R. v Williams, 2023 ONSC 3039

His Majesty The King v. Dontay Williams, 2023 ONSC 3039

COURT FILE NO.: CR-19-10000646 DATE: 20230502 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – DONTAY WILLIAMS, Applicant

COUNSEL: Matthew Shumka, for the Crown Kim Schofield / Josephine Baldassi, for the Applicant

HEARD: April 24 - 28, 2023

BEFORE: A.J. O’Marra J.

Charter Applications

1Dontay Williams, the applicant is charged with a number of offences that allege he was in possession of drugs for the purpose of trafficking and possession of a loaded prohibited firearm on May 14, 2018, the date he was arrested.

2When Mr. Williams was searched incidental to his arrest he was found to be in possession of a suspected narcotic, later found to be 7.73 grams of fentanyl, and a large amount of cash. Subsequently, the motor vehicle he had been operating at the time of his arrest was searched as authorized by a search warrant, in which the police located 20.06 grams of powder cocaine, 33.60 grams of crack cocaine, digital scales, and a loaded .357 Smith and Wesson revolver.

3Mr. Williams has brought an application pursuant to the Charter of Rights and Freedoms under ss. 8, 9 and 10(b) in which he asserts his rights have been breached and thereby seeks a remedy of a stay of proceedings under s. 24(1) of the Charter, or in the alternative, the exclusion of all evidence derived as a result of the investigation and execution of the search warrant.

4Specifically, the applicant asserts that he was unlawfully detained and arrested without reasonable and probable grounds and there were insufficient grounds to search his motor vehicle. Also, the search of the motor vehicle was outside of the timeframe authorized by the issuing justice. He claims to have been unreasonably strip searched at the police station. Further, the police unreasonably delayed his contact with counsel, as he had requested at the time of his arrest.

Overview of the Investigation and Arrest

i) Briefing

5On May 13, 2018, police officers of the TPS Major Crime Unit (MCU) had a briefing at 33 Division during which Detective Constable Matthew Corsetti, the handler of a confidential source (CS), advised that he had received information from the CS that the applicant was trafficking cocaine and heroin in the area of Victoria Park Avenue and Sheppard Avenue, Toronto. He was selling the drugs out of the back of his motor vehicle, a black Nissan Altima. Record checks indicated that the applicant drove a 2011 black Nissan Altima, licence number CDRJ 356. The confidential source had identified a photograph of the applicant and the officers were shown a copy of it at the briefing.

ii) Surveillance

6At approximately 10:25 p.m. May 13, the unit consisting of Corsetti, Detective Constable Sean Getty, Detective Constable Kirk Strilec and Detective Andy McCaul attended separately in undercover unmarked police vehicles to the area of Victoria Park Avenue and Sheppard Avenue. At 11:25 a.m. a black Nissan Altima, licence number CDRJ 356 was located unoccupied in the parking area of 2379 Victoria Park Avenue. The vehicle was watched until approximately 2:00 a.m. when surveillance was discontinued.

7The next day May 14, 2018, in the afternoon, officers Corsetti, Getty, Strilec and Detective Constable Dan Harris returned to the area to look for the target of their investigation. At 4:15 p.m. D.C. Corsetti observed the applicant driving in the identified motor vehicle initially southbound on Victoria Park, then westbound on Patrick Boulevard, and turned northbound on Ladner Drive. The black Nissan Altima was seen by Detective Constable Strilec to be driven by the applicant and that there is an unknown female in the front passenger seat. The applicant parked the vehicle on Ladner Drive. At 4:50 p.m. he exited the vehicle and walked up to the front entrance of 57 Ladner Drive.

8D/C Strilec saw the applicant meet an unknown white male who wore a Captain America jacket. They walked back together to the black Nissan Altima. The applicant entered and sat in the driver’s seat and the unknown male entered and sat in the rear passenger seat. In less than 30 seconds, the unknown male exited the motor vehicle and returned to 57 Ladner Drive. The applicant and unknown female drove away, followed by the surveillance team.

9Detective Constable Strilec radioed his observations to the other MCU officers and his belief that a hand-to-hand drug transaction had taken place in the rear of the vehicle. Based on the information provided by the CS that the applicant was selling drugs out of his black Nissan Altima vehicle in the area of Victoria Park and Sheppard Avenues, and his experience investigating drug matters he believed he had reasonable grounds to arrest the applicant.

10The vehicle was followed to the nearby Parkway Mall, where at 4:52 p.m. the applicant drove into the parking lot. The surveillance officers lost sight of the vehicle momentarily, but found it parked unoccupied on the east side of the parking lot, close to Pharmacy Avenue. The officers set up around the parked vehicle to arrest the applicant when he appeared.

iii) Arrest

11At 5:25 p.m. the applicant and the female, later identified as Isabel Ramos, exited the mall, and walked back toward the black Nissan Altima. As the applicant entered into the driver side of the vehicle, D/C Getty and Corsetti approached and placed him under arrest for possession of a narcotic for the purpose of trafficking. Corsetti handcuffed Mr. Williams’ hands to the rear. Getti advised him in what he described as a “soft rights to counsel”, his rights to counsel and caution from memory because he did not have his notebook or lamented card to read from them. He advised the applicant that he would be given his rights to counsel again on camera in the back of a uniformed police car which was going to attend to transport him to the Division.

12As Corsetti maintained control of the applicant, Getty performed a pat-down search and found a large bundle of cash, approximately 1-2 inches thick, and a quantity of white powder believed at the time to be cocaine, (later determined on analysis to be fentanyl). As the MCU officers were operating unmarked vehicles without barriers that separated the rear seats from the front, they were not equipped to transport persons in custody. Detective Constable Getty radioed for the assistance of uniformed officers and a scout car to attend to the scene and transport the accused to the Division to be processed.

13At the same time as Getty and Corsetti were placing the applicant under arrest, Detective Constable Strilec arrested Ms. Isabel Ramos, the female passenger. She had a large bundle of cash in her pocket and a hard object. To conduct a pat-down search and for transport a female officer was required to attend the scene.

14On the arrival of Constables Joseph Domingo and Darren Conlan, uniformed officers of the Bail Enforcement Unit who attended in a marked scout car at 5:42 p.m., the applicant and Ms. Ramos were turned over into their custody. Initially, Mr. Williams and Ms. Ramos were placed in the back of the scout car, however because they could not have two persons in custody together Ms. Ramos was removed and kept by Constable Domingo at the front of the cruiser in view of the on-board camera system to await the arrival of a female officer.

15The applicant remained in the rear of the mark police cruiser, where Constable Conlan repeated his rights to counsel and caution to which he stated he understood. He indicated that he wanted to contact his lawyer, named Michael Strathman with phone number 416-822-2424.

16While D/C Conlan was with Mr. Williams, Constable Domingo testified that Ms. Ramos became quite difficult; belligerent, yelling and at times trying to pull away from him. He kept custody of her pending the arrival of a female officer who would be able to conduct a proper pat-down search and then transport her to the Division.

17At 5:55 p.m. Sergeant Farrell, arrived in a scout car and Ms. Ramos was turned over to her. Sergeant Farrell conducted the pat-down search and found a quantity of suspected drugs. Ms. Ramos was subsequently read her rights to counsel and placed in the rear of Sergeant Farrell’s vehicle for transport to the Division.

18Constable Conlan testified that before they could depart for the Division with Mr. Williams, he had to assist Sergeant Farrell input information in the scout car on-board computer relating to Ms. Ramos’ personal information and arrest. He testified that Sergeant Farrell, although a supervisor, had just been transferred recently from an investigative unit to street patrol duties and she was unfamiliar with the Versadex computer system. The input of arrest information was required before any person in custody could be paraded in the booking hall of the Division.

iv) The Booking Hall – Process and Level III Search

19Once completed, Constables Domingo and Conlan departed the area with Mr. Williams at 6:19 p.m. and arrived at the Division at 6:28 p.m. Ms. Ramos, who had been transported by Sergeant Farrell was paraded first, with the aid of another female officer at 6:33 p.m. Her Booking process was completed at 6:45 p.m., then at 6:46 p.m. escorted to the Criminal Investigation Bureau (CIB). Domingo and Conlan paraded the applicant before Staff Sergeant Jeanille John, the officer in charge of 33 Division at 6:51 p.m.

20Constable Conlan told Staff Sergeant John Constable, as can be seen, and heard on the videotape of the booking process, that the applicant had been arrested for possession of a Schedule 1 substance for the purpose of trafficking:

“…he’s been placed under arrest for P4P, Schedule 1 and possession of proceeds of crime under ( $5000 ). I believe that there was during the search, there was some drugs found, so again we’re requesting a Level III search, ( a strip search )”.

21Further, Constable Conlan advised that Mr. Williams had been given his rights to counsel and at that time had given the name of a lawyer and phone number. Mr. Williams was told by Staff Sergeant John he would have access to speak with his lawyer. Mr. Williams asked the officer, if the name and number was confirmed could it be made known to his girlfriend, Isabel Ramos. S/S John indicated it could be done.

22During the booking procedure, as Staff Sergeant John obtained information about Mr. Williams in order to admit him in to custody, she said to Williams that because the officers had requested a Level III strip search, she was going to grant it based on the information that she was given, “the charges you ‘re facing, the fact that the other ( indiscernible ) on you, for safety that you don’t have anything like that on you. Do you have anything like that on you? Mr. Williams responded: “No Mame”.

23Police Constable Ken Slugg, the Booking Officer, assisting Staff Sergeant John, by conducting the Level III search, requested that Mr. Williams remove his shoes and socks, which was done on camera in the Booking Hall. Laces were removed from the shoes, the shoes inspected, as were the socks, which were returned to Mr. Williams. He was then directed to a separate area off to the left of the Booking Hall, an off-camera area, at 6:59 p.m. Constable Slugg testified that the area has a curtain which is drawn for privacy reasons. Only he and Mr. Williams was present. Mr. Williams was asked to remove one item of clothing at a time, which was handed to the officer to be examined for contraband or weapons, then the piece of clothing was returned to him. At no time was the accused naked or physically touched during the search. When all items had been removed, checked, and returned to the accused, he was asked to open his mouth for a visual inspection.

24Constable Slugg testified that on examining Mr. Williams pants $160.00 cash was found in his left pocket. He returned to the Booking Hall fully dressed where then he put on his shoes.

25Based on the video in evidence the Booking Hall procedure, Mr. Williams went off camera to the curtained area at 6:59:09 p.m. and returned at 7:02:41, just under five minutes off-camera.

v) Call to Counsel

26Constable Conlan testified that at 7:06 Mr. Williams was escorted from the Booking Hall to the Division CIB office and placed in an interview room where he would be able to speak privately with his lawyer when contacted. He testified that just after placing Mr. Williams in the interview room he input some case information. Then he called the lawyer’s phone number given to him by the applicant and found that it was the wrong number. He searched the name of the lawyer on the Law Society website and located counsel’s name and phone number which was one numeral off from the number that had been provided earlier by Mr. Williams. At 7:34 p.m. the correct number was called, and the lawyer was contacted. At 7:36 p.m. the accused spoke with counsel in private in the interview room until 7:44 p.m.

27As had been asked by Mr. Williams earlier in the Booking Hall Constable Conlan told Ms. Ramos the lawyer’s name and number and at her request he arranged for her to speak with him.

Search Warrant

28After Mr. Williams was arrested, the vehicle he had been driving, the 2011 black Nissan Altima was towed to a secure police lot and put under seal by D/C Strilec.

29Detective Constable Getty, with the assistance of Detective Constable Corsetti, the handler of the confidential source, prepared the information to obtain (ITO) a search warrant to be executed on the motor vehicle pursuant to the Controlled Drugs and Substances Act. Information obtained from the source and from the investigation conducted by the police was recounted in the ITO setting out Detective Constable Getty’s reasonable grounds to believe that controlled substance is contained or concealed in the 2011 Nissan Altima, license number CDRJ 356.

30At 10:45 p.m. May 14, 2018, the application and ITO were submitted for a CDSA search warrant. The requested telewarrant was granted by the issuing justice at 12:04 a.m. May 15, 2018. Detective Constable Strilec was advised that the warrant had been granted and at 12:48 a.m. he commenced the search of the motor vehicle, which was completed by 01:42 a.m.

31During the search of the vehicle, in the back driver side passenger seat footwell, D/C Strilec found a black and blue bag that contained two clear baggies of cocaine, with a total weight of 33.60 grams, and in a yellow plastic bag another baggie with 20.06 grams of cocaine. In the console between the front seats of the vehicle, he located 29.64 grams of cannabis resin, (hash).

32On searching the trunk of the vehicle, he found a Nike bag which contained a digital scale and a fully loaded .357 Smith and Wesson revolver that has been wrapped in a red bandana.

33At 1:59 a.m., given the results of the search, Detective Constable Corsetti advised Mr. Williams of the additional charges of possession of a prohibited loaded firearm, and two more counts of possession for the purpose of trafficking. At that time, the officer recounted his rights to counsel and caution to which Mr. Williams indicated he understood.

34At the time of the search, it was unknown to the officers that the warrant had been granted for execution from 6:00 a.m. to 8:59 p.m. May 15, 2018. They only learned of the timeframe after its execution.

Charter Applications

35At the outset of the voir dire the applicant sought leave to cross-examine affiant DC Getty and sub-affiant DC Corsetti, both of whom were also involved in the investigation, as noted above. To facilitate the application, at the outset counsel agreed to a Step 6 procedure on the Garofoli application challenging the lawfulness of the search warrant. The court received and reviewed a copy of the redacted ITO, the unredacted ITO, and proposed judicial summary of the information excised to protect the identity of the confidential source. The redacted ITO and judicial summary were found to be sufficient to allow the applicant to challenge the search warrant. Further, leave to cross-examine the affiant and sub-affiant was denied in separate reasons.

Reasonable Probable Grounds to Arrest: Section 9

36The applicant claims he was arrested by the officers without reasonable probable grounds and therefore detained arbitrarily contrary to s. 9 of the Charter.

37In this instance, Detective Constable Getty, the arresting officer had information provided by the source through Detective Constable Corsetti. He had his own knowledge, which included his own observations and those of the other officers, such as Strilec, made during the investigation of the applicant. He had his police training and experience of more than 18 years.

38It was noted in R. v. Canary, 2018 ONCA 304 at paras. 21-23 that in assessing the reasonableness of an officer’s reasonable probable grounds to arrest there is a subjective and objective component.

39To fulfill the subjective component the officer must honestly believe the person committed an offence. Further, to fulfill the objective component, the officer’s belief must be objectively reasonable in the circumstances to the officer at the time of the arrest. When considering whether the officer’s subjective belief is objectively reasonable the court looks at the objectively discernible facts through the eyes of a reasonable person with the same knowledge, training, and experience of the officer. It is not a scientific or metaphysical exercise, but one that calls for the application of common sense, flexibility, and practical everyday experience.

40The reasonable grounds standard does not require a prima facie case, or proof beyond a reasonable doubt. The test is met where, based on all the circumstances known to the officer a “credibly based probability” replaces suspicion.

i) Debot Considerations

41Where the officer relies in part on confidential information for the arrest, as in this instance, the court must conduct a Debot analysis to look at the totality of circumstances to determine if the confidential information, relied on, is sufficiently credible, compelling, and corroborated to support reasonable grounds to arrest. The reliability of the informant’s information is assessed looking at the totality of the circumstances. As noted in R. v. Debot, [1989] 2 SCR 1140 at 1168 “weaknesses in one area may be compensated in the other two”.

42Compelling source information includes a level of detail, the extent to which confirmation exceeds what could be easily acquired, through casual acquaintance or rumour, the recency of the information, the extent to which the informant can explain the source of the information, and extent it is based on first-hand information.

43Corroboration is an inquiry of outside sources, not likely known to everyone or through rumour.

44Credibility is typically assessed by the motivation of the source, whether or not the source has a track record of successful tips, and the criminal record of the source including the absence or presence of offences of dishonesty.

45Let me now consider the source information and its basis, in part, as support for the reasonable grounds of the officer to arrest the applicant.

46First, as to the compelling nature of the information, considering the redacted ITO and judicial summary of the redacted information, the following information was available:

1. The confidential source knows a male that had been selling powdered cocaine, crack cocaine, and heroin. See Appendix D 7a(i) and (iii).
2. The male drives a black Nissan Altima. See Appendix D 7a(ii) and (v).
3. The male uses a cellular phone with number 647-978-6718, confirmed to be that of Dontay Williams. See Appendix D 7a(iv)
4. The male sells drugs in the area of Victoria Park and Sheppard Avenues. See Appendix D 7a(vi)
5. The male sells his product from the Nissan. See Appendix D 7a(vii).
6. He packages the cocaine in clear plastic bags. See Appendix D 7b(viii).
7. The confidential source identified Dontay Williams in a photograph as the male. See Appendix D 7b(v).
8. All of the criminality reported by the CS has recency – committed in 2018, ie. within 4½ months of arrest. See Appendix D 7(c),(d),(e),(f),(g) and (h).

47Accordingly, there is a high level of detail known by the source that exceeds that of a casual acquaintance or rumour. The information provided by the source and made known to the officer is compelling.

48The source information was corroborated by the police investigation.

1. It was confirmed that the applicant was the registered owner of a 2011 black Nissan Altima, plate number CDRJ 356. See Appendix C, (vi) and 7C (iii).
2. The cellphone number given by the source used by the male to conduct drug deals came back to the black Nissan Altima as confirmed in the investigation.
3. On May 13, 2018, during the police initial investigation the motor vehicle described by the source was observed in the area of Victoria Park and Sheppard Avenues, an area in which the male was said to be selling cocaine and heroin.
4. On May 14, 2018, the male identified in the photograph by the source was observed driving the motor vehicle described to 57 Ladner, in the area of Victoria Park and Sheppard Avenues where he met briefly with an unknown male who sat in the rear seat of his vehicle and left within 30 seconds.

49As to the credibility of the source.

1. The source did not have a record of being charged or convicted of any offences relating to obstruct justice, perjury or obstruct peace officer. See Appendix D 3.
2. The source was a known confidential source within the Toronto Police Service Intelligence Division with a proven track record of reliability. The source had provided information in the past regarding drug activity in the City which had been confirmed and corroborated through police checks.
3. It was made known that the information provided by the source was based on first or second-hand knowledge. In the judicial summary, each informational detail relating to the knowledge of the source with respect to the applicant was made known to the issue of justice as to whether it was first or second-hand information.

50While it was indicated in the ITO App. D 1) that the source had not been previously registered by the Toronto Police, information elsewhere in the ITO App. C confirmed that he was a source known to the Toronto Police who had provided information in the past regarding drug activity which had been confirmed and corroborated by police checks.

51Considering the totality of the circumstances the information provided by the source is compelling, corroborated, and credible. In considering the information provided by the source, as related to the MCU officers by Corsetti that the CS knew and identified the applicant, the applicant sold specific drugs, cocaine and heroin, from the rear of his 2011 black Nissan Altima in a specific area, the Victoria Park Avenue and Sheppard Avenue, together with the observations of Detective Constable Strilec radioed out to the other officers that an unknown male enter the back seat of the vehicle driven by the applicant and exited within 30 seconds, and his view there had been a hand-to-hand transaction, together with the policing experiences of Getty, Strilec and Corsetti provided reasonable grounds to arrest the applicant and Ms. Ramos. Detective Constable Getty, Strilec and Corsetti all testified they had a reasonable belief a drug transaction had taken place. Further, the officer’s subjective belief is objectively reasonable in consideration of all the circumstances at the time. On all of the information available at the time they had credibly based probability an offence had been committed.

52Accordingly, the applicant was not unlawfully detained contrary to s. 9 of the Charter.

Search Warrant - Sufficient Grounds to Issue

53The applicant submits that there were insufficient grounds to issue the warrant to search the Nissan Altima, and as such it was a warrantless search contravening s. 8 of the Charter.

54The standard for the issuance of a warrant is reasonable probable grounds, established upon oath to believe that an offence has been committed and that there is evidence to be found in the place of the search. On review, the question for the court is “whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge the application should have been granted at all by the authorizing judge”: See R. v. Araujo, 2000 SCC 65 at para. 54.

55In applying the test, the reviewing judge must take into account the authorizing justices may draw reasonable inferences from the evidence in the ITO: See R. v. Vu, 2013 SCC 60 at para. 16.

56In this instance, the affiant included in the ITO information from the confidential source previously described in these reasons as compelling, corroborated, and credible, that referred to the use of the black Nissan Altima in the course of selling narcotics. In addition, the affiant included the information as to the drugs seized from both the applicant and Ms. Ramos in the searches incidental to their arrests, both of whom had occupied the vehicle. They had been found in possession of crack cocaine and a large amount of Canadian currency. Accordingly, the information provided strong support for the reasonable belief that the search of the vehicle would afford evidence of an offence.

57In the result, I am satisfied, in consideration of all of the information provided by the CS and the investigation to the issuing justice, there were reasonable and probable grounds to believe evidence of an offence would be found in the vehicle. The search executed by warrant on the Nissan Altima was not a warrantless search contrary to s. 8 of the Charter.

Search Warrant – Hours of Execution

58The applicant contends that the police breached his s. 8 Charter rights by searching the vehicle outside of the timeframe permitted in the authorization. The applicant submits that the police committed a warrantless search because it was executed at a time contrary to the condition imposed by the issuing justice that it could only be conducted between the hours of 6:00 a.m. and 8:59 p.m. May 15, 2018. The search was outside the bounds of the authorization and as such a warrantless search in breach of s. 8 of the Charter.

59The Crown notes that the search warrant was granted under the authority of the Controlled Drugs and Substances Act s. 11(1) which states where a justice is satisfied that there are reasonable grounds to believe that a controlled substance or precursor . . . is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property, or thing and to seize it”

60The Crown submits that the court should consider the “doctrine of severability” where it has been applied in instances in which a part of a warrant ruled invalid or erroneous may be severed by the court, thereby leaving the remainder of the warrant valid.

61In this instance, the Crown submits that the timeframe if severed, which was not necessary in this instance, then the statutory default under the CDSA would be a warrant to be executed on the motor vehicle “at any time”. It would also be in keeping with the nature of the place searched. It was a motor vehicle, in which there is some level of privacy, but not to the same degree as that of a residence. It was an authorization for the search of a motor vehicle in a secure police lot, which did not require a night-time entry authorization.

62The Crown notes that in the case of R. v. Saint, 2017 ONCA 491 that a CDSA warrant that authorized a search at “any time” was not invalid on its face. In that case, a somewhat different circumstance, the applicant’s argument was that the CDSA warrant authorizing a search at any time was temporarily unlimited, and as such it was non-expiring, which would have permitted the police to conduct a search at any time in the future. As an unlimited warrant the subsequent search was warrantless and contrary to s. 8 of the Charter.

63Miller J.A. concluded that the CDSA warrant that authorized a search at “any time” was not invalid on its face – “that a date of execution can be inferred, and the failure to expressly set out a date is a technical fault that does not necessarily invalidate a warrant, is routed in common sense and I accept it”.

64There are other cases referred to in which time periods as set out in search warrants were misdated due to an apparent typographical error in the preparation of a warrant. In R. v. Guay, 1997 186 NBR (2nd) 377 (NBCA) the New Brunswick Court of Appeal considered a case where the police executed a warrant between 12:00 and 16:00 (noon and 4:00 p.m.) on the date stated in the warrant. The warrant, however included a timeframe of 20:00 and 21:00, (8:00 p.m. and 9:00 p.m.) clearly a brief timeframe, and outside the hours during which the warrant was in fact executed. Ayles J.A. writing for the court, concluded no breach had occurred:

I am of the opinion that the typographical error in the preparation of the search warrant, which had the effect of showing 21:00 hours and not 12:00 hours, amounts to a trivial error and is not a fundamental defect that would render the search warrant of no force or effect. Moreover, if the erroneous part of the warrant was deleted, the warrant would stand by itself so long as it was executed by day. The evidence was that the warrant was executed between noon and 4:00 o’clock in the afternoon on the day stated in the warrant”.

65In this instance, the warrant was executed on the date stipulated, May 15, 2018, although five hours before the stated timeframe began at 6:00 a.m. I accept the evidence of the officers, Getty, Strilec and Corsetti that it came to their attention only on a later date that there had been a time period stipulated, which had been a surprise to them, as it was a CDSA warrant to be executed on a motor vehicle secured in a police lot.

66Further, I accept that the timeframe imposed was unnecessary as a search was to be conducted on a motor vehicle in police custody which did not require any justification for a nighttime execution. The timeframe stipulated in the issued warrant reflected the default daytime timeframe required for a Criminal Code warrant.

67I accept that the timeframe included in the CDSA warrant in this case was done in error as there is no principled reason for a delay in the execution of the warrant at any time on May 15, 2018. This was not a situation that required a stipulation of a daytime timeframe for execution. I accept the suggestion made by the Crown to sever the stated daytime timeframe which will otherwise leave the warrant valid as executed “anytime” on May 15, 2018.

68The applicant’s s. 8 Charter right not violated by the inclusion of an unnecessary time frame.

Section 8 and the Level III Search

69The applicant contends that the Level III strip search conducted in this instance was not justified. It was an unnecessary, humiliating, and degrading breach of his s. 8 Charter right to be free from unreasonable search and seizure.

70In R. v. Golden, 2001 SCC 83 at para. 99 the Supreme Court set out three conditions that must be satisfied to render a strip search incidental to arrest as lawful:

Such searches are only constitutionally valid at common law where they are conducted as an incident to a lawful arrest for the purpose of discovering weapons in the detainee’s possession or evidence related to the reason for the arrest. In addition, the police must establish reasonable and probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest. Where these preconditions to conducting a strip search incident to arrest are met, it is also necessary that the strip search be conducted in a manner that does not infringe s. 8 of the Charter.

71Further, lawful custodial strip searches are not limited to searching for weapons or other evidence relating to the offence rather, as noted in R. v. Francis, 2022 ONCA 729 at para. 45:

A custodial strip search is animated by concerns related to the safety and well-being of the prison population. Where individuals are entering into a prison environment, there is “a greater need to ensure that they are not concealing weapons or illegal drugs on their person prior to their entry”: Golden, at para. 96. Moreover, as this court explained in R. v. Gerson-Foster, 2019 ONCA 405, at para. 109, this risk can arise from any prisoner, regardless of why they were arrested. Hence, unlike strip searches incident to arrest, custodial searches are not limited by the “purpose of the arrest.

72The applicant contends that the search he was subjected to was akin to the strip search conducted in the case of R. v. Mullings, 2019 ONSC 2408, which resulted in a stay of proceeding pursuant to s. 24 (1) of the Charter.

73In that instance, the accused, a female bank employee charged with fraud and breach of trust over $5,000.00, was strip searched in a manner the court found to be “offensive to societal notions of fair play and decency” and that “proceeding with a trial in the face of the conduct would be harmful to the integrity of the justice system”.

74At the time of the search Ms. Mullings was pregnant. She had no criminal record or any indication of violent conduct or use of drugs or weapons. While naked from the waist down she was required to perform squats. Her bra was seized from her as an alleged potential weapon leaving her without her undergarments. The search was conducted in a visually private area but audible to male officers in the booking area. The search was not properly documented. The court found that the strip search exceeded the bounds of appropriate conduct by unduly humiliating the accused.

75I find the Mullings case to be significantly different on the facts and distinguishable from the circumstances that prevailed in this instance. Constable Conlan advised Staff Sergeant John that the accused had been placed under arrest for possession of a Schedule 1 drug for the purpose of trafficking, (P4P). Further, during the search drugs were found. Staff Sergeant John told the accused that the request for a strip search had been made and based on the information he would be searched. She also advised him the search was for safety purposes and directly asked him if he had anything that would be harmful. Staff Sergeant John testified that as a result of the charges Mr. Williams would be held for a show cause hearing and as such would be going into custody. It was necessary to ensure he did not possess anything that could be harmful to him or others.

76The granting of a Level III search was not just because of the nature of the charge, but because he had been found to have possessed drugs and he was going to be held in custody for a bail hearing. The search was necessary to ensure he was not in possession of anything else that could cause harm to him or others in custody.

77There were reasonable and probable grounds to justify a strip search and as reflected in the video recording of the booking procedure, together with the evidence of Constable Slugg as to the manner by which the search was performed, it had been carried out in a reasonable and respectful manner preserving the privacy and dignity of the applicant. It took less than 5 minutes, during which it was conducted in a private area, closed off by a curtain. One piece of clothing at a time was removed, inspected, and returned. Then the next article of clothing. He was never fully naked or touched physically.

78In circumstances in which he had been arrested in possession of a potentially harmful substance it was reasonable to conduct a strip search in order to ensure he was not carrying any contraband into custody which could jeopardize his safety and the safety of other persons. The Level III search was lawful as conducted in this case and not contrary to his s. 8 right to be free from unreasonable search and seizure.

Section 10(b) – Right to Counsel

79The applicant submits that the police breached his s. 10(b) Charter right of right to counsel by failing to fulfill their implementational obligation to provide access to counsel by a delay of over two hours.

80The applicant was arrested at 5:25 p.m. when he was given his rights to counsel by Detective Constable Getty from memory, which I note parenthetically, he was able to recite verbatim on the voir dire. At 5:42 p.m. after the arrival of the uniformed officers summoned to transport the applicant to the Division, Constable Conlan repeated his rights to counsel and cautions, read from his notebook, at which time Mr. Williams advised he wished to speak to counsel Michael Strathman and provided a phone number. At 7:36 p.m. the applicant was given access to speak privately with Mr. Stratham by telephone in the CIB interview room.

81The duty of the police to inform a detained person of the right to counsel arises immediately after arrest or detention. They have a positive duty to facilitate contact with counsel at the first reasonable opportunity once the detainee requests to speak to counsel: See R. v. Suberu, 2009 SCC 33 at paras. 37 – 42.

82As noted in R. v. Rover, 2018 ONCA 745 at paras. 26-28 there may, however, be practical impediments to the police’s ability to facilitate access to counsel and delays may nevertheless be reasonably necessary. The determination as to whether a s. 10(b) breach has occurred and whether the officers made an effort to facilitate access is made on a case-by-case basis: See R. v. Taylor, 2014 SCC 50 at para. 24.

83Recently, in R. v. Keshavarz, 2022 ONCA 312 at para. 67 it was noted that the police are under no obligation to implement the right to counsel until after the party was in a safe and secure location where a private call with counsel could be facilitated. In that case where contact with counsel occurred about two hours after the accused’s arrest, and after the booking procedure had been completed and his safety and the safety of all had been secured, it was found to have been an acceptable delay.

84Here, I accept the evidence of Constable Conlan that he was aware of the obligation to provide access to counsel on Mr. Williams giving him the name of his lawyer and a phone number. However, in the circumstances of the arrest the applicant could not be afforded privacy to make a telephone call at the scene of the arrest. I also accept the evidence of Constable Domingo, and that of Constable Conlan that they were delayed at the scene initially because Constable Domingo had to maintain custody of Ms. Ramos, while they awaited the arrival of a female officer to conduct the appropriate pat-down search incidental to arrest and to transport Ms. Ramos separately to the Division.

85One officer, Strilec thought Sgt. Farrell, the female officer arrived before Domingo and Conlan however, as it was Domingo who had to try to control an uncooperative Ms. Ramos, I accept his and Conlan’s evidence that they had to wait for Sgt Farrell’s arrival to take custody and pat search Ms. Ramos. Further, the noted time of her arrival, 5:55 p.m. was later than that of Domingo and Conlan at 5:42 p.m.

86There was also the unexpected delay of Constable Conlan having to assist Sergeant Farrell in inputting the appropriate information to the on-board computer of her scout car. A further delay occurred as a result of the need to await the booking procedure to be completed for Ms. Ramos and then the booking procedures for Mr. Williams before access to a private call with his lawyer could be made.

87I accept the evidence of the officers that it was necessary to have a Level III search conducted to ensure the safety of Mr. Williams as well as others he may have come in contact with while in custody. He had been found to have drugs in his possession on arrest and he was to be held in custody with others pending a bail hearing.

88Once the booking procedure was completed, he was taken to the interview room by Constable Conlan who subsequently located the correct number for Mr. Williams’ counsel of choice, made contact, and in turn provided private access for the applicant to speak to counsel.

89The delay in the applicant’s contact with counsel due to having to be transported to the Division, paraded during the booking procedure, searched, and then safely secured in a private room before implementing the right to counsel was reasonable in the circumstances of this case. I note as well that there was no attempt by the police at any time prior to his having contact with counsel to elicit information from him.

90I am satisfied that there was no s. 10 breach in this case.

91In the result, the applicant’s Charter applications for a stay of proceeding remedy pursuant to s. 24(1), or the exclusion of evidence pursuant to s. 24(2) of the Charter for breaches under ss. 8, 9 and 10(b) are dismissed.

A.J. O’Marra J.