Court File and Parties
Court File No.: CR-21-90000431-0000 Date: 2023-02-24 Ontario Superior Court of Justice
Between: His Majesty The King And: Frank Lee, Jason Cooney, Defendants
Counsel: C. Leafloor, R. Gregor, for the Crown G. Orr, for Frank Lee R. MacDonald, for Jason Cooney
Heard: January 16 – 23, 2023
Justice: S. Nakatsuru
1Mr. Lee and Mr. Cooney were in a car with two kilograms of crystal methamphetamine in a Walmart bag on the back seat. They brought an application under the Charter for an exclusion of that evidence. I dismissed this application. These reasons explain why.
A. Reasonable and Probable Grounds to Arrest the Applicants
2I find that on November 14, 2019, the police had subjective reasonable and probable grounds to arrest the applicants for possession of drugs and that these grounds were objectively justified. While Detective Johnston, a primary investigator in Project Inked, ordered the takedown, he and Detective Bowmaster, the team lead of the Mobile Surveillance Support unit involved, consulted with each other and made the joint decision, based on the grounds they had, to arrest the occupants of the Mercedes. Thus, their joint beliefs must be considered.
3First of all, I accept their testimony. Detective Johnston honestly held the subjective belief that based on reasonable and probable grounds, the occupants in the Mercedes were committing the offence of possession of a controlled substance for the purpose of trafficking. My assessment of Detective Bowmaster is no different. Both were candid and straightforward. Both were unshaken on cross-examination. The subjective part of the test has been met.
4It is the objective part of the test that Mr. Lee and Mr. Cooney contest. The totality of the circumstances that inform the objective assessment of whether the officers had reasonable and probable grounds for the arrest include the following:
A significant contextual factor in evaluating the meeting on November 14, 2019, between Tuan Bui and the applicants in the Mercedes, is the information the police had collected during a four-month-long major investigation named Project Inked into Mr. Bui, who was a primary target in a drug trafficking scheme. The investigation yielded strong evidence against Mr. Bui. This included the following. On October 17, 2019, the police found in a vehicle, a Toyota Sequoia, driven by Mr. Bui, a digital scale with residue of cocaine, some methamphetamine, and a bundle of cash. These items were in Detective Johnston’s view, consistent with drug trafficking. On October 28, another surreptitious entry into the Sequoia uncovered an even larger bundle of cash in the centre console. That same day, through the execution of a general warrant, the police found over three kilograms of crystal methamphetamine in a duffle bag in the front hall closet of unit 3810, 215 Fort York Boulevard, which was Mr. Bui’s residence. On November 11, 2019, after Mr. Bui accessed a Hyundai sedan parked in an underground garage that the police believed through investigation was a stash vehicle, the police discovered in the vehicle rubber gloves, baking soda, a smell of cocaine, and what appeared to be a hydraulic “trap” compartment. All of this was strong evidence of Mr. Bui being a high-level drug trafficker.
There is both a temporal and contextual connection between this the Fork York Boulevard apartment, the Sequoia, and the arrest of the applicants. The police surveilled Mr. Bui coming to this apartment building at 3:30 p.m. on November 14, 2019, when, three minutes after attending, he left carrying a beige backpack. On his way to meeting the applicants, at 4:02 p.m., Mr. Bui pulled over to the southside curb of Iceboat Terrace. He sat for a bit, then at 4:17 p.m., he exited the driver’s seat and went into rear driver door and bent over. He then closed the rear door of the Sequoia and was on the phone. He got into the car and left.
Then, Mr. Bui drove to a side street near some condominium buildings where he met the applicants, who were already parked there in the Mercedes. It was parked in an area where there were few other cars around.
Mr. Bui parked, exited his car, retrieved a reusable blue Walmart shopping bag containing something substantial in it from the back of his car, and crossed directly over to the Mercedes where Mr. Lee was in the driver’s seat and Mr. Cooney was in the front passenger seat. After spending only about 20 seconds 1 in the back seat, Mr. Bui left without the Walmart bag and returned to his vehicle. About ten minutes later, the Mercedes was stopped and the applicants were arrested. Detective Bowmaster testified that based in part on his extensive police experience in mobile surveillance and the drug squad, he believed this interaction was consistent with a high-level drug transaction.
Detective Bowmaster received information before the takedown took place that Mr. Bui was doing “laps” in the area, which was consistent with Mr. Bui being wary of surveillance after a drug deal had taken place. The officer admitted this played a minor role in his grounds for the arrest.
5In my opinion, this constitutes objective reasonable and probable grounds. A high-level drug dealer met with the applicants in circumstances that reasonably justified the conclusion that a drug transaction took place. Crucially, a bag was left in the Mercedes after a very short meeting, which, in context, justified a reasonable inference that the bag contained an illegal drug: see R. v. Kaup, 2022 ONCA 383, at paras. 19-20.
6I do not accept the applicants’ arguments that the fact that the officers lacked information about the applicants is determinative. That the police officers knew nothing about the applicants did not mean that the officers were required to ignore the highly probative evidence that they had about Mr. Bui and his drug trafficking activities. This shaped the context of the meeting with the two persons in the Mercedes. Moreover, the attendance at the unit where a large quantity of crystal methamphetamine had been discovered earlier by the police and Mr. Bui’s suspicious conduct in the back of the vehicle just prior further shaped the context of the meeting.
7The crucial piece of information was the transfer of the bag. When viewed in the totality of the circumstances, this moved the needle past reasonable suspicion into reasonable and probable grounds territory. The leaving of a bag in an occupied car, in and of itself suspicious behavior, cannot be divorced from the total context which includes the discrete location of the meeting, the very brief interaction, and who Mr. Bui was known to be: see R. v. Ortega, 2022 ONCA 826, at para. 3. A reasonable person in the shoes of the police at that moment, viewed through the very experienced eyes of the detectives, given the knowledge gained during Project Inked, would believe that they had reasonable and probable grounds that the occupants of the Mercedes were in possession of an illegal drug.
8Thus, I find there is no violation of s. 9 of the Charter.
B. Searches Incident to Arrest
9The Walmart bag was searched under the police authority to search incidental to arrest.
10Search incidental to arrest must be truly incidental to the arrest. It must be done for the purpose of ensuring the safety of the police and public, the protection of evidence from destruction, and the discovery of evidence: see R. v. Caslake, [1998] 1 S.C.R. 51, at para. 19.
11I fully accept Detective Bowmaster’s testimony on this. I am satisfied that these searches were incidental to a lawful arrest and for proper purposes.
C. Right to Counsel: Delay in Advising Mr. Cooney of his Right to Counsel
12The Crown concedes that Mr. Cooney’s right to counsel was violated by the police failure to advise him of his right to counsel until 4:55 p.m., when D.C. Brideau, the central note-taker of the Mobile Surveillance Support team, gave him his right to counsel. Mr. Cooney was arrested at 4:35 p.m. by D.C. Wong and D.C. Lavers when the Mercedes was taken down. He was quickly secured and taken to an alcove area of an adjacent building to stay out of the cold while awaiting police transport. D.C. Wong occupied himself with other duties as well as maintaining custody of Mr. Cooney. But he never provided Mr. Cooney his right to counsel as it was his belief that it was the central notes officer, who had the memo book with written rights to counsel in it, who was designated to provide it.
13I find that s. 10(b) was violated due to D.C. Wong’s understanding, whether correct or not, that the central note-taker was responsible to give rights to counsel to Mr. Cooney and the failure of D.C. Brideau to provide it earlier. D.C. Brideau himself was engaged in other tasks, such as stowing his long gun, securing the scene, and obtaining his notebook. None of these circumstances warranted delaying, for 20 minutes, the informational component of s. 10(b). D.C. Wong or D.C. Brideau should have given Mr. Cooney his right to counsel immediately.
D. Right to Counsel: Delay in the Implementation of Mr. Cooney’s Right to Counsel
14Police are under a positive duty to facilitate contact with counsel at the first reasonably available opportunity once the detainee requests to speak to counsel: R. v. Suberu, [2009] 2 S.C.R. 460, at paras. 37-42; R. v. Taylor, [2014] 2 S.C.R. 495, at para. 24. Any practical impediments to the police's ability to facilitate access to counsel must be reasonably necessary: R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at paras. 26-28.
15Again, the Crown concedes a breach of s. 10(b) with regards to the implementation of Mr. Cooney’s right to counsel. It was unreasonably delayed from 6:58 p.m. to 7:34 p.m., a period of 36 minutes. During this time, after being paraded and booked into 14 Division, Mr. Cooney was lodged in a cell. It was not until 7:34 p.m. that P.C. Koops first called Mr. Cooney’s counsel of choice. P.C. Koops had occupied himself with things such as doing paperwork or moving his scout car while Mr. Cooney was sitting in his cell. I agree with the Crown concession that none of this trumps Mr. Cooney’s right to reasonably access counsel.
16The defence submitted that other delays that occurred that evening were also unreasonable. I disagree.
17The delay in transport has been adequately explained and justified. I accept Detective Bowmaster’s explanation for the delay. It was reasonable not to use the covert vehicles of the Mobile Surveillance Support team for transport. As opposed to a scout car, these unmarked vehicles were not sufficiently secure to transport Mr. Cooney or Mr. Lee. In addition, there were logistical and privacy concerns that justified the police decision not to permit the men to use cellphones in such unmarked vehicles. For example, the safety of police equipment found within the vehicles was a concern. I also accept the uncontradicted evidence that the neighborhood in which the takedown occurred was a high crime area and the arrest had attracted significant attention from others in the locale that necessitated discretion and caution being exercised by the police. Permitting the men to utilize a cellphone in one of the covert vehicles would have identified it as a covert police vehicle, and thus would have impaired its usefulness in future operations. The decision to call for a scout car to transport the applicants was reasonable in all the circumstances.
18I appreciate that there was considerable delay in getting such scout cars to the scene. Both men were arrested at 4:35 p.m. P.C. Koops arrived on scene at 5:09 p.m. P.C. Scotland and P.C. Vigna arrived and took custody of Mr. Lee at 5:12 p.m. However, this delay in transport was not due to any lack of effort by Detective Bowmaster. He made concerted and persistent efforts to obtain such transport, including asking to speak to supervisors and seeing if police vehicles from other divisions were available. I do not accept that the fact that P.C. Vigna and P.C. Scotland were only asked to transport at 4:35 p.m. means that other vehicles would have been available earlier. This request for scout cars was occurring during rush hour in downtown Toronto. It is entirely plausible that police vehicles were not available at that time. Regardless of whether a scout car could have been available somewhere in the city, the fact remains that a senior detective made exhaustive efforts to arrange for transportation and was repeatedly told that there were no cars available. It is not for me to delve into a minute and comprehensive analysis about whether some police car, somewhere, could have been freed up. Rather, what I must decide is whether the delay was reasonably explained and justified in all the circumstances. I find that it is, given the evidence of Detective Bowmaster.
19There was also a delay at the sally port. Mr. Cooney sat waiting for over an hour. This delay was caused by the booking staff being occupied by other persons in the booking hall. While this was unfortunate, it was nonetheless reasonable. Given the layout of 14 Division and the nature of the booking process required for all arrestees coming into the station, it was necessary for Mr. Cooney and the transport officer to wait until the booking officers were ready to let them in. In this case, there was another person, Mr. Lee, being booked ahead of Mr. Cooney and then there was another person that needed to be released from the station. Thus, Mr. Cooney had to wait his turn. I am satisfied any potential work arounds suggested by the defence, such as bringing Mr. Cooney in through another entrance, would not meet the objectives of the established procedures for booking arrestees; procedures put in place for the safety and welfare of the arrestees and those in the police station: see R. v. Desilva, 2022 ONCA 879, at paras. 77, 79. Moreover, the failure to facilitate a call to counsel using a cellphone during this time is explained by the fact that privacy could not be provided, given that cameras both in the cruiser and in the sally port area were recording. I do note that while waiting at the sally port, P.C. Koops did take the opportunity to get contact information for Mr. Cooney’s lawyer.
20That being said, as stated in Desilva, at para. 86, the fact that there were reasonable but significant delays that occurred during the transport and booking of Mr. Cooney made it that much more important for the police to take all reasonable steps to facilitate the right to counsel as soon as reasonably practical thereafter. Like in Desilva, no good explanation has been given for the additional delay when P.C. Koops was engaged in non-essential tasks. Thus, as conceded by the Crown, the additional delay of 36 minutes while Mr. Cooney sat in his cell was a violation of s. 10(b).
E. Right to Counsel: Delay in the Implementation of Mr. Lee’s Right to Counsel
21The Crown concedes a violation of s. 10(b). No reasonable steps were taken to contact Mr. Lee’s counsel of choice from 6:02 p.m. to 7:52 p.m., when the police called Mr. Lee’s counsel of choice. This 1 hour and 50-minute delay was unreasonable.
22The other periods of delay have been reasonably explained by the Crown. As noted above, the delay in transporting Mr. Lee was reasonable. Once Mr. Lee arrived at 14 Division at 5:31 p.m., he waited at the sally port until 5:42 p.m., when he was paraded before Sgt. Allen. This modest wait time is explained by the administrative steps required to receive a prisoner before parading. The parade and strip search from 5:42 p.m. to 6:02 p.m. was reasonable.
23It was only once Mr. Lee was lodged in a cell at 6:02 p.m. that the delay in contacting counsel became unreasonable. By this point in time, there had been significant delay in facilitating his right to counsel. I appreciate that P.C. Scotland was a very raw recruit, but he was aware of the importance of the right to counsel. Mistakenly, though perhaps understandably, given his lack of experience, he seemed to have waited to be directed to give Mr. Lee his phone call. P.C. Vigna and P.C. Scotland discussed this very matter after Mr. Lee was lodged in the cell and it was agreed that P.C. Scotland would deal with the phone calls. It was therefore his responsibility. While he was asked to help with the parade of Mr. Cooney and to perform other duties soon after that conversation with P.C. Vigna, he failed in giving due priority to facilitating Mr. Lee’s right to counsel.
24In sum, this delay cannot be reasonably explained or justified. P.C. Scotland did not make the call with reasonable dispatch. Ultimately, he did call Mr. Orr, Mr. Lee’s counsel of choice, and left a message. At 8:16 p.m., Mr. Lee was able to speak to duty counsel.
F. Section 24(2): The Exclusion of the Evidence
25Under s. 24(2), evidence obtained in breach of the Charter is excluded if its admission could, in all the circumstances, bring the administration of justice into disrepute. The focus of the inquiry is on the long-term impact of the admission of the evidence on the repute of the justice system: see R. v. Grant, [2009] 2 S.C.R. 353, at paras. 67-70.
26The test requires the consideration of three lines of inquiry into:
- The seriousness of the Charter-infringing state conduct;
- The impact of the breach on the Charter-protected interests of the accused; and
- Society’s interest in the adjudication of the case on its merits.
27I will address the s. 24(2) analysis for Mr. Cooney and Mr. Lee together. I am mindful that the issue of remedy should be addressed separately for each person. However, it is convenient to do it in this way, as much of the same factors apply to both, and the police conduct in relation to each applicant should be cumulatively considered in determining the remedy for each: see R. v. Boutros, 2018 ONCA 375, 361 C.C.C. (3d) 240, at para. 26.
1. The seriousness of the Charter-infringing conduct
28With respect to the failure to advise Mr. Cooney his right to counsel without delay, I find this was due to carelessness. There was the result of a misunderstanding by D.C. Wong. D.C. Wong, who was new to Mobile Surveillance Support Unit, honestly believed that the practice was for the central notes officer to give rights to counsel. However, regardless of that view, D.C. Wong could have given Mr. Cooney his right to counsel immediately. I observe that D.C. Lavers had no difficulty in giving Mr. Lee his right to counsel upon his arrest. If D.C. Wong was unable to recite the right to counsel from memory, he could have readily retrieved a memo book to do so, especially once he became aware that the central notes officer was delayed in providing it to Mr. Cooney.
29I conclude from these facts that this violation, while serious, was not deliberate or flagrant. It stemmed from D.C. Wong’s inexperience with the unit and carelessness in not ensuring Mr. Cooney’s rights were given in a timely manner. Moreover, Mr. Cooney’s right to counsel was eventually given to him and the police did nothing in the interim to elicit any incriminating evidence from him.
30With respect to the delay in facilitating access to counsel for both applicants, the delay was also due to carelessness and neglect. It was not as if the officers did not know their obligations, but again, they did not make this a priority. They did not deliberately delay affording Mr. Lee and Mr. Cooney a chance to call their lawyers; they eventually did so. Put differently, they were not totally indifferent to their duties, but they were lackadaisical. They just did other tasks. They had their priorities wrong.
31More specifically with respect to the violation of Mr. Lee’s right, this is further mitigated by the fact that P.C. Scotland was very inexperienced. He was a 21-year-old trainee who had only been sworn into the Toronto Police Service about a month prior. I accept that he was likely looking for direction from other more senior officers and failed to show the appropriate diligence and initiative a more seasoned officer would have. In his testimony, he was candid and showed both insight and regret into his failings that evening. Now, he would do things differently.
32For both Mr. Cooney and Mr. Lee, the police did not further aggravate the Charter violation by attempting to elicit any evidence from the men during the delay. Additionally, the police were at other times mindful of ensuring the two men’s rights to counsel were fulfilled. This does not amount to good faith within the meaning of the s. 24(2) analysis, nor does the later Charter-compliant conduct mitigate the breach. However, the breach is not made more serious by bad faith or a pattern of a disregard for Charter rights.
33While the applicants try to paint the violations as systemic, they are over-reaching when they argue this. I find nothing systemic about the violations. Regarding the failure to inform Mr. Cooney of his right to counsel, this was an isolated error made by D.C. Wong. There is no evidence that the Mobile Surveillance Support Unit engaged in a practice that would systematically deny rights to counsel. Indeed, with respect to Mr. Lee, he was advised of his right to counsel promptly.
34With respect to the delay at the station, this too was not a systemic violation. The applicants submit that a protocol or a system should be in place where a supervising officer ensures that counsel calls are properly facilitated. There is no such official protocol at 14 Division. It is left to the professionalism and the due diligence of the individual officers to ensure s. 10(b) rights are facilitated. In my opinion, while such a protocol or system may be prudent, there is nothing wrong with the police relying on the professionalism and diligence of its members.
35Giving someone access to counsel is a simple and straightforward matter. It should not take any levels of supervision or monitoring to ensure it is done. Who should be tasked with facilitating rights to counsel will vary from case to case. Sometimes, the arresting officer will be best placed to provide it. Other times, a transport officer. Still in other cases, the officer-in-charge of the investigation. Requiring one designated officer to perform this role, as the applicants submit, is too rigid and probably will end up causing even further delays in access to counsel in some cases. It is really the responsibility of the police collectively to implement a person’s right to counsel in an expedient fashion.
36The applicants further argue that the location of the phone booth where rights to counsel are exercised, found in the booking area of 14 Division, causes a systemic delay in accessing counsel, since anytime the booking area is being used, a call to counsel cannot be conducted. I am not persuaded that this has been proven.
37First, situating a facility close to the entry point to a police station for counsel calls has obvious advantages, since it provides a chance for a detainee to get legal advice at an early moment. For instance, they can receive legal advice before having to submit to a strip search at the station.
38Second, no officer with in-depth knowledge or familiarity with how the phone booth at 14 Division is utilized for counsel calls during the booking process has given evidence about this. P.C. Vigna’s views have little weight. Thus, I am unpersuaded that the facility layout in the booking hall routinely causes delays to rights to counsel being exercised in a timely fashion.
39Lastly on this point, I do not see P.C. Scotland’s failure to facilitate Mr. Lee’s right to counsel as a part of a systemic failure. Like other trainees, P.C. Scotland had a training coach to guide and supervise him. The mandated training had reasonable checks and balances to ensure trainees conduct themselves competently. On the day in question, P.C. Scotland’s training coach was delayed. P.C. Scotland was thus doing some station work before he was assigned with P.C. Vigna to go on the road to transport Mr. Lee. P.C. Vigna herself had the qualifications and prerequisites to perform the supervisory role. Once they returned to the station with Mr. Lee, P.C. Vigna advised P.C. Scotland that he would be responsible for the lawyer call. P.C. Scotland had previously facilitated a lawyer call. His failure to do this in a timely manner was an error in judgment. He was tasked with assisting with the subsequent parading and processing of Mr. Cooney and he obeyed that direction without raising an objection that he had been designated the responsibility of ensuring that Mr. Lee got his lawyer phone call. This was a “rookie mistake”. It was not the result of a systemic problem in training and supervising trainee police officers.
40The Supreme Court of Canada has noted that the absence of such a systemic problem is hardly a mitigating factor but it does inform the court's task of situating the officer's mistake on a scale of culpability. In the absence of a systemic problem, exclusion of the evidence to demonstrate the court's dissociation from the misconduct may be less of a concern: R. v. Tim, 2022 SCC 12, 467 D.L.R. (4th) 389, at para. 88.
41A factor that mitigates the seriousness of the breach is the length of delay. For Mr. Cooney, the delay was 36 minutes. For Mr. Lee, 1 hour and 50 minutes. These delays in implementation are far from the lengthiest of delays illustrated in the caselaw that admitted evidence despite a similar s. 10(b) violation: see R. v. Hobeika, 2020 ONCA 750, 153 O.R. (3d) 350, 5 hours and 15 minutes; R. v. Griffith, 2021 ONCA 302, 408 C.C.C. (3d) 244, 3 hours and 40 minutes; R. v. Bailey, 2021 ONSC 8089, 500 C.R.R. (2d) 297, 4 hours and 37 minutes. In comparison, see also cases where evidence was excluded: Rover, 6 hours; R. v. Noel, 2019 ONCA 860, 2.5 hours. Thus, in the context of this type of s. 10(b) violation, the violations do not fall on the most serious end of the spectrum: see Desilva, at para. 94.
42Situating the seriousness of the violations on the spectrum, for Mr. Lee, the violation is moderate to serious: see Desilva, at para. 95. For Mr. Cooney, it is more serious in that there is an added element to the s. 10(b) violation given the failure to provide the informational component of the right to counsel in a timely fashion. However, the violation of the implementational component was less serious, as the delay was only 36 minutes. Overall, I find for Mr. Cooney the violation is moderate to serious.
2. The impact on the Charter-protected interests
43The section 10(b) right "is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination": R. v. Suberu, [2009] 2 S.C.R. 460, at para. 40; R. v. Bartle, [1994] 3 S.C.R. 173, 118 D.L.R. (4th) 83, at p. 191. Additionally, the scope of the section 10(b) protection extends to detainees' psychological security, because access to counsel gives them "the sense that they are not entirely at the mercy of the police" during detention: see Rover, at para. 45; R. v. Jarrett, 2021 ONCA 758, 498 C.R.R. (2d) 38, at para. 52.
44Lessening the impact on these interests is the fact that no evidence flowed from the breach of s. 10(b): Griffith, at para. 71.
45Like in the cases of R. v. Keshavarz, 2022 ONCA 312, 413 C.C.C. (3d) 263, at paras. 112-116, and Desilva, at para. 102, where there is no causal connection between the s. 10(b) breach and the discovery of the evidence, the delay was relatively brief, and the accused does not incriminate himself, this line of inquiry more favours admission than it favours exclusion.
3. The society's interest in the adjudication of the case on the merits
46This factor weighs strongly in favour of the admission of the evidence. The evidence is reliable. It consists of 2 kilograms of crystal methamphetamine. Excluding this evidence will mean the prosecution will be eviscerated. While the seriousness of the offence cuts both ways when assessing this factor, there is no question that there is a strong interest in the adjudication of this offence on the merits.
4. The final balancing
47The final balancing of these lines of inquiry must always keep its focus on the long-term effect of the admission or exclusion of the evidence. Here, the first inquiry pulls in favour of the exclusion of the evidence, but not as strongly as other cases where similar breaches of s. 10(b) have resulted in exclusion. This is mainly because there is no systemic quality to the breaches and the police conduct was not deliberate or flagrant. There is a need to disassociate the court from the police action, but this need is not the strongest on the facts of this case. The second line of inquiry is either neutral or somewhat favours admission for reasons explained above. The third line of inquiry strongly favours admission.
48The final balancing is a qualitative exercise and not a mathematical one. Having engaged in this final balancing, it is clear to me that the correct result is to reject the defence application and to admit the evidence. The admission of the evidence could not bring the administration of justice into disrepute. Therefore, the application is dismissed.
Justice S. Nakatsuru Released: February 24, 2023.
