, I told him that he was under arrest right away … and the reason was for possession for the purpose of trafficking in a Schedule I substance.”

[68] Mr. Francis did not testify on the voir dire. He was, of course, under no obligation to do so.

[69] Having carefully considered Sgt. Nishikawa’s testimony, I accept his evidence that he told Mr. Francis that he was under arrest for possession of a Schedule I drug for the purpose of trafficking as soon as he arrived at Mr. Francis’ location. Given this finding, Mr. Francis was informed promptly of the reason for his arrest. Consequently, there was no infringement of his s. 10(a) Charter rights.

2. Section 10(b) of the Charter: Delay in providing the informational component of the right to counsel

[70] Mr. Francis alleges that his s. 10(b) Charter rights were infringed as he was not informed of his rights to counsel until after the pat-down search. The search, which took a few seconds, consisted of Sgt. Nishikawa patting down Mr. Francis’ waistband and the pockets of his shorts, and removing the small hard object that he felt in the front left pocket. Immediately thereafter, he advised Mr. Francis that he was under arrest for possession of cocaine and read him his rights to counsel.

[71] Defence counsel submits that Sgt. Nishikawa’s delay in informing Mr. Francis of his rights to counsel by first conducting the pat-down search offended the immediacy requirement in s. 10(b), as discussed in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 37-42. However, the Court, at paras. 2 and 42, also held that public and officer safety may impact both the informational and implementational obligations in s. 10(b): “The immediacy of this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter.” See also R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at paras. 60-61; and R. v. McGuffie, 2016 ONCA 365, 336 C.C.C. (3d) 486, at paras. 40-42.

[72] There were clearly officer safety concerns in this case that justified the brief delay in informing Mr. Francis of his rights to counsel while Sgt. Nishikawa conducted the pat-down search for weapons and other items that could endanger officer safety. The presence of the ETF, which was called in to execute the arrest, indicates that Sgt. Nishikawa’s concerns in regard to safety were justified. I note that information contained in the ITO indicates that in 2017, Mr. Francis was stopped for a compliance check in regard to firearm and drug-related charges from 2016, when he was found in possession of a handgun and cocaine. The redacted information in the ITO lends further support for concerns about officer and public safety. I also note that Mr. Francis’ criminal record, although very dated, includes convictions for violent offences, both as a youth and as an adult. There are two convictions for assault with a weapon and a conviction for uttering threats in 1988, a conviction for assaulting a peace officer in 1992, and a conviction for robbery and possession of a weapon in 1993.

[73] Virtually all the delay caused by the pat-down, which was carried out in a few seconds, was justified by Sgt. Nishikawa’s concern for officer safety. Only a second or two can be attributed to Sgt. Nishikawa’s reaching into Mr. Francis’ pocket and pulling out the crack cocaine, which he apparently perceived to be evidence as opposed to a weapon or an object that raised concerns for officer safety:

Q. Okay. When you conducted the pat-down search, did you feel anything that felt like a weapon or could be an issue for officer safety?

A. No.

Q. No. Okay – and then – but then you reached into Mr. Francis’ front left pocket and that’s where you located the crack cocaine?

A. Yes.

[74] The governing principles that apply to a frisk or pat-down search incident to arrest were set out in Cloutier v. Langlois, [1990] 1 S.C.R. 158. At p.185, the Court described the search as a “relatively non-intrusive procedure: outside clothing is patted down to determine whether there is anything on the person of the arrested individual. Pockets may be examined but the clothing is not removed and no physical force is applied. The duration of the search is only a few seconds.” At p. 186, the Court also stated that the search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be a threat to the safety of the police, the accused, or the public, or that may facilitate escape or act as evidence against the accused.

[75] Clearly, had Sgt. Nishikawa advised Mr. Francis of his rights to counsel prior to conducting the pat-down search, there would be no basis to allege that he violated Mr. Francis’ Charter rights by reaching into his pocket and seizing the object inside it. Sgt. Nishikawa knew that the search warrant was in relation to the allegation that Mr. Francis was trafficking fentanyl out of 25 Rathburn Road. The object in his pocket was potentially evidence of that offence. However, the position of the defence is that since the pat-down was conducted before Sgt. Nishikawa advised Mr. Francis of his rights to counsel, the only permissible delay in advising him of those rights, pursuant to Suberu, must be in relation to concern for officer or public safety. He therefore submits that the one- or two-second delay caused by the officer seizing potential evidence from the pocket constituted a breach of Mr. Francis’ s. 10(b) rights.

[76] I find that there was no s. 10(b) violation as a result of this momentary delay. As stated by O’Marra J. in R. v. Fisk, 2020 ONCJ 88, at para. 51, the “right to counsel is to be provided immediately, not instantaneously.” In Fisk, there was a four-minute delay between the time that the accused was arrested and the time that he was given his rights to counsel while seated in a scout car. O’Marra J. went on to state that “police officers are not required to handcuff the accused with one hand and with the other hand read the right to counsel from their notebooks.”

[77] In the present case, after conducting the pat-down search for safety reasons, which was clearly justified, and then seizing the crack cocaine, Sgt. Nishikawa immediately told Mr. Francis that he was also under arrest for possession of cocaine and read him his rights to counsel from a card in his wallet. At no time during or after the pat-down search did he attempt to elicit any incriminating statements from Mr. Francis or question him about the object in his pocket. Based on the information contained in the ITO, that object could well have been fentanyl – a drug described by the expert witness as extremely dangerous.

[78] Given the context in which the momentary delay in advising Mr. Francis of his rights to counsel occurred, I find that the delay did not run afoul of the immediacy requirement set out in Suberu. As a result, there was no breach of the informational component of Mr. Francis’ s. 10(b) rights. However, even if I am wrong and there was a violation, it was inconsequential. The delay was no more than a second or two, and the police at no time questioned Mr. Francis about the cocaine in his pocket or the drugs and other items found in the basement – factors that are relevant to the s.24(2) analysis.

3. Section 10(b) of the Charter: The delay in implementing the right to counsel

[79] Mr. Francis was arrested at 12:44 a.m. Following the pat-down, Sgt. Nishikawa advised him of his rights to counsel, and waited outside with him for a few minutes while the ETF officers cleared the house.

[80] According to the evidence of Sergeant Greaves, who was also waiting outside, the house was cleared at 12:51 a.m. Sergeant Nishikawa then took Mr. Francis into the living room, where the two people who were in the house at the time of the search were also being detained. After leaving Mr. Francis in the custody of the officer in charge of those individuals, Sgt. Nishikawa commenced his search of the Infiniti, followed by a search of two bedrooms and a washroom on the main floor.

[81] There were no scout cars on scene to transport Mr. Francis to 11 Division immediately following his arrest. The TDS officers had arrived in unmarked vehicles as they were conducting surveillance in the area from 10:40 p.m. until 12:44 a.m., when Mr. Francis was arrested. Unlike scout cars, the unmarked vehicles were not equipped with an in-car camera system (“ICCS”).

[82] Sergeant Nishikawa testified that he took Mr. Francis into the house for safety reasons. Mr. Francis was a large man – he was 6 feet 2 inches tall, had a heavy build, and weighed 250 pounds. There were only five TDS officers on scene. Three people, including Mr. Francis, were detained. In these circumstances, it was safer and more efficient to have all the detainees in one room and watched by one officer while the remaining four officers carried out the search.

[83] Sergeant Nishikawa noted that if the crack cocaine found in Mr. Francis’ pocket turned out to be the only drug seized, there would have been no need for a scout car as Mr. Francis would most likely have been released at the scene on a Form 10 (Promise to Appear) rather than being transported to the police station. As he explained, “For that small amount we try to either release them on scene, whether it’s no charges laid, or through, like a release form, so they don’t have to go in (to the station).” As it turned out, however, substantially more drugs were found in the basement.

[84] Sergeant Nishikawa testified that he did not facilitate a call by Mr. Francis to his lawyer while they were in the house as it would have been impossible to provide him with privacy during the call. There were also safety concerns. Mr. Francis could not be left alone in a room because he could escape, tamper with evidence, or have access to weapons.

[85] Two uniformed officers, Police Constables Corba and Hastick, arrived later on to transport Mr. Francis to 11 Division. Sgt. Nishikawa testified that when an accused is to be transported to a police station during the night, it is standard practice to dispatch two officers for safety reasons.

[86] The ICAD report, which was entered as an exhibit, indicates that efforts were made to send a scout car to 25 Rathburn at 12:50 a.m. The entry at that time states: “Unit: 22E02 Dispatched (11581) 25 RATHBURN RD ET.” However, the entry four seconds later states: “Unit 22E02 Available on Radio (11581) Disposition: Not Available.”

[87] According to the ICAD report and an agreed statement of fact, a call was made at 12:54 a.m. for the next available scout car to be sent to 25 Rathburn Road. This was ten minutes after Mr. Francis’ arrest and only three minutes after the ETF team had finished clearing the house. Efforts were made to comply with this request within two minutes. However, a scout car was still not available: the entry at 12:56 a.m. states: “Unit CRT17 Available on Radio (99936,90222) Disposition: Not Available.”

[88] A further attempt was made to send a scout car to the scene at 1:11 a.m. However, for some reason, that “event” was “cleared” at 1:24 a.m.

[89] Both Officers Corba and Hastick were dispatched to 25 Rathburn at 1:29 a.m. Constable Corba arrived at 1:34 a.m. He testified that Constable Hastick arrived in a separate vehicle at approximately the same time. Both scout cars were equipped with an ICCS.

[90] Upon his arrival, Cst. Corba spoke to Det. Cst. Bhogal, who briefed him with respect to the execution of the warrant, Mr. Francis’ name and date of birth, and the charges that Mr. Francis was facing. He also gave him the name of Mr. Francis’ lawyer – “Murray Kramer.”

[91] At 1:36 a.m., Det. Cst. Bhogal turned the custody of Mr. Francis over to Cst. Corba, who escorted Mr. Francis outside and placed him in the rear seat of Cst. Hastick’s scout car.

[92] At 1:47 a.m., Cst. Corba, while leaning into the car, read to Mr. Francis his rights to counsel and cautioned him. He was unaware as to whether Mr. Francis had already been given his rights to counsel, but testified that he would have advised him of those rights in any event in order to capture it on the ICCS. He testified that this is his usual practice. Mr. Francis confirmed for him that his lawyer was Murray Kramer.

[93] Constable Corba testified that it was not practical to facilitate Mr. Francis’ call to counsel while he was in the scout car because of privacy concerns: his conversation with the lawyer would have been recorded by the ICCS.

[94] Constable Hastick drove Mr. Francis to 11 Division. Constable Corba followed in his own vehicle. They arrived there ten minutes later, at 2:01 a.m., and waited a few minutes while the booking of another accused was completed.

[95] During the booking process, which was videotaped, Cst. Corba advised the acting Staff Sergeant that Mr. Francis wished to speak to his own lawyer, Murray Kramer. Mr. Francis made no comment and gave no correction with respect to his lawyer’s name, which, as outlined below, turned out not to be “Murray Kramer”, but rather “Mary Cremer.”

[96] After the booking process was complete, Officers Corba and Hastick conducted a level 3 search of Mr. Francis, which took place from 2:19 a.m. to 2:26 a.m. Mr. Francis’ shoe laces and earrings were removed. Nothing else was seized. After placing him in an interview room, Cst. Corba attended at the Criminal Investigation Bureau (CIB), where he commenced his search for Murray Kramer’s telephone number.

[97] Constable Corba testified that during the same period that he was searching for the lawyer’s number, which was from 2:26 a.m. to 3:35 a.m., he was also required to enter certain information on the computer. This included Mr. Francis’ identification information, a property report, and a COVID-19 screening form. Constable Corba was not questioned as to how long it took him to complete these forms. Presumably it was not very long. The property report would have been very brief as the only property seized from Mr. Francis were his laces and earrings.

[98] Constable Corba began his search for Murray Kramer’s telephone number by visiting the Law Society of Upper Canada’s website and other websites using Google. When those searches bore no fruit, he began to “plug in” similar names and variations of the spelling of “Murray Kramer,” but to no avail.

[99] On several occasions, Cst. Corba returned to the interview room in the hope that Mr. Francis could provide him with more information that would assist in contacting counsel. On the officer’s third trip to the interview room, Mr. Francis gave him the telephone numbers of two people – his friend, Michelle Gardiner, and his sister, Lisa Hunter – who possibly knew the lawyer’s number.

[100] At 3:35 a.m., Cst. Corba called Ms. Gardiner and transferred the call to Mr. Francis. It turned out that Ms. Gardiner had no information about the lawyer. Mr. Francis’ conversation with her ended at 3:56 a.m. Constable Corba then called Ms. Hunter and put the call through to Mr. Francis. Ms. Hunter provided Mr. Francis with the lawyer’s number. That call ended at 4:14 a.m. Constable Corba immediately called the number. He was first put in touch with an operator, but eventually reached the lawyer, Mary Cremer. Once Ms. Cremer was on the line, Cst. Corba transferred the call to Mr. Francis.

[101] During cross-examination, Cst. Corba was questioned as to how much time he spent in trying to find the lawyer’s telephone number between 2:26 a.m., when the level 3 search was completed, and 3:35 a.m., when he placed the call to Ms. Gardiner. It was suggested to him that it would have taken no more than five minutes to search a couple of websites. Constable Corba disagreed with that suggestion. He explained that he conducted numerous Google searches of names similar to “Murray Kramer,” which led him to various lawyers’ websites, as well as their personal websites. He testified that he ended up combing through a lot of information while on these sites and that when there were no “hits,” he just kept “digging deeper and deeper.” He also testified that some of the time between 2:26 a.m. and 3:35 a.m. was taken up by his visits to the interview room, during which he attempted to elicit more information from Mr. Francis that would assist in contacting counsel.

[102] Constable Corba testified that had he not been successful in finding Mr. Francis’ lawyer of choice, he would have contacted duty counsel, which is his general practice in similar situations. He stated that he would not have just left Mr. Francis in the interview room with no opportunity to speak to a lawyer.

[103] At no point did any police officer question Mr. Francis in an attempt to elicit evidence from him.

Analysis

[104] The duty to enable access to a lawyer arises immediately upon the detainee’s request to speak to counsel. The police are therefore under a constitutional obligation to help the detainee access a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances. Whether a delay in facilitating access to counsel is reasonable is a factual inquiry: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 24.

[105] Courts have recognized that specific circumstances, including concerns for police safety, public safety, or the preservation of evidence, may justify some delay in providing a detainee access to counsel. Such concerns must be case-specific rather than general concerns applicable to virtually any case. The police may delay access to counsel 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 if such circumstances exist, the police must take reasonable steps to minimize the delay in granting access to counsel: R. v. Rover, 2018 ONCA 745, 366 C.C.C. (3d) 103, at paras. 26-27.

i) The Delay in Implementing the Rights to Counsel at the Scene

[106] Defence counsel submits that Mr. Francis should have been afforded the opportunity to speak to his lawyer at the scene and before he was transported to the police station. I disagree.

[107] As stated in R. v. Playford, (1987) 63 O.R. (2d) 289 (Ont. C.A.), at para 31, consultation in private is a vital component of the s. 10(b) rights. Based on Sgt. Nishikawa’s evidence, there was no way that Mr. Francis could have been afforded privacy while consulting with counsel during the seven minutes that he was standing outside after his arrest at 12:44 a.m. and while Sgt. Nishikawa waited for the house to be cleared. Sergeant Nishikawa would have had to remain in close proximity to Mr. Francis out of concern that he might try to escape. He would also have had to be close enough to hold the phone to Mr. Francis’ ear, as Mr. Francis was handcuffed. I note that it is apparent from the pat-down search that Mr. Francis was not in personal possession of a cell phone at that time. Pursuant to Taylor, at para. 27, the police are under no legal duty to provide their own cell phones to a detained individual.

[108] Mr. Francis’ right to consult with counsel in private would also have been compromised by attempting to facilitate contact while he was in the house. The search was underway for at least part of that time – it did not commence until 12:51 a.m., when the ETF officers finished clearing the premises. It was reasonable that Mr. Francis remain handcuffed, as there was only one officer available to guard him and the two found-ins. Even if another officer had been available to take him to another room, there would have been privacy concerns. Mr. Francis could not have been left alone in a room because of the risk that he could escape, tamper with evidence, or have access to weapons.

[109] In summary, concerns for officer or public safety, as well as lack of privacy, justified the delay in implementing the right to counsel while Mr. Francis was present at 25 Rathburn Road.

ii) The Delay in the Arrival of a Scout Car at the Scene

[110] None of the TDS officers could transport Mr. Francis to 11 Division as there were no scout cars on scene, and because they were also responsible for conducting the search of the house and Mr. Francis’ vehicle.

[111] Calls for a scout car to attend at 25 Rathburn Road were made in a timely manner. One call was made at 12:50 a.m., while Sgt. Nishikawa and Mr. Francis were still standing outside and waiting for the ETF to clear the house. At 12:54 a.m., which was just three minutes after the house was cleared and ten minutes after Mr. Francis’ arrest, another call for transport was made, along with the request that the next available car be sent. The ICAD report indicates that an attempt to comply with this request was made at 12:56 a.m., but no car was available.

[112] A further attempt to send a scout car to 25 Rathburn Road was made at 1:11 a.m., but for some reason, that “event” was “cleared” at 1:24 a.m. However, four minutes later, at 1:29 a.m., both Constables Corba and Hastick were dispatched and arrived on scene at 1:34 a.m. Constable Corba took custody of Mr. Francis at 1:36 a.m., and gave him his rights to counsel at 1:47 a.m. Implementation of those rights could not take place at that time as the ICCS was activated.

[113] In summary, there was a 50-minute delay between Mr. Francis’ arrest at 12:44 a.m. and Cst. Corba’s arrival at the scene at 1:34 a.m. Constable Corba took custody of Mr. Francis two minutes later, seated him in Cst. Hastick’s scout car, and gave him his rights to counsel. Mr. Francis was then transported to 11 Division, arriving there at 2:01 a.m.

[114] It is apparent that the cause of the delay in sending a scout car to the scene was a shortage of available cars on that particular night as opposed to a failure by the TDS to call for transport in a timely way or by a lack of effort on the part of the police to respond to those requests. There was no evidence that delays in transporting accused persons to a police station was a common or systemic problem.

[115] Based on all of the circumstances, I find that there were case-specific reasons that justified the delay in transporting Mr. Francis to 11 Division, where he could call his lawyer.

iii) The Booking Procedure and Level 3 Search at 11 Division

[116] There was no significant delay in commencing the booking procedure, during which Cst. Corba advised the booking officer that Mr. Francis wished to speak to counsel. Mr. Francis confirmed to Cst. Corba for the second time that his lawyer’s name was Murray Kramer.

[117] The booking of Mr. Francis was followed by a Level 3 search, which took place from 2:19 a.m. to 2:26 a.m. Following the search, Cst. Corba placed Mr. Francis in an interview room and then attended at an office in the CIB.

[118] I am satisfied that the time taken to complete the booking process and Level 3 search was reasonable in the circumstances.

iv) Constable Corba’s Efforts to Contact Counsel: 2:26 a.m. to 3:35 a.m.

[119] Constable Corba diligently set about the task of finding the telephone number of “Murray Kramer” shortly after the Level 3 search was completed. He searched multiple websites using different spellings and variations of the lawyer’s name. Unlike the accused in Rover, Mr. Francis was not left to languish in the interview room with no explanation for the delay in putting him in touch with counsel. Constable Corba returned to the interview room three times between 2:26 a.m. and 3:35 a.m. in the hope that Mr. Francis could provide him with more information about his lawyer or suggest different ways of getting in touch with him. It was only on his third trip that Mr. Francis gave him Ms. Gardiner’s and Ms. Hunter’s telephone numbers. As Mr. Francis did not testify, it is not known why he failed to provide Cst. Corba with their numbers during one of the officer’s earlier trips to the interview room. Constable Corba testified that he specifically asked him on those occasions for any information that could help him contact his lawyer. In any event, upon receiving Ms. Gardiner’s and Ms. Hunter’s numbers, Cst. Corba promptly called them. He called Ms. Gardiner first and then Ms. Hunter, putting each of the calls through to Mr. Francis.

[120] Mr. Francis spent the next 39 minutes on the phone speaking to the two women. He spoke to Ms. Gardiner from 3:35 a.m. to shortly before 3:56 a.m., and to Ms. Hunter, who provided him with the lawyer’s number, from 3:56 a.m. to shortly before 4:14 a.m. Upon learning the lawyer’s number, Cst. Corba called it, spoke to Ms. Cremer, and put the call through to Mr. Francis.

[121] During his submissions, defence counsel asserted that Mr. Francis “didn’t get any phone call until 3:35 a.m. and eventually a phone call to his lawyer at 4:14 a.m.” However, there is no evidence that Mr. Francis asked Cst. Corba to call anyone prior to the officer’s third trip to the interview room. Mr. Francis was on the phone speaking to either Ms. Gardiner or Ms. Hunter for almost the entire time between 3:35 a.m. and 4:14 a.m., at which point he was put in contact with his lawyer.

[122] Defence counsel submits that there was unreasonable delay in implementing Mr. Francis’ right to counsel as a result of Cst. Corba spending time doing tasks other than searching for the lawyer’s number between 2:26 a.m. to 3:35 a.m. I disagree.

[123] Constable Corba testified that during that interval of time, he was required to enter certain data into the computer, which included: Mr. Francis’ identification information, the property report, and a COVID-19 screening report. Constable Corba was not questioned as to the exact amount of time that it took him to enter this data, but it most likely took a matter of minutes. The identification information and property report would have been brief. The only property seized from Mr. Francis were his shoe laces and earrings during the Level 3 search and possibly a couple of items during the booking. The steps taken to enter these forms plus the COVID-19 screening report were, in essence, a continuation of the booking process, the purpose of which is, in part, to ensure the health and safety of the accused and others, and that any property in the possession of an accused is properly recorded and secured. It was also incumbent on Cst. Corba to make notes of certain events in a timely manner, such as when he began and finished the Level 3 search, and when he placed Mr. Francis in the interview room. As this s.10(b) application demonstrates, the recording of times is extremely important in terms of calculating whether the time interval between an accused’s arrest and his contacting counsel constitutes unreasonable delay.

[124] Although Cst. Corba may have taken a few minutes to complete some requisite forms and notes, it is apparent from his testimony that Mr. Francis’ rights to counsel were top of mind for him and that he understood the importance of those rights. He gave Mr. Francis his rights to counsel at the scene, a practice that he follows even if the accused has already been advised of those rights by another officer. He advised the booking officer that Mr. Francis wished to speak to counsel. Following the Level 3 search, he spent the better part of an hour trying to find that lawyer’s number. This included speaking to Mr. Francis on three occasions in an attempt to glean more information that could assist him in contacting the lawyer. When Cst. Corba finally learned Ms. Cremer’s number, he called it promptly and forwarded the call to Mr. Francis.

[125] Constable Corba testified that had he not succeeded in reaching Ms. Cremer, he would have contacted duty counsel, which is his usual practice in similar situations. He would not have left Mr. Francis without any access to a lawyer.

Conclusion

[126] Having considered all of the evidence and submissions of counsel, I find that Mr. Francis’ s. 10(b) rights were not violated by the timing of his opportunity to speak to his lawyer. Any delay in facilitating his access to counsel was reasonable in the circumstances.

[127] In the event that I am wrong in finding that there were no breaches of Mr. Francis’ ss. 8, 10(a) or 10(b) Charter rights, I have considered whether the drugs, money, and other items seized by the police should be admitted under s. 24(2) of the Charter.

C. SECTION 24(2) ANALYSIS

[128] There is no causal connection between any breach of Mr. Francis’ ss. 10(a) or (b) Charter rights and the impugned evidence. However, there is a temporal and contextual connection which, based on recent jurisprudence, is sufficient to trigger the exclusion of evidence obtained during the search of 25 Rathburn Road and the pat-down search of Mr. Francis: see R. v. Pino, 2016 ONCA 389, 337 C.C.C. (3d) 402, at paras. 50-78.

[129] Section 24(2) requires the accused to establish that, “having regard to all the circumstances, the admission of it [the evidence] in the proceedings would bring the administration of justice into disrepute.”

[130] 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: (i) the seriousness of the Charter-infringing state conduct, (ii) the impact of the breach on the Charter-protected interests of the accused, and (iii) society’s interest in the adjudication of the case on its merits: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 71-86.

(i) Seriousness of the Charter-infringing State Conduct

[131] The seriousness, if there was a s. 8 breach, falls at the low end of the spectrum. The police acted as they were obliged to act: they applied for and obtained a search warrant from an independent judicial officer which, as stated in Rocha, at para. 28, “is the antithesis of wilful disregard of Charter rights.”

[132] The police acted in good faith based on detailed and compelling information that was provided by a confidential source. They corroborated some of the information when applying for the warrant. There is no indication of any deliberate or egregious police misconduct, or that the warrant was obtained through the use of false or deliberately misleading information. The police conduct and their obtaining of the warrant weighs in favour of admitting the evidence. The surveillance conducted by the police that night after the warrant was obtained and before it was executed would no doubt have strengthened their belief that there were reasonable and probable grounds to search both the house and the vehicle. During that surveillance, Mr. Francis was seen driving the Infiniti to and from the house on several occasions. At 10:51 a.m., he arrived at 25 Rathburn Road, parked the Infiniti in the driveway, and walked to the west side of the house. At 10:57 p.m., he got back into his car and drove away. Seven minutes later, at 11:04 p.m., he returned and again parked in the driveway. At 12:44 a.m., when the ETF moved in to execute the warrant, Mr. Francis was once again outside and in the driveway near his car.

[133] Any breaches of Mr. Francis’ s. 10 Charter rights also fall at the low end of the spectrum. None of the breaches can be characterized as the product of an improper police protocol, or a systemic failure by the police to meet their constitutional obligations such that the court should disassociate itself from their conduct. Any breaches that occurred were situation-specific.

[134] Both Sgt. Nishikawa and Cst. Corba were mindful of Mr. Francis’ rights to counsel. Sergeant Nishikawa informed Mr. Francis of those rights immediately after the pat-down search, which was conducted almost entirely out of safety concerns and immediately after his arrest. In failing to provide Mr. Francis with access to counsel at the scene, Sgt. Nishikawa took into account the lack of privacy, as well as safety considerations and the possibility of Mr. Francis escaping or destroying evidence. There was no “policy” being followed to purposely deprive Mr. Francis of contact with his lawyer.

[135] Mr. Francis was informed of his rights to counsel a second time at the scene by Cst. Corba, who also confirmed with him the name of his lawyer. Mr. Francis’ s. 10(b) rights could not be implemented at that time because of a lack of privacy: the ICCS would have recorded the call to counsel. In these circumstances, implementation of the rights to counsel had to take place at the police station.

[136] The delay in implementing Mr. Francis’ s. 10(b) rights at the station was not the product of improper police conduct or a deliberate police practice of suspending his rights to counsel. Constable Corba was diligent in his efforts to implement those rights. When his searches for the lawyer’s number were unsuccessful, he spoke to Mr. Francis several times in the hope of eliciting more information that could assist him in contacting counsel. Had he not been successful in contacting the lawyer, he would have called duty counsel, which is his usual practice in similar situations.

[137] Taking into account both the s. 8 and s. 10 Charter breaches, I find that this line of inquiry of the Grant analysis favours admission of the evidence.

(ii) Impact of the Breaches on the Accused’s Charter-protected Interests

[138] In determining the seriousness of the Charter breaches, it is necessary to look to the interest engaged by the infringed rights and determine the degree to which the violation affected those rights. The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.

[139] The interest engaged by a s. 8 breach is Mr. Francis’ right to privacy in his residence and his vehicle. The expectation of privacy in one’s vehicle is somewhat attenuated. However, the expectation of privacy in one’s home is high. As stated in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, entering a person’s home to execute a search warrant is extremely intrusive. This second line of inquiry with respect to the s. 8 breach favours exclusion of the evidence.

[140] The impact on Mr. Francis’ s. 10 Charter-protected interests was minimal. No evidence was obtained as a result of any s. 10 (a) or (b) breach. At no time did any police officer question Mr. Francis in an effort to elicit incriminating statements or evidence from him. He was not left alone to languish in the interview room, unaware of what was going on. Mr. Francis would have been fully aware that the delay in his speaking to counsel was due to Cst. Corba’s difficulty in finding the lawyer’s telephone number – the officer visited him three times in the interview room seeking information that could assist him in contacting the lawyer. It was always Cst. Corba’s intention to put Mr. Francis in contact with his lawyer. Mr. Francis did eventually speak to counsel of his choice that night. This line of inquiry with respect to the s. 10 breaches does not favour exclusion.

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

[141] The third line of inquiry mandated by Grant looks to society’s interest in an adjudication of a criminal trial on its merits. Society’s interest in an adjudication on the merits is seriously undercut where highly reliable and important evidence is excluded. The evidence in issue here – 18.72 grams of crack cocaine and 0.79 grams of fentanyl – is entirely reliable, and certainly not compromised by any infringement of Mr. Francis’ s. 10(a) or (b) rights. It is also essential to the Crown’s case. Excluding it would effectively “gut the prosecution.” In McGuffie, at para. 62, the Court held that the inclination toward admissibility “is particularly strong where the evidence is reliable and critical to the Crown’s case.”

[142] The charges are serious, given the nature of crack cocaine and fentanyl, both of which were described by the expert witness as hard and addictive. Fentanyl is extremely dangerous. Trafficking in fentanyl or crack cocaine is punishable by up to life imprisonment. However, as noted by the majority in Grant, at para. 84, the seriousness of the charges will “cut both ways” when assessing society’s interest in an adjudication on the merits.

(iv) The Balancing

[143] Having conducted the inquiries mandated by Grant, I find that the nature of the state conduct and society’s strong interest in an adjudication on the merits militate in favour of admitting the evidence. The impact on Mr. Francis’ s. 8 rights points toward exclusion. However, in circumstances where the police acted in good faith, where their conduct in obtaining the warrant was the antithesis of a wilful disregard of Charter rights, and where any breach of Mr. Francis’ s. 10 Charter rights cannot be characterized as the product of an improper police protocol or a systemic failure of the police involved in the investigation to meet their constitutional obligations, the exclusion of reliable crucial evidence would, viewed reasonably and from a long-term perspective, have a negative effect on the repute of the administration of justice.

Conclusion

[144] As Mr. Francis has not established that the admission of the drugs, money and other items seized would bring the administration of justice into disrepute, the application to exclude the evidence under s. 24(2) is dismissed.

Garton J.

Released: February 14, 2023

Court File No.: CR- 21-9-0000577-0000 Date: 2023-02-14 Ontario Superior Court of Justice

Between:

His Majesty the King

– and –

David Francis, Applicant

Rulings on Charter Applications

Garton J.

Released: February 14, 2023