COURT FILE NO.: CR-22-90000308-0000 DATE: 20240521

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

Respondent

– and –

DUY TAM NGUYEN

Applicant

E. Skowron and D. Lumba, for the respondent

K. Schofield and C. Szpulak, for the applicant

HEARD: April 11-12, 2024

REASONS FOR DECISION

(Application Pursuant to ss. 10(a), 10(b) and 24(2) of the Canadian Charter of Rights and Freedoms)

SCHRECK J.:

[1] Duy Tam Nguyen and a man he was with were arrested for possession of a controlled substance while driving in a car on March 21, 2021. The arrest was part of an ongoing drug trafficking investigation. A search of Mr. Nguyen pursuant to the arrest resulted in the seizure of a quantity of drugs and some keys. The keys were later used to gain entry to premises where a search warrant was executed and where police found more drugs, a loaded firearm and identification belonging to Mr. Nguyen.

[2] Mr. Nguyen was advised of his right to counsel at the time of his arrest and identified a specific lawyer he wished to speak to. For various reasons related to concerns about the spread of COVID-19, Mr. Nguyen was not taken to a police station for some time. Once he arrived there, he was booked and strip searched. The police made no effort to facilitate his contact with counsel until about two hours after his arrest. Although the firearm had been located by then, Mr. Nguyen was never told that he was to be charged with a firearm possession offence.

[3] Mr. Nguyen has applied to exclude the drugs and the keys seized at the time of his arrest on the basis that the police violated his s. 10(b) Charter rights by delaying without justification the implementation of his right to counsel and his s. 10(a) Charter rights by failing to advise him of the firearms charge. The Crown submits that all of the delay was justified in the circumstances of this case and that certain comments made when the police explained the need for a strip search were sufficient to advise Mr. Nguyen of the firearms charge. In the alternative, the Crown submits that the evidence should not be excluded pursuant to s. 24(2) of the Charter.

[4] For the following reasons, the application to exclude the evidence is dismissed. While I am persuaded that there were serious breaches of both s. 10(b) and particularly s. 10(a), those breaches had a minimal impact on Mr. Nguyen’s Charter-protected interests and there is a strong societal interest in an adjudication of this case on its merits.

I. EVIDENCE

A. The Arrest

[5] In February and March 2021, the Toronto Police Service Drug Squad conducted an investigation into alleged drug trafficking by a number of individuals. The investigation was overseen by Det. David Wallace. Among the targets of the investigation was a person the police knew as “Sang” (later identified as Saengsouly Phankham) and an unidentified male he associated with (alleged to be the applicant). One of the locations for which the police obtained a warrant was a residence at a specified address on Huron Street in Toronto, which surveillance revealed had been attended by the targets.

[6] The police decided to arrest all of the targets of the investigation on March 21, 2021 and at the same time execute a number of search warrants at various locations, including the address on Huron Street. The Drug Squad enlisted the assistance of two uniformed officers, P.C. Kevin Bolduc and P.C. Jason D’Souza, who were tasked with arresting “Sang” and the unknown male as they were driving a black Mercedes in the area of Lower Simcoe Street and Bremner Boulevard.

[7] The two officers stopped the Mercedes at 7:11 p.m. P.C. Bolduc approached the applicant, who was in the driver’s seat, and advised him that he was under arrest for possession of a Schedule I substance for the purpose of trafficking. The applicant complied with a direction to get out of the car and was handcuffed. A search of his person resulted in the seizure of some keys, a wallet and a small plastic bag containing what was believed to be crystal methamphetamine. At the same time, P.C. D’Souza arrested Mr. Phankham, who was in the passenger seat.

B. Advising the Applicant of His Right to Counsel

[8] After arresting the applicant, P.C. Bolduc asked him if he had anything that could be used to harm himself or others. The applicant responded that he wished to speak to his lawyer, Kim Schofield. At 7:14 p.m., P.C. Bolduc advised the applicant of his right to counsel. The applicant again indicated that he wished to speak to Ms. Schofield.

C. Seizure of the Firearms

[9] The keys seized from the applicant were brought to an address on Huron Street, where police officers were waiting with a search warrant. At 7:20 p.m., the officers used one of the keys to gain entry to a unit in the building. In one room, the police found two firearms, a substance they believed to be cocaine and some identification in the applicant’s name. The search was completed by 8:06 p.m. Det. Eduardo Miranda, one of the officers involved in the search, called Det. Wallace during the search to advise him of the discovery of the firearms. Det. Miranda testified that one of the reasons he did that was to ensure that the person who had been arrested was made aware of the proper charges he would be facing.

D. Transportation of the Applicant to the Police Station

[10] At the time of the applicant’s arrest, the protocol for transporting individuals who had been arrested was to summon a wagon to bring them to the police station because of a concern that placing them into police vehicles might result in the spread of the COVID-19 virus. The officers accordingly summoned a wagon. They were told that the wagon would arrive in approximately 25 minutes.

[11] At 7:20 p.m., P.C. Bolduc called one of the officers in charge of the investigation, Sgt. Tan, to ask him to send officers to remain with the Mercedes while he and his partner transported the arrested individuals. In the course of that conversation, Sgt. Tan told him that search warrants were in the process of being executed and that a firearm had been located. P.C. Bolduc was not told where the firearm was found or who it was believed to have been possessed by.

[12] P.C. Bolduc understood that once the applicant indicated that he wished to speak to counsel, he had a duty to facilitate the applicant’s contact with counsel as soon as practicable. P.C. Bolduc attempted to retrieve the applicant’s phone from the Mercedes but could not do so because it was locked and another officer had taken the key. Although P.C. Bolduc had a police-issued mobile phone, he decided not to let the applicant use it because he believed that doing so may spread the COVID-19 virus. P.C. Bolduc did not believe that the applicant could make a private call from the wagon once it arrived.

[13] The wagon arrived at the scene at 7:45 p.m. and transported the applicant and Mr. Phankham to 14 Division police station, arriving there at 8:10 p.m. They waited in the sallyport until 8:34 p.m., at which time the applicant was paraded before the officer in charge of the station, Sgt. Sean Cassidy. There was an audio and video recording of this.

E. The Strip Search and Comments Made Prior to It

[14] P.C. Bolduc requested that the applicant be strip searched and in doing so said the following:

BOLDUC: Duy Tam Nguyen, he’s been arrested for possession for the purpose of trafficking a Schedule I substance, he’s been advised of his right to counsel, he would like to speak to a lawyer named Kim Schofield, and he’s been brought here to prevent the continuation or repetition of the offence. As far as search level, it’s an ongoing investigation, there’s two search warrants, a search warrant on a vehicle and an address currently being executed in that firearms have been located. Due to the nature of the offence, there were no [indiscernible] on him, and the firearms, I’m requesting a strip search.

APPLICANT: There’s a firearm on ….

BOLDUC: It’s part of the investigation, I don’t know.

Later, Sgt. Cassidy explained to the applicant why a strip search was being conducted:

CASSIDY: Okay, sir, so given the offence you’ve been arrested for …

APPLICANT: Okay.

CASSIDY: … and given the heightened safety concerns involving narcotics and a firearm, not saying you had a firearm on you, but that gives us heightened safety concerns, okay.

APPLICANT: So, a firearm is part of this investigation too?

CASSIDY: It’s part of the overall investigation.

APPLICANT: Overall investigation, oh, okay.

F. The Applicant’s Request That Counsel Be Called During the Strip Search

[15] Sgt. Cassidy asked the applicant whether he wished to speak to his lawyer prior to undergoing the strip search. The applicant indicated that he did. Sgt. Cassidy told him that they could call his lawyer and wait a reasonable amount of time for her to call back before conducting the strip search, but that he would have to remain in restraints until the search was conducted. After some discussion about whether the applicant could have access to his phone, Sgt. Cassidy asked him again whether he wished to wait to speak to his lawyer before being strip searched. The applicant responded, “Yeah, just search me now, and then if we can call her at the same time too, that’d be great.”

[16] The applicant’s lawyer was not contacted while he was being strip searched. Sgt. Cassidy testified that he had misunderstood the applicant’s request that this should occur. He agreed that a call could have been made to counsel at that time.

[17] At 8:43 p.m., the applicant was taken to a private area and strip searched. Nothing was found. He returned to the booking area at 8:50 p.m. and was lodged in the cells at 8:51 p.m.

G. Delay in Contacting Counsel After the Strip Search

[18] P.C. Christopher MacDonald was tasked with contacting lawyers for those who had been arrested. He was in the booking area at 8:51 p.m. At that point, he assumed that the applicant had been advised of his right to counsel but had not yet been given an opportunity to speak to counsel. He did not know if the applicant had requested a particular lawyer. He did not make any inquiries in this regard because he was “flustered” on account of having only recently joined that Drug Squad team. At the time, P.C. MacDonald had been a police officer for over 12 years.

[19] At 8:52 p.m., P.C. MacDonald left the booking area to attend a debriefing at the Criminal Investigations Bureau (“CIB”). He left the debriefing at 9:05 p.m., at which time he placed a call to Ms. Schofield’s office on behalf of the applicant. P.C. MacDonald was cross-examined on why he chose to attend the debriefing prior to contacting counsel:

Q. It’s fair to say that you prioritized, you’d rather go to the debrief than facilitate the right to counsel?

A. I wouldn’t state it exactly like that. I knew that the debrief was something important that I should be a part of, so I returned to the CIB to do that knowing that I could simply make the lawyers’ calls when I got the information I needed shortly after that.

Q. And just along this timing issue, more important than facilitating the right to counsel?

A. I don’t think I would have gone through that exact process of prioritizing in my mind. I see what you’re saying, you know, and that’s what happened.

[20] Ms. Schofield returned P.C. MacDonald’s call at 9:37 p.m.. She spoke to Mr. Phankham and then spoke to the applicant at 9:47 p.m.

H. Failure to Advise the Applicant of the Firearms Charges

[21] At the time the applicant spoke to counsel, he had not been advised that he was to be charged with firearm possession offences. The charges that would be laid, including firearm possession charges against the applicant based on the seizure of the guns on Huron Street, was the subject of discussion at the debriefing that P.C. MacDonald had attended. Det. Wallace had instructed P.C. MacDonald to go to the cell area to advise the applicant and Mr. Phankham of the charges they would be facing and ensure that they had been permitted to contact their lawyers. Det. Wallace did not follow up with P.C. MacDonald and was not aware that the applicant was never advised of the firearm charges.

II. SECTION 10(b) OF THE CHARTER

A. Overview of Applicable Legal Principles

[22] Section 10(b) of the Charter provides important protections for individuals who have lost their liberty as a result of being detained by agents of the state. The section ensures that such persons are provided with the means to attempt to regain their liberty and also helps ensure that they are aware of and able to exercise the right against self-incrimination: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 21-22; R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at p. 191. A person who has been detained requires those protections as soon as the detention occurs. Because of this, state agents who detain an individual have a duty to (1) inform the detainee of the right to counsel without delay (the informational duty); (2) if the detainee has indicated a desire to exercise the right to counsel, to provide him or her with a reasonable opportunity to do so (the implementational duty); and (3) to refrain from eliciting evidence from the detainee until he or she has had an opportunity to consult counsel (the duty to hold off): Taylor, at para. 23; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 29; Bartle, at p. 192; R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at pp. 1241-1242. In this case, there is no issue that the police complied with the first and third duties. It is the implementational duty that is at issue.

[23] Where a detainee requests to speak to counsel, the police have “a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity” and the burden is on the Crown to demonstrate that any delay in implementation was reasonable: Taylor, at para. 24. Whether or not any delay is reasonable is a fact-specific determination and there is no closed list of circumstances in which delay will be justified. Some examples of circumstances where delay is justified are concerns for the safety of the detainee, the police, or the public, medical concerns, risks that evidence will be lost, or practical considerations: R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 28; R. v. Wu, 2017 ONSC 1003, 35 C.R. (7th) 101, at para. 78.

[24] With respect to practical concerns that justify a delay in implementation, the police have no duty to implement s. 10(b) before a private telephone call can be facilitated in a safe and secure location: R. v. Keshavarz, 2022 ONCA 312, 413 C.C.C. (3d) 263, at para. 67. In many cases, the first opportunity for the detainee to have a private conversation in a safe and secure location will only arise once he or she is brought to the police station. However, this is not always the case and the police cannot assume that they can wait until the detainee has arrived at the police station: R. v. Williams, 2024 ONSC 1170, at para. 217; Taylor, at paras 30-32. Whether waiting until the detainee is at the police station is reasonable will depend on the facts of the case.

B. The Delay in This Case

(i) Between Arrest and Arrival at the Police Station

[25] The applicant alleges that the police failed to comply with their s. 10(b) implementational duties at the first reasonably available opportunity. The Crown takes the position that the delay in implementation was reasonable. Since the Crown seeks to justify the delay at different times for different reasons, it is useful to divide the delay into two periods, the first being between the applicant’s arrest and his arrival at the police station and the second being after his arrival at the police station.

[26] P.C. Bolduc testified that he was unable to provide the applicant with a secure and private location to use a telephone prior to arrival at the police station for several reasons. He could not place the applicant in the back of the police cruiser to make a telephone call because the COVID-19 protocols in place at the time prevented him from allowing the applicant into the cruiser. He was unable to provide the applicant with his own cell phone because it was locked in the Mercedes and another officer had left with the key. While Sgt. Bolduc had a police-issued mobile phone, he chose not to allow the applicant to use it because he was concerned about the transmission of COVID-19. P.C. Bolduc did not believe that the inside of the transport wagon was a sufficiently private location for the applicant to make a call because there was video surveillance inside it, even if there had been a telephone for him to use.

[27] P.C. Bolduc was cross-examined at some length about possible ways in which he could have implemented the applicant’s right to counsel. For example, it was suggested to him that the applicant could have been placed in the transport wagon with the telephone next to him using the telephone speaker instead of holding it to his mouth and with the surveillance video turned off, but Sgt. Bolduc did not know if the video could be turned off.

[28] Many of the reasons why the right to counsel was not implemented prior to the arrival at the police station relate to concerns about COVID-19. The applicant was arrested during the height of the COVID-19 pandemic and much about how the virus was transmitted was still unknown. In my view, the concerns about placing the applicant in the police cruiser or allowing him to use the police mobile telephone were reasonable in the circumstances. The situation may well have been different if the arrest had happened after the pandemic, where it is often feasible for detainees to contact counsel while inside a police cruiser using a police-issued telephone: R. v. Hassan, 2023 ONSC 1300, 86 C.R. (7th) 290, at para. 70.

[29] With respect to the suggestion that the applicant could have used a speakerphone inside the transport wagon after the surveillance inside the wagon was turned off (if it was possible to do so), the police are required to provide a detainee with access to a telephone at the first reasonable opportunity, not the first theoretically possible opportunity. P.C. Bolduc’s failure to consider this possibility, the feasibility of which remains unclear, was not unreasonable.

(ii) At the Police Station

(a) Waiting at the Sallyport

[30] After being transported to the police station, the applicant waited in the sallyport to gain entry into the station and then went through the parade procedure. The delay occasioned by these procedures, which are necessary to ensure the security of the police station and the well-being of the detainee, was reasonable in the circumstances: Keshavarz, at para. 67; Hassan, at par. 67; R. v. Williams, 2023 ONSC 3039, at para. 89; R. v. Adams, 2019 ONCJ 847, 450 C.R.R. (2d) 288, at para. 61. While there may be cases where a particular detainee should be given priority over other individuals who are being booked, there is no suggestion that this was such a case: R. v. Veltman, 2024 ONSC 2276, at paras. 136-138.

(b) The Possibility of Calling Counsel During the Strip Search

[31] At some time between 8:34 p.m. and 8:43 p.m., the applicant was asked whether he wished to speak to counsel before being strip searched. He opted not to do so, but asked that a call be placed to his counsel while he was being strip searched. This was not done. I accept Sgt. Cassidy’s explanation that he misunderstood the applicant. However, the fact remains that as Sgt. Cassidy acknowledged, a call to counsel could have been placed at that time. Based on this, I find that the earliest reasonable opportunity the police had to facilitate the right to counsel was during the strip search of the applicant, which began at 8:43 p.m.

(c) P.C. MacDonald’s Decision to Prioritize the Debriefing

[32] Even if there had been no reasonable opportunity to contact counsel during the strip search, P.C. MacDonald could have and should have done so while he was in the booking area at 8:51 p.m. and the applicant was being lodged in the cells. He chose instead to attend the debriefing. The delay occasioned by his decision was not reasonable.

C. Conclusion

[33] Based on the foregoing, I conclude that the police failed to fulfill their implementational duties between 8:43 p.m. and 9:05 p.m. and thereby infringed the applicant’s s. 10(b) Charter rights.

III. SECTION 10(a) OF THE CHARTER

A. Overview of Applicable Legal Principles

[34] Section 10(a) of the Charter, which guarantees a person who has been detained the right to be promptly informed of the reasons for the detention, is closely related to the rights guaranteed by s. 10(b). A person can only obtain meaningful advice from counsel if he or she knows why he or she is being detained: R. v. Nguyen, 2008 ONCA 49, 231 C.C.C. (3d) 541, at para. 20; R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at pp. 886-887. It follows from this that where a person is arrested for more than one offence, the police must advise him of all of the reasons for the arrest: R. v. Borden, 1994 CanLII 63 (SCC), [1994] 3 S.C.R. 145, at p. 166; R. v. Sawatsky (1997), 1997 CanLII 511 (ON CA), 35 O.R. (3d) 767 (C.A.), at para. 29; R. v. Cumbermack, 2024 ONSC 1837, at para. 86.

[35] Section 10(a) does not require the police to use any particular language or to advise the detainee of the technical charges that he will be facing: R. v. Roberts, 2018 ONCA 411, 360 C.C.C. (3d) 444, at para. 78. However, the police must provide the detainee with information that is sufficiently clear and simple so as to enable him to understand the reasons for his arrest and the extent of his jeopardy in order to allow him to meaningfully exercise his right to counsel: Roberts, at para. 78, Nguyen, at paras. 16-77; Evans, at pp. 886-888; R. v. Sabir, 2018 ONCA 912, 143 O.R. (3d) 465, at para. 33; R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225, at para. 124.

B. What the Applicant Was Told

[36] There is no issue that the applicant was never specifically told that he was going to be charged with a firearm possession offence. However, the Crown submits that what the applicant was told during the booking process and while the reasons for the strip search were explained to him was sufficient in the circumstances. What the applicant was told was that a firearm had been found at an address that was searched, but not the specific address, and that a firearm was “part of the overall investigation.”

[37] I do not agree that what the applicant was told was sufficient. The applicant was told that search warrants were being executed at two different addresses and would have been aware that he was not the only person who was being arrested. In these circumstances, it would not have been clear to him that the firearm that was found would be alleged to have been in his possession. Indeed, the following exchange between the applicant and Sgt. Cassidy may well have led the applicant to conclude that the firearm was alleged to have been possessed by someone else:

CASSIDY: … and given the heightened safety concerns involving narcotics and a firearm, not saying you had a firearm on you, but that gives us heightened safety concerns, okay.

APPLICANT: So, a firearm is part of this investigation too?

CASSIDY: It’s part of the overall investigation.

APPLICANT: Overall investigation, oh, okay.

[Emphasis added].

C. Conclusion

[38] For the foregoing reasons, I conclude that the applicant’s s. 10(a) Charter rights were violated. There was also an additional technical breach of s. 10(b) since the police had a duty to re-advise the applicant of his right to counsel once the extent of his jeopardy changed, which it had once the decision to charge him with firearm offences had been made: Sawatsky, at para. 30. However, little turns on this since the applicant had indicated that he wished to speak to counsel and had not yet done so. If s. 10(a) had been complied with when it should have been, the applicant would have been in a position to seek legal advice knowing the full extent of his jeopardy.

IV. [Section 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec24subsec2_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

A. “Obtained in a Manner”

[39] Section 24(2) of the Charter allows a court to exclude evidence if admitting it would bring the administration of justice into disrepute where the evidence was “obtained in a manner” that infringed or denied a Charter right. In this case, the evidence sought to be excluded was seized pursuant to the arrest that triggered the police’s s. 10(a) and 10(b) obligations. The keys were then used to enter the premises where the firearm was found, all of which took place before the right counsel had been implemented. In these circumstances, there is a temporal and contextual link between the breaches and the evidence: R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 38; R. v. Tim, 2022 SCC 12, 467 D.L.R. (4th) 389, at para. 78; R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 82. The Crown does not suggest otherwise.

[40] As a result, the court must determine whether admitting the evidence would bring the administration of justice into disrepute by considering the three lines of inquiry described in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, namely, the seriousness of the Charter-infringing state conduct, the impact of the breach on the applicant’s Charter-protected interests, and society’s interest in an adjudication of the case on the merits.

B. The Grant Lines of Inquiry

(i) The Seriousness of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)-Infringing State Conduct

(a) Overview

[41] The first line of inquiry requires the court to situate the seriousness of the Charter-infringing state conduct in issue on a continuum between minor, technical or inadvertent breaches on one end and wilful or reckless disregard of Charter rights on the other. The closer the conduct lies to the more serious end of the continuum, the greater the need for the court to dissociate itself from it: Grant, at paras. 72-74; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 143; R. v. Beaver, 2022 SCC 54, 475 D.L.R. (4th) 575, at para. 120.

(b) Section 10(b)

[42] I have found that the s. 10(b) breach began at 8:43 p.m., when Sgt. Cassidy failed to begin the process of contacting counsel while the applicant was being strip searched. It continued when at 8:51 p.m., P.C. MacDonald made the decision to attend the debriefing instead of facilitating the right to counsel. I will consider the actions of each officer separately.

[43] I accept Sgt. Cassidy’s evidence that he had misunderstood the applicant’s request to call his lawyer while the strip search was happening. His failure to do so was inadvertent. Prior to this, Sgt. Cassidy had explain the applicant’s right to counsel to him and had given him the opportunity to call counsel before being strip searched. I find that the seriousness of this aspect of the s. 10(b) breach was minor.

[44] I take a different view with respect to the actions of P.C. MacDonald. He was wrong to prioritize attendance at the debriefing over facilitating the right to counsel. His duty to facilitate the right to counsel was constitutional in nature. His duty to attend the debriefing was not. P.C. MacDonald does not seem to understand the importance of his constitutional duties. I view this aspect of the breach as serious.

(c) Section 10(a)

[45] I view the s. 10(a) breach as serious. There has been no explanation why the applicant was not advised of the fact that he was to be charged with firearm possession offences. Det. Wallace was clearly aware of the need for this and accordingly instructed P.C. MacDonald to advise the applicant of his charges. He did not do so. This was a serious breach.

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

(a) Overview

[46] The second line of inquiry requires the court to consider the extent to which the breach “actually undermined the interests protected by the rights infringed”: Grant, at para. 76; Le, at para. 151. This requires the court to identify the interests protected by the Charter right in question and to then examine how seriously they were affected: Grant, at para. 77; Tim, at para. 90.

[47] The purpose of s. 10(b) of the Charter is to assist detainees to regain their liberty and guard against the risk of involuntary self-incrimination: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 40; Bartle, at p. 191. It also protects a detainee’s psychological security because access to counsel gives them “the sense that they are not entirely at the mercy of the police”: Rover, at para. 45; R. v. Jarrett, 2021 ONCA 758, 498 C.R.R. (2d) 38, at para. 52.

[48] The purpose of s. 10(a) of the Charter is related to the purpose of s. 10(b). It is to ensure that a detainee understands why he or she is detained so that he or she can exercise the right to counsel in a meaningful way: Nguyen, at para. 20. It also ensures that the detainee is able to make an informed decision about whether to submit to the detention: Evans, at pp. 886-887.

(b) Section 10(b)

[49] There is no evidence that the applicant made a statement to the police or otherwise incriminated himself. Insofar as s. 10(b) is linked to the right against self-incrimination, the breach in this case had very little impact on the applicant’s Charter-protected interests. There was no causal link between the breach and the evidence the applicant seeks to exclude: R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at para. 120; R. v. Hobeika, 2020 ONCA 750, 153 O.R. (3d) 350, at para. 84.

[50] With respect to the applicant’s psychological security, I have found that the breach in this case occurred between 8:43 p.m. and 9:05 p.m., a total of 22 minutes. The applicant was obviously anxious to speak to counsel as soon as he could and any delay in his ability to do so likely had some impact on him. But given the length of time involved, that impact was minimal.

(c) Section 10(a)

[51] As with s. 10(b), the fact that the applicant did not incriminate himself means that the breach had very little impact on him. Given that the applicant had already been lawfully arrested for possession of a controlled substance, there can be suggestion that compliance with s. 10(a) would have affected his decision to submit to the arrest. Overall, the impact of the s. 10(a) breach was also minimal.

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

[52] Factors relevant to society’s interest in an adjudication on the merits include the reliability of the evidence, the importance of the evidence to the prosecution’s case, and the seriousness of the offence at issue: Grant, at paras. 79-84; Beaver, at para. 129.

[53] In this case, the evidence is reliable and critical to the Crown’s case. The Crown has indicated that if the keys and the controlled substance found on the applicant’s person are excluded, it would not be able to continue with the prosecution. The offences charged are serious. All of these factors strongly favour inclusion of the evidence.

C. Final Balancing

[54] The final step in the s. 24(2) analysis requires the court to weigh each line of inquiry to determine whether admitting the evidence would bring the administration of justice into disrepute in the long term. The court’s goal is not to punish the police but to ensure that evidence obtained through a Charter breach does not cause further damage to the justice system: Beaver, at para. 133; Grant, at para. 69-70, 86-86; Le, at para. 139; Tim, at para. 98. The court must consider the cumulative weight of the first lines of inquiry and balance it against the third line: Beaver, at para. 134; R. v. Lafrance, 2022 SCC 32, 472 D.L.R. (4th) 1, at para. 90. The third line of inquiry is of particular importance where one, but not both of the first two weighs in favour of exclusion: Beaver, at 134; R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63.

[55] In this case, while the first line of inquiry weighs in favour of exclusion of the evidence, the second does not and the third weighs strongly in favour of inclusion. In my view, this is a case where the “the cumulative weight of the first two lines of inquiry is overwhelmed by a compelling public interest in admitting the evidence”: Beaver, at para. 134. I am not persuaded that admission of the evidence would bring the administration of justice into disrepute.

IV. DISPOSITION

[56] The application is dismissed.

Justice P.A. Schreck

Released: May 21, 2024

COURT FILE NO.: CR-22-90000308-0000 DATE: 20240521

ONTARIO SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

DUY TAM NGUYEN

REASONS FOR DECISION

P.A. Schreck J.

Released: May 21, 2024