COURT FILE NO.: CR-23-00000068-0000 DATE: 2024Jun24

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – KASHEEN WILSON Applicant

Counsel: J. Dart, for the Crown T. Evangelista, for the Applicant

HEARD at Kingston: March 27, 28 and May 7, 2024

TRANMER J.

REASONS FOR DECISION

(Application under s. 8 and 10(b) of the Charter of Rights and Freedoms)

[1] This is an application by defence to exclude all of the evidence located by the police on Mr. Wilson's person and in Unit B when they executed a lawful search warrant on September 29, 2021. Mr. Wilson alleges violations of his Section 8 and 10(b) Charter rights.

[2] It is not disputed that the search warrant was lawful and lawfully obtained.

[3] It is not disputed that the search and the seizure of drugs, money, weapons and drug paraphernalia was lawful.

[4] It is not disputed that the arrest and detention of Mr. Wilson was lawful.

The Charges

[5] The indictment reads:

1. Unlawfully did, for the purpose of trafficking, possess a substance included in Schedule I of the Controlled Drugs and Substances Act, to wit: Fentanyl, contrary to Section 5(2) of the said Act, thereby committing an indictable offence under Section 5(3)(a) of the said Act.
2. Unlawfully did possess proceeds of property or a thing, namely money, of a value exceeding five thousand dollars, knowing that all or part of the said proceeds had been obtained by an offence punishable by indictment, contrary to Section 355, clause (a) of the Criminal Code of Canada.
3. Did while being at large on an undertaking, fail without lawful excuse to comply with a condition of that release order, namely, do not possess any illegal substances (CDSA) except with a valid prescription in your name, contrary to Section 145 subsection (4), clause (a), of the Criminal Code of Canada.
4. Did while being at large on an undertaking, fail without lawful excuse to comply with a condition of that release order, namely, do not possess any weigh scales or drug paraphernalia contrary to Section 145 subsection (4), clause (a), of the Criminal Code of Canada.
5. Did without being authorized under the Firearms Act to do so, carry a concealed weapon, namely a knife, contrary to section 90, subsection (1) of the Criminal Code of Canada.
6. Did without lawful excuse, possess a prohibited weapon which was not a replica firearm, namely a conductive energy weapon, without being the holder of licence permitting such possession, contrary to section 91, subsection (2) of the Criminal Code of Canada.

The Facts

[6] There are no significant disputes with respect to the facts.

[7] Kingston police received information from a confidential informant that Jacinta Hartin, a person known to them to be involved in the drug world, and a young unknown black male from out of town were selling drugs at unit B 387 Barrie St., Kingston. Jacinta Hartin was known to police to bring people from out of town to sell drugs. The information was that the unknown black male was selling drugs out of the living room of that unit.

[8] Members of the street crime unit set up surveillance on the unit on September 28 and September 29, 2021. They observed people coming and going, including people known to them to be involved in the drug world. These people were making quick visits. There were also vehicles coming and going from the address. Police believed this activity to be consistent with drug dealing.

[9] No black male was seen on either day.

[10] Two police officers testified that in their experience the drug seller does not come and go so as not to be seen.

[11] One of the persons known to police to be involved in drug activity lived directly across the street from this unit and observations were made of her. She also was known to bring men from the GTA to sell drugs in Kingston.

Detective Constable Conner

[12] He was the officer in charge and the Affiant of the ITO for the search warrant of the unit.

[13] He prepared the ITO on the morning of September 29 from the information and observations obtained the day before. He monitored the surveillance being done on September 29 but he could not recall whether any of that information was included in the ITO. He testified that those observations did not detract from the information that was included in the ITO.

[14] The ITO and search warrant were not challenged in this application and were not introduced into evidence.

[15] The search warrant was granted September 29 at 11:30 AM. It specified the address and listed Jacinta Hartin and an unknown black male as the targets.

[16] The police had no other information whatsoever about the black male, no biographical information and no descriptors, except that he was young.

[17] The search warrant authorized a search for cocaine, fentanyl, scales, cell phones, debt lists, packaging, Canadian money and safes.

[18] At 4:25 PM, dynamic entry was made by the police ERU team.

[19] At 4:27 PM, the street crime unit members entered the unit.

[20] In accordance with their standard procedure, the ERU officers had placed everyone inside of the residence under arrest including Mr. Wilson.

[21] When DC Conner entered the unit, he saw Jacinta Hartin, and two other persons known to be involved in the drug world, Tamara Hartin and Shawn Bala.

[22] He went to the living room where he saw Mr. Wilson standing beside a couch with two ERU members. Mr. Wilson was facing the hallway and was handcuffed.

[23] He learned that Mr. Wilson was under arrest.

[24] He observed officer MacNeish takeover custody of Mr. Wilson from the ERU members.

[25] DC Conner had no information or recollection about either the ERU members or MacNeish giving the rights to counsel to Mr. Wilson.

[26] He testified that the grounds to arrest Mr. Wilson were that he was a young black male, he was selling drugs in the living room with Jacinta Hartin, in unit B.

[27] DC Conner observed a pat down search by ERU of Mr. Wilson.

[28] He testified that it was an oversight on his part that he did not make a note of who handed him what items found on Mr. Wilson’s person. He observed cash being found in four different pockets of Mr. Wilson’s clothing. A Champion fanny pack was seized and inside there was cash. All of the cash found was Canadian currency. Three Percocet pills were found in his right pant pocket. A 12 inch pink ceramic knife in a sleeve was found tucked in his rear waistband.

[29] He took possession of each of these items and bagged them separately. They were handed over to the exhibit officer.

[30] Mr. Wilson was taken out of the unit and handed over to police for transport to the police station.

[31] This officer seized one other item namely a large black cell phone in the back bedroom.

[32] Everything seized in the unit is listed on the exhibit list Exhibit 2 and shown in the photograph Exhibit 5.

Detective Constable MacNeish

[33] He testified that he made his notes the next day which would be September 30. He testified that he had no note about the right to counsel being given to Mr. Wilson inside the unit. When asked why he did not have such a note his response was, “it’s a flowing situation”.

[34] He acknowledged that giving a person under arrest the rights to counsel is an important Charter right. He agreed that it is a psychological benefit to an accused to know that he is not solely at the mercy of the police. He testified that the right to counsel should be given as soon as practicable.

[35] He testified that he gave the right to counsel to Mr. Wilson within five minutes after he had entered into the unit, but he could not recall what he read the right to counsel from.

[36] When he entered into the living room, he saw two ERU members standing near a black male. He took the black male into custody.

[37] When he gave the right to counsel and caution to Mr. Wilson, Mr. Wilson mentioned a lawyer.

[38] DC MacNeish took Mr. Wilson outside to wait for transport.

[39] Once outside, he gave Mr. Wilson access to his cell phone and Mr. Wilson located an entry marked “lawyer”, with a telephone number.

[40] DC MacNeish did not permit Mr. Wilson to call his lawyer while outside awaiting transport because there would be no privacy.

[41] At 4:40 PM, he turned Mr. Wilson over to officer Langley for transport to the police station. He told PC Langley why Mr. Wilson had been arrested and to put him into a cell where evidence would not be lost.

[42] He could not recall saying anything to PC Langley about right to counsel or calling a lawyer.

[43] The officer testified that he understood that Mr. Wilson and the others would be able to call their lawyers at the police station. He testified that he expected that that would happen. He testified that he had no problem with Mr. Wilson speaking to a lawyer when he got to the police station.

[44] The officer searched the unit until 6:30 PM.

[45] He returned to the police station at 7 PM. He did not check to see if Mr. Wilson had spoken to a lawyer.

[46] He testified that he began the paperwork and administrative duties relating to this investigation.

[47] He testified, “I got sidetracked by administrative duties”.

[48] At 9:52 PM, it came to his attention that Mr. Wilson had not had a telephone call with his lawyer. DC MacNeish could not recall how this came to his attention.

[49] DC MacNeish agrees that Mr. Wilson should have spoken to the lawyer when he got to the police station. On the evidence, including that of officer Bradshaw, this would have been around 5 PM.

[50] At 9:52 PM, he checked Mr. Wilson’s cell phone and confirmed that the telephone number was for a lawyer, Ed Royle. He permitted Mr. Wilson to make a private telephone call to the lawyer. The call lasted 10 minutes.

[51] The officer testified that next he requested a level II strip search. He did this for safety reasons because Mr. Wilson was going to be detained for bail.

[52] He required permission from a supervisor to conduct a strip search. The grounds that he gave to Sgt. Birney were that Mr. Wilson was observed to be wearing multiple layers of clothing, a large quantity of fentanyl was found at the scene, a knife was found hidden on Mr. Wilson, Mr. Wilson was facing similar charges in Belleville, he was charged with trafficking in fentanyl and from experience, the officer knows that people hide drugs on their person.

[53] The strip search began at 10:06 PM and ended at 10:09 PM. Procedure requires that the strip search be conducted in a private designated room that has audio recording only, no video for privacy reasons. The officer has no notes regarding the strip search. He recalls that nothing was found during the strip search.

[54] The officer testified that there was no attempt to question Mr. Wilson or attempt to obtain evidence, other than the strip search, or interrogate him after his arrest in Unit B.

Cross-examination

[55] He agreed that the right to counsel is a fundamental important Charter right that conveys a psychological benefit to the accused that he is not solely at the mercy of the police.

[56] He agreed that the right to counsel should be implemented as soon as practicable.

[57] Mr. Wilson asked to speak to the lawyer who was named on his cell phone at the number indicated.

[58] The officer could not recall Mr. Wilson’s answer to the question put to him, “Do you want to speak to a lawyer now”.

[59] He agreed that he would have read the right to counsel to Mr. Wilson within 5 minutes of 4:25PM.

[60] The chronology with respect to the implementation of Mr. Wilson’s call to his lawyer of choice is as follows:

1. Arrest: 4:25 PM plus 5 minutes.
2. Transport: 4:40 PM.
3. Arrive at Kingston police station: 5:00 PM, approximately, on the evidence.
4. Booking: Sgt. Birney says this takes 3 to 5 minutes, and that an inquiry about right to counsel is the third or fourth question put to the accused after his name and birth date. Sgt Birney was not the booking officer at 5:00 PM.
5. Right to counsel implemented: 9:52 PM. From 5:00 PM until 9:52 PM, Mr. Wilson was held in a drycell at the Kingston police station.

[61] DC MacNeish testified that he understood that Mr. Wilson would be permitted to call his lawyer when he got to the police station.

[62] He testified that he made it happen as soon as it came to his attention that Mr. Wilson had not made that call.

[63] He agreed that he could have checked to see whether Mr. Wilson had made the telephone call to his lawyer before he began his paperwork.

[64] He testified that the timing of implementing the right to counsel in this case “is not ideal”.

[65] He agreed that Mr. Wilson should have spoken to his lawyer when he got to Kingston police station which would have been around 5 PM on the evidence.

[66] With respect to the strip search, the officer understood that it was to be done in a specific room equipped with audio recording only. The audio recording of this strip search is not available. It may be that the police had a retention period for evidence of two years, and that the audio has not been preserved beyond that time. This officer did not speak to any other officer about preserving the audio.

[67] The evidence is that every square inch of the cell and booking area of Kingston police station is audio and video recorded. That audio and video recording is also not available in this case. It appears that it too may have not been preserved beyond a two-year retention period.

[68] DC MacNeish, when giving his grounds for the strip search to Sgt. Birney, would have been audio and video recorded. As I have stated, that recording is not available.

[69] The information recorded on the booking form when Mr. Wilson was booked is also not a matter of evidence in this case.

[70] This officer could not recall if Mr. Wilson was ever totally naked during the strip search. Officer Bradshaw testified that Mr. Wilson would have been completely naked for 30 to 60 seconds.

[71] This officer does not have notes about the various steps, commands or responses during the strip search.

[72] He recalls that Mr. Wilson was compliant.

[73] He could not recall if Mr. Wilson was asked to expose his buttocks or pull his foreskin back. Officer Bradshaw testified that Mr. Wilson was asked to bend over and pull his buttocks apart and that his anus was then visually inspected with the use of a flashlight.

[74] This officer testified that he assumed that the door to the designated room was left open. Officer Bradshaw testified that the door was closed for privacy reasons.

[75] The officer agreed that the strip search could have occurred earlier, for example, at 7 PM when he got back to the station.

Sgt. Birney

[76] He was the supervisor on patrol and for the booking area commencing at 6 PM on September 29. He was not present when Mr. Wilson was booked at the police station.

[77] He testified that booking usually takes 3 to 5 minutes.

[78] He testified that inquiring of the accused about wishing to speak to counsel is the third or fourth question asked during the booking process after the accused’s name and date of birth.

[79] He testified that the right to counsel is usually afforded to an accused “as soon as he is brought into the booking area”.

[80] He was called to the station because of DC MacNeish’s request for a strip search.

[81] Room 159 is the only room authorized for strip searches because it is the only room with just audio recording and no video. DC MacNeish testified that the strip search was done in room 161.

[82] Sgt. Birney completed the strip search form, Exhibit 3. He confirmed that he was given reasons by DC MacNeish. As stated on the form, this procedure is video recorded. However, the video of this is not available, as I have said.

[83] He wrote on the form that the grounds for the strip search was because Mr. Wilson was possibly in possession of further drugs including fentanyl. Sgt. Birney testified that he was also told that a search warrant had been executed, Mr. Wilson had been arrested, there was a bulge in his pants, that it was thought that Mr. Wilson could have drugs or weapons on his person and that Mr. Wilson was on similar charges in Belleville. In cross-examination, he acknowledged that he had not recorded the additional grounds which he says were stated to him by DC MacNeish.

[84] He granted permission for the strip search out of concern for safety of Mr. Wilson and others in the cells and because if evidence was found on his person these could lead to further charges.

[85] He testified that the door is normally closed for the strip search, “to guard privacy to the utmost”.

[86] His involvement was 5 to 7 minutes.

Officer Bradshaw

[87] He was a member of the street crime unit and made observations during surveillance on September 28 and September 29, 2021.

[88] He made observations of known drug dealers and users coming and going from Unit B during those days.

[89] He testified that the search warrant was executed at 4:25 PM on September 29.

[90] He testified that 4:28 PM he found Jacinta Hartin in the bedroom on the right and arrested her for possession for the purpose. He gave her the right to counsel and she requested to speak to lawyer Mr. Abergel.

[91] At 4:40 PM, he found Shawn Bala in a back bedroom and arrested him for P for P. He gave Shawn Bala the right to counsel and he asked to speak to lawyer Mr. Abergel.

[92] At 4:55 PM, he turned these two over to another officer for the purpose of transport back to Kingston police station.

[93] At 5:05 PM, he began to search the unit. In the living room, he found a number of items including what appeared to be cocaine and fentanyl and also scales. He also found a small bat and a Taser with power.

[94] At 7:03 PM, he turned the residence over to a person identified by one of the accused.

[95] He returned to Kingston police station.

[96] At 9:52 PM, he came into the booking area because he had learned that Jacinta Hartin and Shawn Bala had not made their calls to Mr. Abergel.

[97] But at that point, he overheard DC MacNeish seeking permission for a strip search of Mr. Wilson from Sgt. Birney. He remained to assist in the strip search.

[98] The strip search of Mr. Wilson took place before Jacinta Hartin and Shawn Bala made their calls to their lawyer of choice.

[99] He testified that the strip search was conducted in room 161. This accords with DC MacNeish but is contrary to Sgt. Birney and the form which specifies room 159.

[100] He testified that the door to the room was closed for privacy during the strip search. DC MacNeish could not recall if the door was closed, he assumed it was open.

[101] He testified that Mr. Wilson was cooperative.

[102] He testified that he had Mr. Wilson lift his genitals for inspection, open his mouth for inspection, and spread his buttocks for inspection using a flashlight.

[103] He testified that Mr. Wilson would have been completely naked for 30 to 60 seconds. DC MacNeish could not recall that.

[104] He confirmed that the strip search ended at 10:09. The officers found nothing.

[105] At 10:32 PM, he placed a call to duty counsel on the half of Tasha Lalonde, one of the accused.

[106] At 10:35 PM, he left a message for Mr. Abergel on behalf of Jacinta Hartin and Shawn Bala.

[107] He does not recall why there was this delay, from approximately 5 PM until 10:32 and 10:35 PM for these calls to be made to counsel.

Cross-examination

[108] He had no issue with respect to Jacinta Hartin and Shawn Bala speaking to their lawyer when they got to the police station.

[109] He agreed that the right to counsel should have been implemented as soon as practicable, and that there was no reason for the delay in this case. He testified that the accused would’ve arrived at the police station booking area around 5 PM.

[110] He acknowledged the almost 6 hour delay, “I assumed it had been taken care of by the booking officer”. It did not cross his mind to ask Sgt. Birney about it because all of the officers know that this is an important Charter right for every case. He testified that he did not presume to remind Sgt. Birney about it. It is usual that the lawyer calls are made at the time of booking.

[111] He testified that he cannot reconcile the delay in implementing the right to counsel in this case.

[112] He did not speak to Conner or any other officer about implementing right to counsel for these accused.

[113] It did not cross his mind at 7:30 PM to check to see whether the lawyer calls have been made.

[114] He does not know who the booking officer was prior to Sgt. Birney, only that Birney was the officer at 7:30 PM when he got there.

[115] He testified that he got back to the police station at 7:30 PM having turned the residence over at 7:03 PM.

[116] He testified that it is common for an accused to be completely naked during the strip search.

[117] He testified that it would concern him if the door to the strip search room was open because it would invade the privacy of the person being searched.

Defence Summary of Facts

[118] With respect to the facts, the recitation of the facts set out by the defence in his factum at paragraphs 7 to 19 with respect to the s. 10(b) breach is substantively accurate. I would add that on the evidence, it was another officer, not Sgt Birney, who was the booking Sergeant on duty at 5:00 PM when Mr. Wilson and the other accused arrived at the Kingston police station. Sgt Birney came on duty in that position at sometime after 6:00 PM.

[119] I note that officer Bradshaw made the same omission as DC MacNeish in regard to delayed implementation of the s. 10(b) rights with respect to the two accused that he arrested and another accused. In fact, DC Bradshaw assisted DC MacNeish with a strip search of Mr. Wilson before he implemented the s. 10(b) rights of the three other accused, knowing that they had not been permitted to call a lawyer yet.

[120] The defence recitation of the facts from paragraphs 20 to 34 in his factum with respect to the s. 8 breach is substantively accurate.

[121] The real evidence found on Mr. Wilson's person was a significant sum of Canadian currency in various of his pockets of his clothing and in a fanny pack that was over his shoulder. 3 percocet pills were found in his right pant pocket. A pink ceramic knife in a sleeve was found tucked in his rear waistband.

[122] In a black Nike bag that was found near to him when he was arrested, police found a clear plastic bag with a white substance in it, a blue chunky substance, a digital scale with white residue, and shredded plastic bag wrappings. Defence concedes that 130 grams of fentanyl was located inside that Nike bag.

Section 10(b)

Position of the Parties

[123] The Crown concedes that there was a breach of Mr. Wilson's 10(b) rights in that his rights were not implemented by the police in the booking area when he arrived at the Kingston police station around 5:00 PM. It was not until 9:52 PM that his arresting officer realized or came to understand that Mr. Wilson had not been afforded a telephone call to his lawyer as he had requested, and that officer implemented that telephone call.

[124] I agree that his rights were breached as a result of that delay and I so find.

[125] I would not find that a breach arose in the time frame between Mr. Wilson's arrest and his arrival at the booking area, approximately 35 minutes. DC MacNeish gave a reasonable explanation as to why implementation could not occur at the scene. (See R. v. Rover, 2018 ONCA 745, paras. 26 to 28; R. v. Jeyakanthan, 2023 ONSC 5370, paras.73 to 75).

Section 24(2)

Defence Position

[126] The defence submits that the seriousness of this breach and the impact of this breach weigh heavily toward exclusion of the evidence. Accordingly, the defence submits that the third Grant factor should also weigh against admission of the evidence, that this is a case where the court should disassociate itself from the police conduct to maintain the favourable reputation of the administration of justice and that therefore, all of the evidence found by the police when they executed the search warrant should be excluded.

[127] The defence submits that the s. 10(b) right safeguards not only the right against self incrimination, but in addition provides a lifeline to an accused to secure information about the criminal procedures that he is now involved in, and how he might regain his liberty, and provides a psychological benefit to an accused so that he knows he is not at the mercy of the police.

[128] The defence submits that even though the real evidence was found lawfully before the breach of Mr. Wilson's right, it should be excluded from the evidence at trial. The defence points out that the case law establishes that the connection between the finding of evidence and the breach can be either causal, temporal, contextual or a combination. The defence submits that in this case, the connection is temporal and contextual.

[129] The defence submits that it is an error of law for the trial judge to focus on the point that there was no self incrimination by the accused resulting from the breach. The facts are that the police did not interview Mr. Wilson or attempt to extract a confession from him, and they did not find any other evidence other than what was found during the lawful search of the residence immediately following entry into Unit B.

[130] The defence submits that the case law establishes that all of the purposes of the s. 10(b) are equally important.

[131] The defence cites case law for the proposition that lack of bad faith on the part of the police does not equate with good faith. The cases point out that a breach can be serious even if it does not result from deliberate police decisions or policy or is not a systemic problem. Such a breach can be serious even if it results from carelessness or negligence.

The Defence Cases

[132] R. v. Noel, 2019 ONCA 860 is a case where the accused never spoke to counsel. The relevant principles of law are set out at paragraphs 23 to 26 inclusive.

23 The right to consult counsel without delay exists because those who are arrested or detained are apt to require immediate legal advice that they cannot access without help, because of their detention: R. v. Bartle, [1994] 3 S.C.R. 173, at p. 191; R v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 41: R. v. Rover, 2018 ONCA 745, 143 O.R. (3) 135, at para. 34.

24 For example, an arrest and the search of one's home can raise urgent legal issues about the lawfulness of the arrest and the obligation to submit, as well as the validity of the search warrant and the scope of authority that the search warrant gives to the police. Such information could be useful in preventing an unjustified search, before it happens: R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1144.

25 Detention also raises questions of immediate importance relating to the detainee's rights during detention, including the right against self-incrimination: Bartle, at p. 191; R. v. T.G.H, 2014 ONCA 460, 120 O.R. (3d) 581, at para. 4.

26 Beyond this, the right to counsel is also important in providing "reassurance" and advice, on such questions as how long the detention is apt to last, and what can or should be done to regain liberty: Debot, at p. 1144; Suberu, at para. 41. As Doherty J.A. said in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 45:

The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.

[133] R. v. Rover, 2018 ONCA 745 is a case where it was police policy to delay the accused access to counsel until after the search warrant was obtained and executed no matter how long that took. Relevant principles are set out at paragraphs 35, 36 and 45.

[35] While there was no causal connection between the discovery of the drugs and the s. 10(b) breach, there was a close temporal connection. The parties acknowledge that the connection is sufficient to engage s. 24(2): see R. v. Pino (2016), 130 O.R. (3d) 561, [2016] O.J. No. 2656, 2016 ONCA 389.

[36] The exclusionary rule in s. 24(2) operates on the assumption that the routine admission of constitutionally tainted evidence must have a long-term negative effect on the repute of the [page146] administration of criminal justice. As explained in R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32, at para. 70:

Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

[45] The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.

[134] The Crown fairly summarizes the court’s decision in R. v. Pino, 2016 ONCA 389 at paragraph 20 of its factum in this case:

20. Furthermore, recall that, until the decision in R v. Pino, 2016 ONCA 389, there was a dispute as to whether the exclusion of evidence obtained before or independent of a Charter breach could happen at all. In that case, however, the Ontario Court of Appeal concluded that the meaning of “…evidence obtained in a manner” that infringes a Charter right could be read broadly enough to include evidence obtained before or entirely separate from the Charter breach. That said, the Court also noted the following factors that are not present in this case:

• There was a delay of over 5 hrs before Ms. Pino could speak to counsel because the police deliberately suspended her ability to contact counsel because they were executing a warrant to search a residence (para. 30);
• The decision on whether to exclude the evidence was “…a difficult issue.” (para. 48);
• In addition to breaches of section 10(b), there was also a breach of section 8 and the trial judge found that the police lied in their evidence (paras. 91-96);
• The two 10(b) breaches and the section 8 breach were part of the same transaction, i.e. the vehicle stop of Ms. Pino (para. 73);
• “This is one of those cases in which the courts need to disassociate itself from the police’s conduct is greater than society’s interest in prosecuting Ms. Pino for possessing 50 marijuana plants ” (emphasis added) (para. 107).

[135] Justice Molloy in R. v. Jeyakanthan, 2023 ONSC 5370 also summarized the Pino decision at para. 115.

[136] The defence relies heavily on the decision in R. v. Whittaker, 2024 ONCA 182. In that case, the evidence was found before the s. 10(b) breach. At no point did the police implement the right to counsel following the arrest of the accused at 10:53 PM and prior to his bail hearing the next morning. There was no explanation offered for the failure to call the lawyer. The important principles set out in this case are found in the following paragraphs of the decision,

14 The trial judge, at para. 102 of her reasons, described the s. 10(b) breach as follows:

Constable Alias testified that after giving the applicant his rights to counsel, the applicant responded that he wanted to call a lawyer. Constable Alias testified that he did not facilitate that call to counsel nor did he know of any officer who did. Constable Alias testified that it was his responsibility and he offered no explanation as to why he did not fulfill that obligation. He did testify that it was a high adrenaline situation. The applicant testified that after he was arrested, he did tell the officer he wanted to call a lawyer but he was never given the opportunity to do so. [Emphasis added.]

15 She went on to state, at paras. 103 and 104:

While I am mindful that Constable Alias was unable to provide a verbal explanation for not facilitating the applicant's phone call to counsel, I do think the circumstances shed some light on the issue. This was a high-risk takedown where a loaded restricted weapon was recovered. This was not just any weapon, it was [a] sawed-off shotgun. The weapon by its very appearance is menacing. It is common sense the Officers would only start to appreciate the real danger they were in after they located the firearm - adding to an already high adrenaline situation. Although not excusable - it is understandable how this circumstance resulted in Detective Constable Alias' oversight in facilitating the applicant's call to counsel.

On the booking video, the applicant in the presence of Constable Alias was asked by Sgt. Powis if he wanted to call counsel. The applicant responded by saying something about calling sureties. In my view, this response added a layer of confusion to the situation.

16 With respect to the first Grant factor, the seriousness of the breach, the trial judge wrote, at para. 108:

In my view the Officers did not wilfully or recklessly disregard the applicant's s. 10(b) Charter rights. The breach was not intentional nor was it part of [a] larger systemic problem within the law enforcement agency. I find that this was an honest mistake made in a difficult and high adrenaline circumstance.

17 She concluded that, given the unique facts of this case, the first Grant factor favoured admission.

18 With respect to the second Grant factor, the impact of the violation on the accused's Charter-protected interests, the trial judge noted that the task is twofold, requiring the judge to both identify the interest at stake and measure the significance of the intrusion. She found that the requirements of s. 10(b) safeguard against involuntary self-incrimination. Concerning the significance of the intrusion, she wrote this, at para. 114:

In this case the firearm and ammunition were seized during a lawful search incident to arrest prior to the applicant receiving or implementing his s. 10(b) rights. I find that the police were justified in delaying the providing and facilitation of the applicant's call to counsel until after both searches were complete. To do otherwise would have [compromised] the safety and security of the public and the officers involved [citation omitted]. The police did not attempt to interview the applicant after either of the searches, nor was there any other evidence obtained. Given that there is no causal connection between the applicant's s. 10(b) interest and the obtaining of the evidence, the intrusion in my view is at the lower end of the scale.

29 The objective is not to assign blame, punish the police, or deter future Charter breaches, but to "preserve public confidence in the rule of law and its processes". A s. 24(2) analysis must focus on the "broad impact [the] admission of the evidence [would have] on the long-term repute of the justice system": Grant, at paras. 70-73.

30 Charter violations in the collection of evidence vary on the spectrum of seriousness. On the one end are inadvertent, technical, and minor Charter breaches. On the other end is the reckless disregard of Charter rights as well as systemic patterns of Charter-infringing conduct. The more serious the breach, the more it will pull towards exclusion of the evidence: Beaver, at para. 120; Grant, at para. 74.

31 On the question of impact, the "extent to which the Charter breach actually undermined the interests protected by the right" must be carefully evaluated: Beaver, at para. 123; Grant, at para. 76. The potential impact also falls along a spectrum. The greater the impact, the greater the risk that the admission of the evidence would bring the administration of justice into disrepute. The presence, or absence, of a causal connection between the violation and the evidence sought to be excluded, while not determinative, is a factor to consider at this stage. Like the first factor, the more serious the breach, the more it will pull towards exclusion of the evidence: Beaver, at para. 123.

32 The third factor, society's interest in the adjudication of a case on its merits, asks whether the truth-seeking function of the criminal trial process would be better served through the admission or exclusion of the evidence. The more reliable and important the evidence to the Crown's case, and the more serious the offence, the stronger the societal interest in an adjudication on the merits will be. This factor will almost always pull in favour of admission of the evidence: Beaver, at para. 129; Grant, at paras. 79-83, 115.

33 All of these factors must be weighed together to assess whether the admission of the evidence would bring the administration of justice into disrepute. Where the first two factors make a "strong case for exclusion", the third will rarely, on its own, justify admission. That said, "where the cumulative weight of the first two lines of inquiry is overwhelmed by a compelling public interest in admitting the evidence, the administration of justice will not be brought into disrepute by its admission": Beaver, at paras. 117, 133-34. As Doherty J.A. put it in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at paras. 62 and 63:

The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interest in an adjudication on the merits, pulls in the opposite direction toward the inclusion of the evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case.

In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence. [Citations omitted.]

34 Even in circumstances where the second factor does not pull strongly towards exclusion, admission may still bring the administration of justice into disrepute. As the Supreme Court held in R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para 141:

[It is] possible that serious Charter-infringing conduct, even when coupled with a weak impact on the Charter-protected interest, will on its own support a finding that admission of tainted evidence would bring the administration of justice into disrepute. It is the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion. [Emphasis in original.]

35 For the reasons set out below, I conclude that the trial judge made reversible errors in her assessment of the first two Grant factors, and in her conclusion that both favoured the admission of the evidence sought to be excluded.

(i) First Grant Factor - Seriousness of the Charter Violation

36 Although the officers involved offered no explanation for their complete failure to facilitate the appellant's communication with counsel, the trial judge concluded that this occurred as the result of an understandable oversight in a high adrenaline situation that was compounded by the appellant's confusing response to a second inquiry about whether he wished to exercise his right to counsel at the police station. For ease of reference, I repeat her comments, at paras. 103 and 104:

While I am mindful that Constable Alias was unable to provide a verbal explanation for not facilitating the applicant's phone call to counsel, I do think the circumstances shed some light on the issue. This was a high-risk takedown where a loaded restricted weapon was recovered. This was not just any weapon, it was a sawed-off shotgun. The weapon by its very appearance is menacing. It is common sense that the officers would only start to appreciate the real danger they were in after they located the firearm - adding to an already high adrenaline situation. Although not excusable - it is understandable how this circumstance resulted in Detective Constable Alias' oversight in facilitating the applicant's call to counsel.

On the booking video, the applicant in the presence of Constable Alias was asked by Sgt. Powis if he wanted to call counsel. The applicant responded by saying something about calling sureties. In my view, this response added a layer of confusion to the situation. [Emphasis added.]

40 The trial judge's characterization of the police conduct that gave rise to the breach clearly tainted her s. 24(2) analysis. That is, by characterizing the breach as an "honest mistake" and "oversight", and thereby placing it at the lower end of the spectrum of seriousness, the trial judge had little choice but to find that the first Grant factor pulled towards admission. In reality, given the complete and unexplained denial of the appellant's right to speak with counsel over a prolonged period of time - from his arrest around 11:00 p.m., overnight until at least his show cause hearing - the first Grant factor could not have favoured admission. While it was open to the trial judge to find that the breach was unintentional - because it clearly was not deliberate - it was unquestionably the result of extreme carelessness. There is no doubt that it would be reasonable for the police, in some circumstances, to hold off on implementing the right to counsel - for example, to complete a strip search for safety purposes. However, the police had a duty to provide the appellant with a reasonable opportunity to speak with counsel without unreasonable delay, but never provided him with an opportunity to do so. Rather than favouring inclusion, the first Grant factor pulled toward exclusion.

42 In R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, this court allowed an appeal and substituted acquittals for drug offences on the basis that the evidence should have been excluded under s. 24(2). Upon arrest Mr. Rover advised the police that he wanted to speak to a lawyer, but was not afforded that opportunity until almost six hours later. In that case, a police policy prevented Mr. Rover from contacting counsel until after the police obtained a warrant and commenced their search. Doherty J.A. found that, given the police policy and the six-hour delay, the s. 10(b) breach was serious and the first Grant factor therefore favoured exclusion. I appreciate that the breach in Mr. Rover's instance was serious, at least in part, because it arose from a systemic practice, but the breach in the present case is arguably more serious given the appellant was never afforded the opportunity to speak with counsel.

43 In R. v. Noel, 2019 ONCA 860, the appellant was arrested during the execution of a search warrant at his home, where drugs were found in his bedroom. A police officer left a message for duty counsel to call back and speak with Mr. Noel, but never followed up to ensure contact. While the trial judge found a s. 10(b) violation, she admitted the evidence. On appeal this court concluded that the breach was serious and warranted exclusion, writing, at paras. 20, 29, 31, and 32, that:

[T]here is no evidence that Mr. Noel ever succeeded in speaking to counsel. The evidence was that at 1:25 a.m., approximately three hours after his arrest, Officer Westcott left a message with duty counsel on Mr. Noel's behalf, but there was no evidence that anyone followed up to ensure contact occurred. It is true that the onus is on Mr. Noel to establish the s. 10(b) breach, and that he did not lead affirmative evidence that he never managed to speak to counsel. That does not change the fact, though, that there is no affirmative proof that he did. The s. 10(b) violation found by the trial judge was serious. Three hours passed between the time of the arrest and the first confirmed attempt by the police to secure counsel for Mr. Noel. When Mr. Noel arrived at the station at 11:10 p.m., entirely under the control of the police, no one took charge of ensuring that he could speak to counsel as he had requested. Instead, he was placed in a cell and left there. It was not until 1:25 a.m., now about two and a half hours after Mr. Noel's arrival at the station, that Officer Westcott left a message with duty counsel, specifically on Mr. Noel's behalf. There is then no confirmation that counsel actually spoke to Mr. Noel. From the beginning, the police appear to have had a somewhat cavalier attitude about a fundamental, important, and long-settled Charter right to consult counsel without delay. Indeed, the trial judge characterized the police conduct in this regard as demonstrating "carelessness" - a characterization with which the Crown does not take issue.

44 It is difficult to see how the appellant's situation is any different than Mr. Noel's. In fact, because no attempt was made to facilitate contact with counsel, the facts in the appellant's case are arguably more problematic.

45 While the trial judge did not have the benefit of this court's decision in R. v. Jarrett, 2021 ONCA 758, 498 C.R.R. (2d) 38, it closely resembles the facts in the appellant's case. The police, who arrested Mr. Jarrett for a bail violation, located and seized a fanny pack which contained drugs and money. The trial judge, while finding that the police violated s. 10(b) by leaving only a single message for counsel of choice (and then failing to follow up for 30 hours after arrest), admitted the evidence. Zarnett J.A., writing for the court, held that a proper s. 24(2) analysis would have resulted in exclusion. In addressing the seriousness of the breach, Zarnett J.A. wrote, at paras. 47-48, that:

First, the breach ought not to have been viewed as anything other than serious, given the extent the police conduct departed from the content of the appellant's constitutional right. The duty of the police was to immediately provide the appellant with a reasonable opportunity to speak to counsel. Viewed from that perspective, the breach was very substantial - the delay in providing the opportunity to speak to counsel was about 30 hours.

Second, although the breach was arguably inadvertent - that is, not intentional and there was no evidence the delay was caused by a systemic practice - the circumstances did not take the case out of the serious breach category. The single, unsuccessful attempt to contact counsel referenced by the trial judge pales in comparison to the length of time over which the police failed to take any further steps to fulfill their duty. Indeed, immediately after describing the breach as "arguably inadvertent", the trial judge noted that after their initial attempt to contact counsel, "[n]o officer made any further attempt to either contact counsel, to ascertain whether counsel had contacted [the appellant], or to assist [the appellant] with contact from the hospital." The police are expected to comply with the Charter. The absence of evidence that the police's failure to comply with the Charter was systemic is not a mitigating factor when assessing the seriousness of the breach. [Emphasis in original; citations omitted.]

46 In my view, Zarnett J.A.'s reasoning applies with equal force to this case. The trial judge erred by minimizing the Charter-infringing police conduct because it was not "part of a larger systemic problem". As in Jarrett, the absence of a systemic problem is not a mitigating factor. Nor does the fact that the breach was the result of an "honest mistake" render it less serious. Such inadvertence "[does] not take the case out of the serious breach category". In any event, the breach in this case is arguably more serious - while in Jarrett there was one attempt to place the accused in touch with counsel, here there were none.

47 The trial judge improperly downplayed the seriousness of the failure by the police to fulfill their constitutional obligations. She specifically fell into error by speculating about why the police did not facilitate contact with counsel, by treating the absence of a systemic problem as a mitigating factor, and by effectively equating inadvertence with good faith.

48 Again, while the breach here may not have been deliberate or part of a broader systemic problem, the officers' complete failure to fulfill their constitutional duties over a prolonged period of time was serious and inexcusable. The trial judge erred by concluding that the first Grant factor favoured admission.

(ii) Second Grant Factor - Impact of the Breach on the Appellant's Charter-Protected Rights\

50 In my view, the trial judge erred by focusing on the fact that there was no self-incrimination to the exclusion of other factors that were relevant. Undoubtedly, the lack of a causal connection can attenuate the seriousness of a s. 10(b) breach: Grant, at para. 122; Rover, at para. 43. However, in this case, the trial judge erred by failing to acknowledge that there are other interests protected by s. 10(b) beyond the principle against self-incrimination.

51 In addition to providing a safeguard against self-incrimination, contact with counsel also provides a detained person with information about the procedures they will be subjected to, advice on questions about how long their detention is likely to be, and guidance on what can or should be done to regain liberty: Noel, at para. 26; Rover, at para. 45; and Suberu, at para. 41. These interests were surely at play in this case. The appellant was detained overnight and brought to a show cause hearing the following morning. As a result, he was deprived of the potential benefit of having information from counsel on what was going to happen, and what could be done to obtain release.

54 Where, as here, a trial judge's s. 24(2) ruling is unreasonable or impaired by errors in principle, this court is entitled to intervene and conduct the s. 24(2) analysis afresh: R. v. Campbell, 2019 ONCA 258, 145 O.R. (3d) 357, at para. 23; Grant, at para. 129.

55 As I have explained, the breach of the appellant's s. 10(b) rights cannot be viewed as anything other than serious. His access to counsel upon arrest was not merely delayed - it was denied altogether for a prolonged period due to carelessness. The only available conclusion is that the first Grant factor pulls towards exclusion of the firearm and ammunition.

56 Similarly, the impact of the breach on the appellant's Charter-protected interests was significant. The police completely denied him a constitutional right which has been termed a "lifeline for detained persons": Rover, at para. 45. The appellant was not only unable to obtain legal advice, but also did not have the psychological benefit of speaking to counsel to understand his rights, or the opportunity to get information from counsel on how he could go about regaining his liberty. The second Grant factor thus also pulls towards exclusion of the evidence.

57 As for the third Grant factor, it is undisputed that society's interest in an adjudication on the merits almost always favours admission of the evidence: McGuffie, at paras. 62-63. That is also the case here given the relatively serious nature of the offences. The real question is whether the pull towards inclusion by the third factor outweighs the pull towards exclusion by the first and second factors. In my view, it does not.

58 As I noted above, the Supreme Court held at para. 134 of Beaver that where the first two Grant factors "make a strong case for exclusion" of the evidence, the third factor "will seldom tip the scale in favour of admissibility". This is not one of those rare cases.

59 In so concluding, I am mindful of the Supreme Court's decision in R. v. Omar, 2019 SCC 32, [2019] 2 S.C.R. 576, which expressed substantial agreement with the dissenting reasons of Brown J.A. in R. v. Omar, 2018 ONCA 975, 144 O.R. (3d) 1 ("Omar (ONCA)"). Of particular relevance are Brown J.A.'s conclusions that 1) the third Grant factor should not be subordinated to a position where it plays no practical role in the balancing exercise, and 2) firearms should not be treated as fungible with any other piece of evidence given their "distinctive nature", namely their "lethal threat" to public safety: Omar (ONCA), at paras. 119, 135.

60 Yet Brown J.A. also recognized that these principles are not absolute and, practically speaking, "there is no 'firearms exception' requiring that guns obtained in breach of Charter rights be admitted into evidence": Omar (ONCA), at paras. 122-23. Indeed, the overriding consideration in any s. 24(2) analysis is whether admitting the evidence would bring the administration of justice into disrepute.

61 In the circumstances of this case, it would. The breach of the appellant's s. 10(b) rights was so serious and injurious of his Charter-protected interests that no amount of public clamour for a conviction could tip the scales towards inclusion. The integrity of the justice system would be compromised if, in these circumstances, this court were to effectively vindicate the inexcusable Charter breach by the police. Simply put, the administration of justice is better served by excluding the evidence than by admitting it.

[137] The defence also relied upon R. v. Le, 2019 SCC 34 and, in particular, for the principles set out in paragraphs 139 to 168, which I have considered carefully. This was a case of clear and acknowledged police trespass and had connotations of racial profiling.

Crown Position

[138] The Crown submits that in all of the cases relied upon by defence the facts indicate that something more serious is at play, for example, deliberate police policy or that the accused was never afforded the implementation of his rights, or that the case involved trespass and racial profiling connotations.

[139] The Crown relies on case law where the police omission to implement the right resulted from carelessness or even negligence but was not found to be deliberate, or part of police policy or part of a systemic problem. It was a mistake on the part of the police in Mr. Wilson’s case. The police conduct is not as serious as in Rover, Pino or Whittaker.

[140] The Crown stresses that the finding of the real evidence was in no way causally connected to the breach. No evidence was found and no attempt to secure a statement occurred during the delay to implement the s. 10(b) right.

[141] The Crown stresses that there is strong societal interest in adjudicating these charges on the merits in view of the very serious drugs, weapons and cash found by police which could result in a significant custodial sentence for Mr. Wilson if convicted. On the evidence, a significant drug sale operation was going on in Unit B.

[142] The Crown concedes that this was a serious breach for which the police can be rightly criticized. The Crown concedes that there is no evidence as to how or why DC MacNeish or PC Bradshaw came to realize that the s.10(b) right had not been implemented or why the booking officer did not implement the right at 5:00 PM as the other officers exit expected that he would do.

[143] The Crown points out that once DC MacNeish realized that the lawyer call had not been made by Mr. Wilson, it was immediately implemented, and was done and completed before the strip search.

[144] The officers frankly admitted that Mr. Wilson should have been afforded a call to his lawyer when he was being booked at Kingston police station, that that was an important right to which he was entitled to, and to which every accused is entitled, and that it was a mistake on the part of the police that that was not done.

Crown Cases.

[145] In R. v. Lenardt, 2019 ONCA 416, the court confirmed that the accused had the onus to show that the evidence should be excluded under s. 24(2). (See also R. v. Griffith, 2021 ONCA 302, para. 51). The court stated that although there need not be a causal relationship to establish a case for exclusion, the absence of any such connection is a factor weighing against exclusion.

[146] In Griffith (cited above), the delay by police was found to be unintentional and situation specific rather than systemic. There was no causal connection between the breach and the finding of the evidence, but there was a temporal and contextual connection (para. 55). The court confirmed that the connection between the breach and the discovered evidence may be causal, temporal, or contextual, or any combination of the three connections. In that case, police did not try to elicit information from the accused during the delay. The court found that even if the delay was unintentional, what happened reflected an unacceptably negligent approach to safeguarding the accused’s s. 10(b) rights.

59 Here, the trial judge found that the police breached s. 10(b) by delaying access to counsel until after the execution of the warrants and then for another hour and twenty-minutes. He also considered the police conduct in failing to inform the appellant of the reason for the delay. He distinguished Rover because he found the delay in accessing counsel here was because of case-specific concerns for police safety and evidence preservation. He concluded that although the s. 10(b) breach and the failure to inform the appellant of the reason for the delay were "not done in bad faith", they involved "serious misconduct, which in the analysis favours exclusion".

60 I agree with the trial judge's final assessment that the s. 10(b) breach was serious, even though I would find the breach in accessing counsel as having been briefer than the trial judge found. I also agree that the police's failure to inform the appellant of the reason for the delay in accessing counsel aggravated the s. 10(b) breach. This was a significant breach of established obligations under s. 10(b).

61 I would add that the seriousness of the s. 10(b) breach arising from the one hour and twenty minutes of unjustified delay in accessing counsel must be understood in the particular context of this case. The police had already delayed access to counsel for two hours and twenty-five minutes to execute the warrants. Once the searches were completed, the police should have acted with particular urgency in providing the appellant access to counsel. Instead, they let him wait in his cell without access to counsel for another hour and twenty minutes.

63 I also note that the delay in accessing counsel after the searches were completed was left largely unexplained. There is no evidence to permit a further finding -- there is no evidence of a pattern of ignoring constitutional rights during detention, of a deliberate decision to do so, or any evidence of other constitutional breaches while the appellant was detained. This lack of evidence bears on whether the appellant has met his onus under s. 24(2) of establishing that the admission of the evidence would bring the administration of justice into disrepute: Hobeika, at para. 76; Lenhardt, at para. 12.

64 The only evidence in the record pointing in any direction appears to suggest that the failure to provide access to counsel after execution of the search warrants was a fact-specific oversight, albeit a serious one. D.C. Mignardi testified that after executing the warrants she headed back to the station and "started working on the ... case" by inputting information, such as the record of the arrest, in the police computer system. She explained that there is pressure to "make sure all your notes [are] in for disclosure purposes right away". She did not speak to the appellant. At some point, she learned from another officer that the appellant wanted to contact his lawyer. At 7:40 p.m., she helped him to do so. She then returned to inputting information in the police computer system. She testified that the police did not set out to intentionally delay the appellant's right to counsel and there was no advantage to the investigation or prosecution in doing so. She testified that she was trying to fulfill the appellant's Charter rights, and specifically, his right to counsel.

65 In mentioning this evidence, I should not be taken as suggesting that the police can delay access to counsel to input information in their computer system or that an officer's assertion that they did not intend to breach constitutional rights is itself determinative. I simply highlight that the only evidence in the record appears to suggest that what happened here was a fact-specific oversight and not a systemic or intentional breach of the appellant's s. 10(b) rights.

66 Even if unintentional, what happened here reflected an unacceptably negligent approach to safeguarding the appellant's s. 10(b) rights. The police conduct violated an established constitutional obligation. As this court has noted, "[t]he law around s. 10(b) is clear and long-settled. It is not difficult for the police to understand their obligations and carry them out": R. v. Noel, 2019 ONCA 860, at para. 34. The officers' collective negligence in failing to uphold the appellant's s. 10(b) rights precludes a finding of good faith: see Le, at paras. 143, 147; Pileggi, at para. 119; and Hobeika, at para. 81.

67 A serious breach of an established constitutional right supports exclusion of evidence under s. 24(2), even if the breach is not deliberate or systemic or part of a pattern of police misconduct: Harrison, at paras. 24-25; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 44; and Hobeika, at para. 82. That principle applies here.

(ii) Impact of the breach on the appellant's Charter-protected interests

69 The s. 10(b) right to retain and instruct counsel without delay and to be informed of that right allows a detainee to obtain advice about how to exercise their rights relevant to their legal situation: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 21; R. v. Wong, 2015 ONCA 657, 127 O.R. (3d) 321, at para. 77. This helps ensure that a detainee's choice to speak to the police is free and informed and guards against the risk of involuntary self-incrimination: Suberu, at para. 40; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 25; and Wong, at para. 77. As Doherty J.A. explained in Rover, the right to counsel is a "lifeline for detained persons" that provides detainees with both legal advice and psychological benefits by conveying to them that they are not at the mercy of the police while detained: at para. 45; see also Pileggi, at para. 123.

71 In appropriate cases, the lack of a causal connection can mitigate the impact of the infringement: Grant, at para. 122; Rover, at para. 43; and Pileggi, at para. 120. I also note that the police did not try to elicit information from the appellant, thus avoiding an aggravating feature found in several other cases: see e.g., La, at paras. 47-48; McSweeney, at paras. 79-80; R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242-43, 1245; and R. v. Prosper, [1994] 3 S.C.R. 236, at pp. 280, 284.

72 I also agree with the appellant that the trial judge erred in describing the impact of the breach of s. 10(b) on the appellant's Charter-protected interests as "minimal". The appellant was deprived of the "lifeline" of counsel without justification for an hour and twenty minutes, after he had already been deprived of access to counsel with justification for two hours and twenty-five minutes. He was also not told the reason for the delay. This breach impacted the appellant's Charter-protected interests, even if the police did not aggravate the breach by seeking to elicit information from him.

[147] The court noted that the breach in that case was less significant than in Rover, La and Noel, para. 73, and was comparable to or less significant than in Hobeika, and Pileggi, para.74.

[148] The court in Griffith found the delay to be moderate “along the continuum of s. 10(b) breaches in past cases”, para. 75.

[149] The court went on to conclude that the admission of the evidence would not bring the administration of justice into disrepute:

(iii) Society's interest in the adjudication of the case on the merits

76 The last line of inquiry considers factors such as the reliability of the evidence and its importance to the Crown's case. It asks whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence or by its exclusion: Grant, at para. 79; McSweeney, at para. 81. Reliable evidence critical to the Crown's case will generally pull towards inclusion: Harrison, at paras. 33-34; McGuffie, at para. 62; and McSweeney, at para. 81.

77 Here, the gun and drugs are reliable evidence and essential to the Crown's case for what are extremely serious offences. The admission of this evidence would better serve the truth-seeking function of the criminal trial process than its exclusion. I therefore agree with the trial judge that society's interest in the adjudication of the case on the merits favours the admission of this evidence.

Balancing the factors

78 The final step in the s. 24(2) analysis involves balancing the factors under the three lines of inquiry to assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice. Such balancing involves a qualitative exercise, one that is not capable of mathematical precision: Harrison, at para. 36. As Doherty J.A. recently noted in Hobeika, "[t]he nature of the s. 24(2) inquiry means, in some cases, different judges will reasonably arrive at different conclusions with respect to admissibility": at para. 89.

79 Here, I have concluded that the evidence was properly admitted under s. 24(2). I say this for several reasons. The breach of s. 10(b), although serious, appears to have been situation-specific and isolated, rather than institutional or systemic. It has not been established that the breach was deliberate or intentional. The breach only moderately impacted the appellant's Charter-protected interests. The evidence, consisting of the loaded gun and drugs, was obtained through a lawful search incident to arrest and, because it was not causally related to the s. 10(b) breach, was not compromised by the breach of s. 10(b). In these circumstances, excluding the evidence would only punish the police -- which is not the purpose of s. 24(2) -- and would damage, rather than vindicate, the long-term repute of the criminal justice system: Grant, at para. 70; Hobeika, at para. 90; and Pileggi, at para. 127. It would allow an apparently unintentional, situation-specific police-slip that had only a moderate impact on Charter-protected interests to lead to the acquittal of an armed and dangerous drug trafficker in a city already plagued by gun violence.

[150] In R. v. Hobeika, 2020 ONCA 750, the court reaffirmed that “s. 24(2) requires the accused to establish having regard to all the circumstances that the admission of the evidence in the preceding would bring the administration of justice into disrepute”, (para.76). The court noted that in Rover, the deliberate routine police protocol in practice replaced the narrow, case specific exception to the constitutional right to speak to counsel without delay that routinely resulted in delays for an indeterminate time, whenever the police, for whatever reason, deemed appropriate before applying for a search warrant. The court concluded in that case:

[88] On the evidence adduced at trial, the breach of Hobeika's s. 10(b) rights cannot be characterized as the product of an improper police protocol, or a systemic failure by the police involved in this investigation to meet their constitutional obligations. On the evidence, the breach was a situation-specific, isolated failure, albeit a serious one, by the officers who had custody of Hobeika during the relevant time period.

[89] In R. v. Harrison, 2009 SCC 34, at para 36, former Chief Justice McLachlin emphasizes the qualitative nature of the balancing process engaged under s. 24(2). The nature of the s. 24(2) inquiry means, in some cases, different judges will reasonably arrive at different conclusions with respect to admissibility. I think this case falls into that group.

[90] I come down on the side of admissibility. To exclude the evidence obtained in the searches of the condominiums and Hobeika's vehicle strikes me as using s. 24(2) more to punish the offending police officers than to vindicate the long-term repute of the criminal justice process. The appellant has not established the admission of the evidence obtained in the searches would, in all the circumstances, bring the administration of justice into disrepute.

[151] I have also considered R. v. Do, 2019 ONCA 482 where the court concluded,

14 However, the Grant factors (from R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353) lead us to a different conclusion than in Pino. In our view the s. 10(b) breach was not strategic, nor was it serious or systemic. There was no deliberate police practice of the sort described in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135. The impact of the seizure of the house key from the appellant was minimal, because the validly obtained admissible evidence already connected her to the bungalow where the grow-op operated. As evidence, the key was real and reliable. Society has an interest in the appellant's trial on the merits, which favours the admission of the key.

[152] In R. v. Pileggi, 2021 ONCA 4, the court found that the violations of the accused s. 10(b) rights were temporally and contextually connected with the discovery of the drugs at his residence. It held that a causal connection is not required to pass through the s. 24(2) gateway. It cited the Lenhardt and Do principle that the absence of a causal connection is a factor weighing against exclusion. It noted that the case did not have some of the aggravating features such as was seen in Rover and Noel. The court held that the facts in the case were more similar to those in Hobeika. The court found that the evidence demonstrated that this was a fact specific delay. The court found that the breach was serious, and that the fact that the accused’s rights fell through the cracks precluded a finding of good faith. The seriousness of the breach favored exclusion.

[153] However, the court found that the impact on the rights of the accused was not serious. There was no causal connection which mitigated the infringement. Significantly in that case, the record was clear that it was always the intention of the police to put the accused in touch with counsel and that efforts to do so were conveyed to the appellant. The court found that the long-term repute of the administration of justice did not favour exclusion of the evidence in that case. Although the breach was serious, it was situation specific. The evidence was discovered by virtue of a properly issued search warrant that police executed in a reasonable manner. To exclude the evidence would only serve to indirectly punish the officers.

[154] In R. v. Jeyakanthan, 2023 ONSC 5370, Justice Molloy found that the initial delay in placing the first call was too long and the failure to place a second call was even worse. She found the police conduct in delaying a telephone call to the second of two lawyers requested by the accused to be “outrageous”.

120 However, the police conduct with respect to implementing Jayson's right to counsel is far more serious. There can be no excuse for the delays in attempting to contact either of Jayson's lawyers of choice. The initial delay in placing the first call was too long and the failure to place a second call was even worse. Further, the failure to attempt to contact the second named lawyer until 15 hours after booking was outrageous. I recognize that the officers attempted to put Jayson in touch with duty counsel, but even those attempts were inappropriately handled. Instead of telling him that Mr. Locke had not returned the call and giving him the option of duty counsel given that it was a Sunday morning, they simply placed the call to duty counsel without any explanation or consultation with him. The conduct of the officers was not deliberate, nor was it for an ulterior purpose. That would have been worse. Neither was there a systemic cause, apart from the general disorganization that flowed from no specific person being responsible for ensuring the rights to counsel were implemented. However, the overall conduct was very serious, albeit not at the very top of the spectrum. Therefore, the first of the Grant factors points towards excluding the evidence.

121 The delay in having access to counsel had minimal impact on the accused. The police made no attempt to obtain a statement from Jayson, and he did not volunteer anything. Although there was unacceptable delay in placing the calls, the lawyers never called back in any event. Further, Jayson was aware he could have talked to duty counsel if he felt an urgent need to get advice, but he elected to wait until he could talk to his own lawyer, which was his right.

122 The second factor under Grant does not support the exclusion of the evidence.

123 As is typically the case, the third factor favours admitting the evidence. There is a strong public interest in determining cases of this nature on their merits. Two loaded firearms tossed under a car in an alleyway accessible by members of the public is an enormous threat to public safety. It is also horribly dangerous to carry loaded firearms around in the city, particularly in a crowded McDonald's. Even worse, displaying the firearm in a threatening manner inside the McDonald's could easily have led to bloodshed, if not death to innocent members of the public.

124 There is nothing about the police conduct in this case that cries out for the court to distance itself for fear of being taken as condoning it. Mistakes were made. The police could have done a better job. However, given the minor impact on any Charter rights of the accused and the strong public interest in a trial on the merits, the balancing of the Grant factors is strongly weighted towards admitting the evidence. I am confident that admitting the evidence in these circumstances is in the interests of justice and would not cause an informed member of the public to lose respect for the justice system.

125 I have also taken into account the cumulative nature of the s. 10 breaches, including what I have found to be the minor breach with respect to the delay in fully advising Mr. Jayson of the jeopardy he was facing. I remain of the view that when everything is weighed in the balance, the interests of justice support a trial on its merits and that excluding the evidence of the guns from this case would bring the administration of justice into disrepute.

[155] The case of R. v. DeSilva, 2022 ONCA 879 bears similarities in fact to Mr. Wilson’s case. The officers could not explain why the accused was not provided with access to counsel earlier. The officers tended to non urgent tasks such as paperwork and photographing evidence instead of implementing the accused’s s. 10(b) rights. The court found that there was no evidence that the police delayed access to counsel strategically or attempted to elicit inculpatory statements from the accused during the delay. The court held that while that did not render the police conduct any less of a breach, it is a factor that may be considered in assessing the severity of the impact of the Charter breach on the appellant’s protected interests under s. 24(2). (para. 87).

[156] The court reaffirmed that the accused hears the onus of establishing that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute thereby justifying its exclusion.

[157] In DeSilva, the court found that that was a case of carelessness and neglect by an experienced officer of his duty to administer important constitutional rights. The seriousness of the police conduct strongly favoured exclusion. The court noted that there was no evidence that the infringing conduct was systemic, and while not a mitigating factor, that fact informs the court’s task of situating the officer’s mistake on a scale of culpability and held that exclusion of the evidence to demonstrate the court’s dissociation from the misconduct maybe less of a concern. (para. 93). The court also noted that the delay was not willful or deliberate or done for any strategic or improper purpose such as to elicit a confession or incriminatory statements from the accused.

[158] The court found the police conduct to be at the moderate to serious end of the scale.

[159] With regard to the seriousness of the impact of the breach upon the accused’s protected interests, the court noted that the breach had no causal connection with the discovery of the evidence. The court said that this was a factor to be considered on the second prong of the Grant test.

[160] That court acknowledged the various safeguards to an accused under s. 10(b). That court was dealing with a one hour delay, conceded by the Crown to be a breach. The court specifically noted that the appellant did not incriminate himself or volunteer any information at all during the delay. It noted that there was no indication that he would have regained his liberty earlier had there been no delay in accessing counsel. The impact of the delay was found to be minimal,

102 Where there is no causal connection between the breach and the discovery of evidence, and the accused did not incriminate himself, this court has held that the impact of a section 10(b) breach is not sufficiently serious to warrant exclusion of the evidence: Keshavarz, at paras. 112-16. Thus, the second Grant factor favours admission.

[161] With respect to society’s interest in the adjudication of the case on the merits, the court said,

103 Third, there is strong societal interest in the adjudication of this case on its merits. While the public has "a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high", the public also has "a heightened interest in seeing a determination on the merits where the offence charged is serious": R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 34.

[162] That case involved a large quantity of dangerous and highly addictive drugs in the possession of the accused en route to a nightclub on a weekend in a busy area of downtown Toronto while in possession of substances that spawn violence in public places and harm the community.

[163] The court held that while the misconduct of the police was serious, it was not sufficiently grave to justify exclusion in light of its minimal impact on the accused’s interests.

Analysis

Mr. Wilson’s Case

Grant Factor 1

[164] The police acknowledged the importance of implementing Mr. Wilson’s s. 10(b) rights. They assumed that that would be done at the time of his booking, around 5:00 PM. There is no evidence before this court as to why that was not done at that time, and there is no evidence as to what brought that situation to the attention of the arresting officer around 9:52 PM. The audio and video of the booking area is not available and there is no documentation with respect to the booking of Mr. Wilson.

[165] As Justice Molloy stated, the onus is on the Crown to explain why these delays occurred and no acceptable explanation was provided in that case or in Mr. Wilson’s case. The officer went on to do non-urgent paperwork rather than implement Mr. Wilson’s Charter rights.

[166] There is no evidence that the delay in this case was deliberate, or part of the police policy, or systemic. However, the evidence in the case indicates that it was not an isolated oversight, insofar as PC Bradshaw made the same mistake with respect to the two accused that he arrested and a third accused. In fact, PC Bradshaw conducted the strip search of Mr. Wilson before implementing the rights to counsel to those 3 accused.

[167] Mr. Wilson had identified his counsel of choice at about 4:40 PM and was given no reason for the delay in speaking to that lawyer.

[168] Mr. Wilson did speak to counsel as soon as the arresting officer realized he had not done so, and he spoke to counsel before the strip search was conducted.

[169] I find that this was a case of carelessness. There is no evidence of bad faith, and I appreciate that that does not equate with a finding of good faith. Mistakes happen. The police acknowledged their mistakes, and that they could have done and should have done a better job for Mr. Wilson.

[170] In all the circumstances, I find that this was a moderate to serious breach, but not at the highest end of the spectrum. Therefore, the first of the Grant factors points toward excluding the evidence.

Grant Factor 2

[171] I have considered the multiple safeguards provided to an accused through s. 10(b). I have not focused solely on the protection against self incrimination. But I have considered the cases that hold that the fact of a non causal connection weighs against exclusion.

[172] In my view, Mr. Wilson’s case is more similar to the cases cited by the Crown, including Griffith, Hobeika, Jeyakanthan and DeSilva than those cited by defence in which the facts were more aggravating in nature.

[173] The police made no effort to secure a statement or other evidence from Mr. Wilson before he spoke to his lawyer.

[174] Mr. Wilson’s implementation rights were delayed. However, he was going to be held for bail the next day. He spoke to counsel well in advance.

[175] His opportunity to understand the legal proceedings that he was facing and the psychological impact of the delay on him was alleviated, unlike the cases where the accused were deprived of the ability to speak to counsel at all.

[176] I find that the impact of the breach was minimal in Mr Wilson’s case and I find that on the evidence in Mr. Wilson’s case, this factor does not weigh in favour of exclusion.

Grant Factor 3

[177] I find that this factor in this case weighs in favour of the admission of the evidence. It is recognized that fentanyl is a highly dangerous drug that can kill and there was a large quantity lawfully discovered by the police very shortly upon entry to the residence. Two significant weapons were found. The evidence suggests that there was a significant drug operation being conducted within the residence for at least the two days while it was under surveillance. There was a large sum of cash found and a significant quantity of fentanyl remaining. The evidence suggests that the drugs were brought in from Toronto for sale in Kingston.

[178] There is nothing about the police conduct in the case that cries out for the court to distance itself for fear of being taken as condoning it. I have found that there was a minimal impact on the Charter rights of Mr. Wilson and there is clearly a strong public interest in a trial on the merits.

[179] I am confident that admitting the evidence in these circumstances is in the interests of justice and would not cause an informed member of the public to lose respect for the justice system.

The Final Balancing

[180] Balancing the three factors, I conclude that the exclusion of the evidence risks bringing the administration of justice into disrepute. The misconduct was serious in this case, admittedly so by the Crown, but it was not sufficiently grave to justify exclusion. I find that the accused has not met the onus on him, having regard to all of the circumstances of this case.

Section 8

Position of the Parties

Defence

[181] The defence made no oral submissions on this issue.

[182] The defence did not submit in his oral submissions that the arrest and detention of Mr. Wilson was unlawful. In his factum, the only mention of this point is in paragraph 50 where it is stated that the applicant disputes the reasonable and probable grounds for arrest.

[183] The defence submits in his factum that because there are inconsistencies between the evidence of officers MacNeish and Birney, and the Strip Search Form, Exhibit 3, and because the audio video recording of the booking area is not available, due to a two year retention period which the officers did not realize existed, the police did not create a proper record of the strip search procedure. The two involved officers testified about the procedure that was conducted but had no duty notes in that regard. The defence submits that the police did not have reasonable and probable grounds to conduct the strip search.

[184] The defence also submits that the strip search was not carried out in a lawful and reasonable manner.

[185] In paragraph 61 of his factum, the applicant takes aim at step number seven of the Golden analysis. (R. v. Golden, 2001 SCC 83). In particular, the defence relies on the evidence of DC MacNeish who he says testified that the door to the room was open and that of PC Bradshaw who testified that there was a period of 30 to 60 seconds during which Mr. Wilson was completely naked. Sgt Birney testified that the door to the room must be closed for privacy purposes.

Crown Position

[186] The Crown submits that the difficulties with respect to the record of the grounds stated for the strip search and of the conduct of the strip search are minor deviations from the Golden guidelines and are insufficient to found a Charter breach. (R. v. Collins, 2023 ONSC 5768).

[187] The Crown submits that the observations of the police during their surveillance and upon their lawful entry into Unit B, together with their experience as drug crime officers, reasonably informed their subjective belief that they had grounds to request a strip search.

[188] The Crown points out that there is no suggestion that the audio video recording of the booking area was deliberately destroyed.

[189] The Crown also submits that the onus is on the accused to establish the breach and that the evidence should be excluded, but that there is no evidence to contradict the officers about any part of the strip search process or to suggest that the search was not reasonable.

Analysis

No Section 8 breach

[190] I find that the arrest and detention of Mr. Wilson was lawful.

[191] There are inconsistencies and difficulties in the record concerning the stated grounds for the strip search and the conduct of the strip search.

[192] These include the differences between the testimony of DC MacNeish and Sgt Birney and the grounds written in the Strip Search Form. The fact that the audio video recording of the booking area where the grounds were stated is not available is not helpful.

[193] On the sworn testimony, the proper procedure was followed to secure permission from a senior officer to conduct a strip search.

[194] There is some confusion as to whether the strip search was conducted in room 159 or room 161. On the evidence, whichever room it was, had audio recording only. However, the audio recording is not available. There are no officer notes as to the conduct of the strip search.

[195] The loss of the audio video recording of the booking area and the loss of the audio recording of the strip search room appear to be as a result of police evidence preservation policy. There is no evidence that these recordings were deliberately withheld or destroyed in the context of this case.

[196] It may be unclear as to whether the door to the room was open or closed on the evidence of DC MacNeish, but I accept the more definite evidence of PC Bradshaw that it was closed.

[197] I also accept the evidence of PC Bradshaw that Mr. Wilson was completely naked for 30 to 60 seconds.

[198] There was no physical contact with Mr. Wilson.

[199] The search was brief.

[200] The reasons stated for permission being requested and granted for this strip search are most reasonable. The evidence found at the residence included a significant quantity of a highly dangerous drug, namely fentanyl, significant cash, a dangerous knife hidden on Mr. Wilson’s person and a Taser and drug paraphernalia. The evidence indicates a significant drug dealing operation over at least two days.

[201] The strip search occurred after Mr. Wilson had spoken to his counsel of choice.

[202] No incriminating evidence was found or obtained in the course of the strip search.

[203] The evidence is that no one other than the two officers involved made any observation of Mr. Wilson being strip searched.

[204] I find that that strip search was conducted with minimal deviation from the Golden guidelines.

[205] I find the sworn testimony in this case established that the officers had reasonable grounds to request and grant the strip search and provided a reliable account of the manner in which it was carried out. In my view, the conduct of the strip search was reasonable and lawful.

[206] The police could have done a better job in documenting and recording the grounds and the strip search process of Mr. Wilson, but I find the strip search did not violate his section 8 Charter rights.

Decision

[207] For these reasons, the Application to exclude evidence for Charter breaches under sections 8 and 10(b) is dismissed.

Released: June 24, 2024 Tranmer J.