COURT FILE NO.: CR-22-90000268-0000 DATE: 20240523

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – HIEU THIEN CAO

Counsel: S. Tsai, counsel for the Crown K. Schofield and N. Decock, counsel for Mr. Cao

HEARD: February 20, 21, 22, & 26, 2024

Reasons on Application to Exclude Evidence Pursuant to ss. 8, 10(b) and 24(2) of the Canadian Charter of Rights and Freedoms

H. McArthur J.:

Introduction

[1] On July 29, 2020, police officers executed a search warrant at the home of Hieu Thien Cao. They entered by knocking down a door with a battering ram – what is often referred to as a “dynamic” or “hard” entry. Inside the home, police located 893 grams of cocaine, 1,160 grams of phenacetin, and $52,475 in Canadian currency. As a result, Mr. Cao was charged with one count of possession of cocaine for the purpose of trafficking and one count of possession of proceeds of crime.

[2] Mr. Cao now brings an application to exclude the evidence pursuant s. 24(2) of the Canadian Charter of Rights and Freedoms, arguing that the hard entry method used by the police violated his right to be free from unreasonable search and seizure pursuant to s. 8 of the Charter. Mr. Cao also argues that the police violated his right to counsel pursuant to s. 10(b) of the Charter by failing to facilitate contact with counsel immediately after he asserted his right. Further, Mr. Cao argues that the police breached his wife’s and son’s s. 9 Charter right to be free from arbitrary arrest, a factor he asserts I should consider when determining if the evidence should be excluded.

[3] The Crown counters that the hard entry was reasonable in the circumstances, and that concerns about the destruction of evidence and police safety justified the technique used. The Crown further argues that Mr. Cao said that he did not wish to speak to counsel and as a result, the police had no obligation to facilitate contact. If I determine that Mr. Cao’s Charter rights were violated, the Crown argues that I should disregard any alleged violations of his wife’s and son’s Charter rights when considering whether the evidence is admissible. In any event, even if I consider any alleged breaches to the rights of Mr. Cao’s family, the Crown argues that the evidence should be admitted.

[4] If the evidence is admitted, defence counsel concedes that the evidence is sufficient to establish both charges against Mr. Cao beyond a reasonable doubt. If the evidence is excluded, the Crown concedes that Mr. Cao must be acquitted.

The Evidence

[5] On July 29, 2020, officers from the Royal Canadian Mounted Police (the “RCMP”) executed a search warrant at Mr. Cao’s home. The search was related to a large investigation called Project O’Swordtail. As part of this investigation, officers executed search warrants at four other addresses at the same time.

[6] A different team leader headed each search warrant. Each team leader was responsible for deciding what method of entry would be used. The manner of search used by the different teams varied. Two of the other homes searched that day were entered using the hard method. A “knock-and-announce” entry was used for two of the other homes.

[7] The team leader for the search warrant at Mr. Cao’s home was Officer Michael Di Iorio. Officer Di Iorio learned that he would be the team leader on July 27, 2020, at a morning briefing. The briefing lasted 29 minutes. By the end of the briefing, he had determined that he would use a hard entry to gain access to Mr. Cao’s home.

[8] Officer Di Iorio did not take detailed notes of what was discussed at the briefing, or why he decided that a departure from a knock-and-announce entry was required. Nor did he document at any time before the search the reasons why he decided to use a hard entry. He testified that he was unaware that he had any obligation to note down his decision-making process. Approximately two weeks before the trial, at the request of the prosecution, Office Di Iorio prepared a will-state where, for the first time, he set out his reasons for using a hard entry.

[9] According to Officer Di Iorio, he decided to enter Mr. Cao’s home by breaking down the door for three reasons. First, he was concerned about the destruction of evidence. The search warrant specified that there were reasonable grounds to believe that Mr. Cao possessed cocaine. Officer Di Iorio believed that cocaine could be easily destroyed, a factor that played into his decision to use a hard entry. Mr. Cao also had a previous drug conviction. Officer Di Iorio believed that the chances of destruction of evidence increased when the suspect had a related record.

[10] Second, Officer Di Iorio said he was concerned about officer safety. In his experience, drugs and violence are often associated. That said, he did not have any specific information suggesting that Mr. Cao possessed any weapons or was linked to violence. Officer Di Iorio failed to conduct any firearms checks to see if Mr. Cao was legally entitled to possess guns.

[11] Third, Officer Di Iorio said he had never worked with his search team before. He only learned who was going to be conducting the search on the morning of July 29. This third reason was linked to the first two reasons advanced. Since he did not know his team, he had heightened concerns about the potential destruction of evidence and officer safety. However, when he met his team, he learned that they were experienced search officers, who were in his estimation, “capable” officers. That, however, did not cause him to revaluate whether a hard entry was required.

[12] The other homes searched that day as part of the O’Swordtail investigation also involved allegations of cocaine. The suspects at the other addresses also had criminal records involving drugs. Officer Di Iorio could not explain why different entry methods were used at the other residences. He could not say why other officers concluded that the knock-and-announce entries they used were appropriate. Ultimately, he said the decision to use a hard entry for Mr. Cao’s home rested with him.

[13] Officer Di Iorio was cross-examined about his understanding of the law surrounding hard entries. As set out below in my analysis, the law is clear that officers should generally knock and announce, unless exigent circumstances exist. This is a long-standing legal principle. Yet Officer Di Iorio was unaware of the knock-and-announce rule. He had been an officer for 11 years at the time of the search. While he said he had been trained in entry methods, he did not know that a hard entry is considered exceptional. He also had no knowledge that officers are obliged to explain their reasons for departing from the knock-and-announce rule.

[14] Defence counsel questioned Officer Di Iorio about his knowledge of a Notification Letter authored by the Office of the Independent Police Review Director in November 2012 about the use of hard entries. The letter was drafted to identify and remedy seemingly systemic “deficiencies” in the execution of search warrants. The letter highlighted that some police service’s policies were silent on the issue of hard entries and departures from the knock-and-announce rule. Some police services did not have a clear approval process for departing from the knock-and-announce rule, nor did they make it clear that such entries should be exceptional and not the norm. Further, many did not provide clear guidelines for record keeping or documentation of the process. The letter underscored that many police officers did not adequately document their assessment of why they determined that a hard entry was warranted and were unable to properly articulate their reasons for departing from the knock-and-announce approach.

[15] As I watched the cross-examination of Officer Di Iorio, it was clear that the constitutional issues surrounding hard entries were foreign to him. He seemed genuinely shaken when confronted with the long-standing law in this area.

[16] At the time officers broke down the door to gain access to his home, Mr. Cao was inside with his pregnant wife, Thi Queyen Vu, and their 15-year-old son, Adrian. It was about 5:00 a.m. After breaking down the door, officers swarmed in the home, calling out “Police! Search Warrant”, and then dispersed to clear the home.

[17] Officer John White found Mr. Cao in the kitchen, wearing only boxer shorts. Officer White told Mr. Cao he was under arrest and gave him his rights to counsel. When asked if he wished to speak to a lawyer, Mr. Cao responded, “Yes.” Officer White told him he would allow him to talk to a lawyer once he could find somewhere private for him to have that conversation. While Officer White said he told other officers about Mr. Cao’s request, he could not recall which officers.

[18] Officer Darryl Hawbolt found Ms. Vu and Adrian at the top of the stairs. Ms. Vu had her arm around her son, whom Officer Hawbolt perceived to be a “young boy.” Despite Adrian’s age, he arrested both, as he had been instructed to arrest everyone in the house. Both were also handcuffed. While there was some dispute over whether Adrian was handcuffed, I am persuaded an officer restrained him in this manner. Officer Di Iorio’s evidence is that at some point he saw that Adrian was cuffed but later the handcuffs were removed. Both Ms. Vu and Mr. Cao were eventually taken to the police station. They would have remained in handcuffs during transport. Yet a set of handcuffs was shown on the kitchen counter on the search video that started at 6:24 a.m., after they were both transported. In my view, this supports the evidence that an officer initially handcuffed Adrian and that the cuffs were later removed.

[19] Mr. Cao, Ms. Vu, and Adrian were moved to the living room, where they were seated on couches. Officer Di Iorio then read them a prepared script setting out the primary and secondary cautions and their right to counsel. To assist if anyone wished to speak to a lawyer, Officer Di Iorio had arranged for a cruiser with a cell phone to be on scene. However, he did not tell Mr. Cao or Ms. Vu that he had made those arrangements. Officer Di Iorio testified that was unaware that Mr. Cao had already told Officer White that he wished to speak to counsel. Thus, he did not immediately allow Mr. Cao to speak to counsel in the cruiser. Instead, as he had previously planned, he read the rights to counsel verbatim from his script. He said that in response to the question of whether he wished to speak to counsel, Mr. Cao responded, “No, I don’t. I call one later.” Given that he was unaware that Mr. Cao had already asserted his right to counsel with Officer White, Officer Di Iorio did not follow up to clarify if Mr. Cao was changing his mind about whether he wished to speak to a lawyer.

[20] Ms. Vu testified that Officer Di Iorio did not read from a script and did not inform them of their rights to counsel. However, I am unable to accept her evidence on this point. Officer Di Iorio had a specific plan he intended to follow. That plan included reading from a prepared script. He also had a COVID-19 screening health and safety check script that set out several questions. While Ms. Vu says that Officer Di Iorio did not read anything regarding the right to counsel, she recalls him asking the questions about COVID-19. It seems unlikely that the officer would follow his plan regarding the COVID-19 questions yet completely fail to read the right to counsel questions.

[21] Officer Di Iorio had no reason to deviate from his strategy and every reason to follow his plan. Ms. Vu was clearly traumatized by the events. She was ten-weeks pregnant at the time of the search and had been woken up in the early morning hours by officers breaking down the door. She and her husband were handcuffed and arrested. Her 15-year-old son was initially handcuffed and arrested. While I do not question her credibility, given the emotional intensity of events, I find that her recollection of events is unreliable. I instead accept Officer Di Iorio’s account that he read the rights to counsel from his script. I also accept that Mr. Cao responded as testified to by Officer Di Iorio.

[22] I turn now to my analysis of the issues raised in this matter.

Analysis

Issue One: Did the hard entry violate Mr. Cao’s s. 8 right to be free from unreasonable search and seizure?

[23] Section 8 of the Charter provides that everyone has the right to be free from unreasonable search and seizure. To be reasonable under s. 8 of the Charter, a search must be authorized by law, the authorizing law must itself be reasonable, and the search must be conducted in a reasonable manner: R. v. Collins, [1987] 1 S.C.R. 265, at p. 278. The issue in Mr. Cao’s matter is whether the hard entry used to gain access to his home was reasonable.

[24] The law is clear that except in exigent circumstances, police officers must make an announcement before forcing entry into a dwelling house: R. v. Cornell, 2010 SCC 31, at para. 18. As highlighted in R. v. Pan, 2012 ONCA 581, at para. 35, the knock-and-announce rule has been part of our law for over 400 years. As explained in Pan, at para. 38, the rule can be traced back to the decision in Semayne’s Case (1604), 5 Co. Rep. 91 a, 77 E.R. 194 (K.B.), at p. 195: “In all the cases when the King is party, the sheriff (if the doors be not open) may break the party’s house, either to arrest him, or to do other execution of the K.’s process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors.”

[25] Almost 50 years ago, Dickson J. (as he then was) outlined the knock-and-announce rule in Eccles v. Bourque, [1975] 2 S.C.R. 739, at pp. 746-47. He explained that apart from exigent circumstances, police officers should announce themselves before forcing entry into a residence. In the ordinary case that means that officers must give (i) notice of their presence by knocking or ringing the doorbell, (ii) notice of authority, by identifying themselves as law enforcement officers, and (iii) notice of purpose, by stating a lawful reason for entry. The framework set out in Eccles has been absorbed into our Charter jurisprudence: see R. v. Genest, [1989] 1 S.C.R. 59; R. v. Pilleggi, 2021 ONCA 4, at para. 24.

[26] Approximately 15 years ago, the Supreme Court returned to a discussion of the knock-and-announce rule in Cornell. As Cromwell J. explained for the majority of the court, at paras. 19 to 20, the rule is not absolute. Police officers are not required to put their lives or safety on the line if there is even a low risk of weapons being present. However, when the police depart from the knock-and-announce rule, they bear the onus of explaining the necessity for the departure. If challenged, the Crown must lay an evidentiary framework to support that the police had reasonable grounds to be concerned about potential harm to themselves or the occupants, or about the destruction of evidence.

[27] In Pileggi, at para. 23, the court noted that officer safety, public safety, and the prevention of the destruction of evidence may relieve the police of their obligation to knock and announce. The greater the departure from the principles of announced entry, the heavier the onus on the police to justify their approach. The evidence to support such behaviour must be apparent in the record and available to the police at the time of their entry. That is, the Crown cannot rely on ex post facto justifications.

[28] In the present case, Officer Di Iorio failed to make any contemporaneous record of why he determined that a hard entry was required. As he acknowledged in cross-examination, that makes it difficult to assess the reasonableness of his decision and whether he was justified in departing from the knock-and-announce rule.

[29] Officer Di Iorio provided three reasons for his decision in his will-state and testimony before me. First, he said that he was concerned that the cocaine he believed was in the residence could be destroyed. However, as noted recently in R. v. Harper, 2024 ONSC 925, at para. 33, the possibility that Mr. Cao could have disposed of evidence cannot, on its own and without consideration of the specifics of the case, justify the use of a hard entry. The simple fact that drugs are the target of the search warrant cannot on its own allow for a hard entry, as that would amount to a blanket position where hard entries are permitted any time drugs are alleged to be in a residence: R. v. Ruiz, 2018 ONSC 5452, at para. 51. The police must make some attempt to determine whether there is a real likelihood that without a hard entry the occupants will have the time, ability, and inclination to conceal or destroy the evidence sought by the police: R. v. Russell, 2024 ONSC 529, at para. 58.

[30] Here, Officer Di Iorio failed to turn his mind to several factors that might have impacted on this issue. He did not investigate the layout of the home, apart from looking at a picture. Officer Di Iorio’s lack of familiarity with the design of the home is evident from the fact that at first, he mistakenly entered the garage rather than the home. After breaching the door to the garage, he realized his error, and then found another door leading into the residence, which his team then broke to enter. Officer Di Iorio did not know how many people would be in the home, or indeed, if anyone was home. He also did not evaluate whether the fact that large amounts of cocaine were suspected to be in the residence might impact the ability of the occupants to destroy evidence. That is, small bags of cocaine might be easily flushed down the toilet, but large bricks of cocaine would be more difficult to dispose of. This is unlike the situation in Pileggi, where the drugs sought were pills, which the officer knew could be easily flushed down the toilet.

[31] While the search warrant listed electronic devices as an item to be searched for, there is no evidence that concerns about the destruction of electronic evidence were discussed in the team meeting or considered by Officer Di Iorio. That is distinct from the case of R. v. Barrett, 2021 NLSC 123, where the police team discussed the risk of the destruction of digital and electronic evidence during their morning briefing. However, even if Officer Di Iorio did advert to electronic evidence, as noted in R. v. Musara, 2022 ONSC 3190, at para. 136, electronic devices are now “ubiquitous.” Placing too much emphasis on the risk that electronic devices will be destroyed could justify a hard entry in almost all cases.

[32] Second, Officer Di Iorio testified that he was concerned about officer and occupant safety, which contributed to his decision to use the hard method to enter the home. He highlighted that this was a drug investigation, and that drugs and violence often go hand in hand.

[33] But generic concerns about officer safety cannot on their own justify a departure from the knock-and-announce rule. As explained in Genest, at para. 89, the consideration of the possibility of violence must be carefully limited and should not amount to a carte blanche for the police to completely ignore all restrictions on police behaviour. In any serious police investigation involving drugs, the spectre of firearms can be raised. A finding that the mere suspicion that there may be firearms, based on the connection between guns and drugs, justifies a hard entry would effectively obliterate the protections afforded by s. 8 of the Charter: R. v. Silveira, [1995] 2 S.C.R. 297, at para. 87, per La Forest J. (dissenting).

[34] Officer Di Iorio did little to investigate whether there were specific articulable concerns about potential risk to officer safety. He did not know if there were any dogs: see in contrast, Genest, at paras. 11 and 49. He did not turn his mind to the fact that while Mr. Cao had a record, it was dated and did not involve any crimes of violence. He did not consider that the search warrant issued did not mention weapons.

[35] Officer Di Iorio also neglected to conduct any firearms checks to see if Mr. Cao or Ms. Vu had any legal firearms. While it is true that many firearms are possessed illegally, the fact that the officer did not bother to check if there were any legal guns associated to the residence is troubling. If he had truly turned his mind at the time to whether there was a real risk of violence, it seems he would have done this simple investigative check. I contrast the approach taken by Officer Di Iorio with that of the officers who executed a search warrant that day at 17 Beaumont Court. The officers there conducted firearms checks before the search. The suspect at that residence had a criminal record and a registered firearm. Yet officers conducted a knock-and-announce entry. Officer Di Iorio’s failure to check if there were any legal firearms associated to Mr. Cao or Ms. Vu suggests that his decision to use a hard entry was not based on a reasoned consideration of the circumstances.

[36] Third, Officer Di Iorio testified that he did not know his team, which factored into his decision to conduct a hard entry. In my view, his evidence on this point was problematic for two reasons. First, the exigent circumstances claimed here by Officer Di Iorio arose largely out of the structure of the operational plan. Officer Di Iorio testified that the RCMP do not have a regular search team and often use local police forces to assist with their searches. Thus, the common RCMP approach of using unfamiliar team members created the exigent circumstance Officer Di Iorio relied upon. Several cases have noted that the police cannot rely on exigent circumstances they have created to relieve them of their constitutional obligations: Silveira, at paras. 53, 69, and 85, per La Forest J. (dissenting); R. v. Phoummasak, 2016 ONCA 46, at paras. 14-15; R. v. Hobeika, 2020 ONCA 750, at paras. 53-55.

[37] Secondly, and more importantly, Officer Di Iorio met his team on the morning of the search. He learned then that the officers were on the Drug Squad and had conducted many similar searches in the past. They were experienced. As he said, they were “good officers who would have done their jobs.” If he initially had concerns because he did not know if his team had experience, that concern could and should have been revaluated upon learning the members of his team. But Officer Di Iorio did not turn his mind to whether the experience of his team militated against departing from the knock-and-announce rule. That suggests to me again that Officer Di Iorio’s initial decision was based on a pre-ordained approach rather than an individualized assessment of whether a hard entry was required in Mr. Cao’s case.

[38] Looking at the totality of the evidence, it seems clear that Officer Di Iorio never contemplated the possibility of knocking on the door. Officer Di Iorio failed to turn his mind to the specific facts surrounding Mr. Cao in determining whether a hard entry into his home was justified. Rather, as in the case of R. v. Bahlawan, 2020 ONSC 952, at para. 41, the decision to use a hard entry was a foregone conclusion. As Gomery J. (as she then was) found in Bahlawan, I cannot uphold a decision-making process that simply did not occur.

[39] The use of a hard entry to gain access to Mr. Cao’s home was unreasonable and violated his s. 8 right.

Issue Two: Did the police breach Mr. Cao’s s. 10(b) right to counsel?

[40] Section 10(b) of the Charter provides that upon arrest or detention, everyone has the right “to retain and instruct counsel without delay and to be informed of that right.”

[41] Mr. Cao was arrested by Officer White at 5:03 a.m. He asserted his right to counsel approximately three minutes later, at 5:06 a.m. He was not provided an opportunity to speak to counsel until approximately 8:13 a.m., about three hours later.

[42] As explained in R. v. Taylor, 2014 SCC 50, at para. 24, the duty to facilitate access to a lawyer arises immediately upon the detainee’s request to speak to counsel. The arresting officer is under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. Where there has been a delay in facilitating access to counsel, as there was in Mr. Cao’s case, the Crown bears the onus of showing that the delay was reasonable in the circumstances: Taylor, at para. 24; Hobeika, at para. 73; Pileggi, at para. 87.

[43] In R. v. Rover, 2018 ONCA 745, the court held that in some circumstances a delay in providing a detainee access to counsel may be justified. Circumstances where a delay may be justified often relate to police safety, public safety, or the preservation of evidence in the context of search warrants: at para. 26.

[44] Rover emphasized two requirements to delay implementing access to counsel. First, general or non-specific concerns applicable to virtually any search cannot justify delaying access to counsel. Instead, the police may only delay access to counsel after an assessment of the specific circumstances in the particular case that provide a reasonable basis to conclude that police safety, public safety, or the preservation of evidence justifies some delay in granting access to counsel. Second, even where case-specific circumstances exist that justify delay in granting access to counsel, the police must also take reasonable steps to minimize that delay: at para. 27.

[45] In Pileggi, the court concluded that a three-hour delay in providing the opportunity to consult counsel, resulting from “collective negligence ... in allowing the appellant’s s. 10(b) rights to fall through the cracks” was a serious breach even though a police officer not only contacted duty counsel, but kept the accused informed of the efforts to engage counsel so that he was not “left to languish alone interminably”: at paras. 114, 119, and 124.

[46] In this case, the defence argues that, as in Pileggi, there is a serious s. 8 breach because police did not facilitate Mr. Cao’s right to counsel for three hours. In my view, however, unlike in Pileggi, the delay in this case did not stem from negligence. Rather, the evidence suggests that the delay was reasonably related to two specific factors. First, the need to secure the scene. Second, Mr. Cao’s later comments suggesting he did not wish to speak to a lawyer immediately. I will address each in turn.

[47] First, when Mr. Cao first asserted his right to counsel at 5:06 a.m., the scene was chaotic. Officers were still clearing the home to ensure that all occupants were accounted for. Mr. Cao was dressed only in boxer shorts. While Officer Di Iorio had arranged for a cruiser with a phone to be on site to facilitate access to counsel, it was reasonable for officers to secure the scene before allowing him to speak to a lawyer. As Officer Di Iorio said, he checked to make sure that no one else was hiding in the home. He also ensured that clothing was obtained for Mr. Cao. Ms. Vu was allowed to use the bathroom, but officers first had to ensure that there was nothing in the bathroom that could harm the police or that was of evidentiary value that could be destroyed.

[48] At approximately 5:30 a.m., about 24 minutes after Mr. Cao asserted his right to counsel, Officer Di Iorio formally re-read Mr. Cao his right to counsel. In those 24 minutes, the officers secured the scene, got clothing for Mr. Cao, allowed Ms. Vu to use the bathroom, and gathered all three occupants and seated them in the living room. It seems that Officer White did not tell Officer Di Iorio that Mr. Cao had already asserted his right to counsel. He should have. His failure to do so meant that Officer Di Iorio did not preface his comments to Mr. Cao by saying something along the lines of, “I understand you said you wish to speak to counsel.” But while unfortunate, I cannot find that this is amounts to a constitutional violation. Nor can I find any constitutional fault in Officer Di Iorio’s plan to re-read the rights to counsel from the prepared script. And when Officer Di Iorio re-read Mr. Cao his rights and asked if he wished to speak to counsel, Mr. Cao responded, “No, I don’t. I call one later.”

[49] In R. v. Sinclair, 2010 SCC 35, at para. 27, the court explained that the police obligations flowing from s. 10(b) are not absolute. Unless a detainee invokes the right and is reasonably diligent in exercising it, the duty on the police to provide a reasonable opportunity to consult counsel will not arise: see also, Taylor, at paras. 23-24; R. v. Baig, [1987] 2 S.C.R. 537, at para. 6; R. v. Willier, 2010 SCC 37, at paras. 30, 33; R. v. Fuller, 2012 ONCA 565, at para. 17. Absent proof of circumstances indicating that the defendant did not understand their right to retain counsel when they were informed of it, the onus rests with them to prove that they asked for the right, but it was denied: R. v. Dykstra, 2015 ONSC 6012, at para. 56.

[50] Several cases have considered wording by the defendant similar to the words used by Mr. Cao at approximately 5:30 a.m. when he responded to whether he wished to speak to a lawyer by saying, “No, I don’t. I call one later.” In Dykstra, when asked if he wished to speak to a lawyer, the defendant replied, “No, not right now.” At para. 80, the court found that this did not trigger the obligation to facilitate a call with counsel, explaining that expressly declining the immediate opportunity to consult with counsel but reserving the right to do so at some later time, is not an assertion of the right to counsel.

[51] In R. v. Owens, 2015 ONCA 652, the defendant responded to the question of whether he wished to speak with a lawyer by saying, “No, not right now.” The Court of Appeal held that it was open to the trial judge to find that the appellant’s statement did not qualify as an invocation of the right to counsel: at para. 29.

[52] In R. v. Willoughby, 2023 ONSC 4364, at para. 44, when asked if he wished to speak to counsel, the defendant said, “Not right now, maybe after I see a doctor at the hospital.” The court found that this did not amount to an invocation of the right to counsel: at para. 45.

[53] In R. v. Simpson, 2023 ONCA 23, when asked if he wished to speak to counsel, the defendant responded, “I will at some point.” Again, the court found that it was open to the trial judge to find that this did not qualify as in invocation of the right to counsel: at paras. 10-11.

[54] In my view, Mr. Cao’s response to Officer Di Iorio was not an invocation of the right to counsel. He did not testify that he was confused or did not understand Officer Di Iorio. While he did initially ask to speak to counsel, he later told the police that he did not wish to speak to a lawyer at that time but would later. He was not diligent in asserting his right and the officers acted appropriately in light of his response.

[55] Given the need to secure the scene and Mr. Cao’s comment at 5:30 a.m. that he did not wish to speak to counsel immediately, in my view the Crown has explained the delay in facilitating contact with counsel. Mr. Cao’s s. 10(b) rights were not violated.

Issue Three: Should the evidence be excluded pursuant to s. 24(2) of the Charter?

[56] Section 24(2) provides that where evidence was obtained in a manner that infringed or denied any Charter rights, that evidence shall be excluded if it is established, having regard to all the circumstances, its admission would bring the administration of justice into disrepute.

[57] While the discovery of the cocaine and the cash were not causally related to the s. 8 breach, I am satisfied that the evidence is sufficiently linked, temporally and contextually, to meet the threshold requirement of “obtained in a manner” that infringed or denied a Charter right or freedom: R. v. Pino, 2016 ONCA 389, at para. 74.

[58] The framework for the application of s. 24(2) was set out by the Supreme Court in R. v. Grant, 2009 SCC 32. The court must consider three lines of inquiry: (i) the seriousness of the Charter-infringing state conduct; (ii) the impact on the Charter-protected interests of the defendant; and (iii) society’s interest in an adjudication on the merits.

[59] I will consider each in turn.

(i) The Seriousness of the Charter-Infringing State Conduct

[60] The first inquiry focuses on the extent to which the state conduct at issue deviates from the rule of law: R. v. McColman, 2023 SCC 8, at para. 57. The central question to consider is whether the police conduct involved misconduct from which the court should be concerned to dissociate itself: McColman, at para. 58; R. v. Harrison, 2009 SCC 34, at para. 22.

[61] In evaluating the gravity of the state conduct at issue, a court must “situate that conduct on a scale of culpability”: R. v. Paterson, 2017 SCC 15, at para. 43; McColman, at para. 58. To properly place state conduct on this scale or spectrum of culpability, the court must ask whether the presence of surrounding circumstances attenuates or exacerbates the seriousness of the state conduct: McColman, at para. 58; Grant, at para. 75. A holistic analysis is required to properly assess the gravity of the state conduct.

[62] In the present case, there are several factors that render the breach more serious. Officer Di Iorio failed to note his decision-making process. He did not develop a documented plan with clearly stated reasons. He did not appear to consider any alternative approaches. Of note, he did not understand that he was obliged to assess whether a less intrusive entry method was warranted.

[63] While it is not to be expected that police officers be versed in the minutiae of the law concerning search warrants, they should be aware of those requirements that the courts have held to be essential for the validity of a warrant: Genest, at para. 46. Here, well-established common law and constitutional limitations on the powers of the police to search were ignored. Despite being an experienced officer of 11 years, Officer Di Iorio lacked any understanding of the limits on police authority to use hard entries into homes. He did not know that knock-and-announce was the general rule. He did not understand that hard entries should only be used in exigent circumstances. As explained in Grant, at para. 75, ignorance of Charter standards must not be rewarded or encouraged, and negligence or wilful blindness cannot be equated with good faith.

[64] Moreover, the decision was left entirely to Officer Di Iorio with no supervisory oversight. The variation in how the five search warrants were executed in this matter highlights the problem. A hard entry was used to access Mr. Cao’s home. Yet two other homes searched that day were entered using the knock-and-announce method. There was little to distinguish those homes from Mr. Cao’s residence. The suspects there were also alleged to have been involved in cocaine offences. As with Mr. Cao, the suspects there had convictions for drug matters. Yet Mr. Cao and his family were subjected to a hard entry when those suspects were not. Whether residents would be subjected to the traumatic and invasive hard entry method depended on the team leader’s decision. The lack of supervisory oversight led to an arbitrary approach to hard entries in Mr. Cao’s matter.

[65] The conduct of the police in this matter falls at the more serious end of the spectrum.

[66] This factor strongly favours exclusion.

(ii) The Impact on Mr. Cao’s Charter-Protected Interests

[67] The second inquiry calls for an assessment of the extent to which the breach undermined the interests protected by the right infringed.

[68] Officers would have discovered the evidence without the breach. The impact on Mr. Cao’s Charter-protected interest is diminished somewhat by the fact that the evidence was otherwise discoverable.

[69] But in my view, the impact was still significant. Mr. Cao had a high expectation of privacy in his family home. Police forced their way into his home by breaking down the doors in the early morning hours. While Mr. Cao did not testify, there is no doubt that the aggressive manner the officers used to enter his home would have been frightening. Further, because of the manner of entry, Mr. Cao encountered the officers while wearing only boxer shorts, impinging on his personal dignity.

[70] Defence counsel argues that police breached Ms. Vu’s and Adrian’s s. 9 right against arbitrary arrest and that this is relevant in the s. 24(2) assessment. However, as in Bahlawan, at para. 62, I decline to put any significant weight on these alleged breaches. On the other hand, in a planned and calculated search such as police undertook in Mr. Cao’s case, the police must act in a manner that minimizes any unnecessary intrusion on constitutionally protected rights. The failure to do so in this case meant that his pregnant wife and teenaged son were also exposed to the hard entry, a fact that no doubt, for Mr. Cao, compounded the traumatic impact of the aggressive method used by the officers: Harper, at para. 54.

[71] In my view, this factor strongly militates towards exclusion.

(iii) Society’s Interest in an Adjudication on the Merits

[72] The third branch of the Grant inquiry considers society’s interest in determining the charges on their merits. The question is whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion: Grant, at para. 79. The court should consider the reliability of the evidence and its importance to the Crown’s case.

[73] Here, the evidence is highly reliable, real evidence. The offence is serious, and society has a strong interest in having the matter tried. Exclusion of the evidence will gut the Crown’s case.

[74] This factor strongly favours inclusion of the evidence.

(iv) Balancing the Factors

[75] In this case, the first two factors strongly favour exclusion of the evidence. The third factor, however, strongly favours admission.

[76] As explained in McColman, at para. 74, the cumulative weight of the first two factors must be balanced against the third line of inquiry. In R. v. Lafrance, 2022 SCC 32, at para. 90, the court explained the third line of inquiry, which typically pulls toward admission of the evidence, will seldom tip the scale in favour of admissibility when the first two lines, taken together make a strong case for exclusion: see also R. v. Le, 2019 SCC 34, at para. 142; Paterson, at para. 56.

[77] Mr. Cao is facing serious drug charges. There is a significant societal interest in having such offences tried on the merits. That said, the seriousness of the charges can cut both ways. On the one hand, the seriousness of charges can be said to enhance society’s interest in an adjudication on the merits. But, where the consequences to the defendant whose rights have been infringed are particularly serious, the concern that the courts must not be seen as condoning police misconduct becomes more pressing. It is essential that the seriousness of the charge does not overwhelm the other factors relevant to the s. 24(2) analysis: Grant, at para. 84; Paterson, at para. 56.

[78] If the rights guaranteed by the Charter are to have real meaning, police forces must take those rights seriously and officers must be trained to perform their duties in a manner that is consistent with those rights. In my view, a proper balancing of the Grant factors leads to the conclusion that admission of the evidence would bring the administration of justice into disrepute. This was not a case of the police conduct “slipping barely over the constitutional line, or in which legal uncertainty could reasonably be said to have blurred the line”: R. v. McGuffie, 2016 ONCA 365, at para. 77; Russell, at para. 151. Exclusion of the evidence of both the cocaine and money seized is required to adequately dissociate the justice system from the police misconduct in this case and to reinforce the importance of the rule of law and individual rights.

Conclusion

[79] The application is allowed, and the evidence seized is excluded pursuant to s. 24(2) of the Charter.

[80] In the absence of this evidence, the prosecution concedes that it has no case against Mr. Cao. As a result, I find him not guilty.

Justice Heather McArthur

Released: May 23, 2024