His Majesty the King v. Mark Buckley, 2024 ONSC 3948

COURT FILE NO.: CR-23-0055-00 DATE: 2024-07-11

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

His Majesty the King J. McConnell, for the Crown Respondent

- and -

Mark Buckley M. Salih, for the Applicant Applicant

HEARD: July 2 and 3, 2024 at Thunder Bay, Ontario

BEFORE: Mr. Justice F.B. Fitzpatrick

Judgment on Application

Overview

[1] Mark Buckley is charged with unlawfully being in a dwelling house, possession for the purpose of trafficking in a schedule I substance, and possession of proceeds of crime. Mr. Buckley applies for exclusion of all evidence in this case, pursuant to section 24(2) of the Charter, on the basis that his rights were violated under ss. 7, 8, and 10(b) of the Charter. In particular, upon Mr. Buckley’s arrest, he alleges that the police:

(1) failed to provide him with rights to counsel, and to facilitate access to counsel, without delay;

(2) failed to caution him in a timely manner;

(3) failed in their duty to hold off on questioning him until access to counsel was facilitated; and

(4) searched his bag unlawfully.

[2] Mr. Buckley seeks exclusion of all evidence, including drugs, money and identification documents seized by police during the investigation as well as any utterances he made to them prior to his being able to speak to counsel.

Background Facts

[3] The following facts were not disputed by the parties on this application.

[4] On October 4, 2021, Thunder Bay Police were contacted by a civilian named Patrick Elvish. Mr. Elvish had been working in western Canada and had recently returned to Thunder Bay. He was the sole tenant of apartment 303 at 203-210 Leland Street, Thunder Bay. Mr. Elvish advised that when he had returned, he found that two males were occupying his apartment. They had been given a key by Mr. Elvish’s ex-girlfriend. According to Mr. Elvish, his ex-girlfriend owed a $9,000 drug debt to the two men now in the apartment. The men were looking to Mr. Elvish to make good on the debt. Mr. Elvish believed that the males had illicit drugs in the home and suspected they may have “guns”, though he had not seen any. Earlier that day, the two males had directed him to buy a small safe, which he did. Mr. Elvish told police to “check that couch out” as the safe was in the couch area.

[5] Mr. Elvish gave the police the keys to his apartment and permission to enter and search the unit. At approximately 8:50 p.m., eight police officers entered the unit and immediately arrested the two occupants, Mr. Buckley, and his co-accused, Glendon Martin. They were immediately cuffed with their arms behind their backs. They were cooperative and compliant with the officers. The arrest was done quickly and without issue.

[6] Mr. Buckley was not immediately cautioned or read his rights to counsel (RTC). RTC was given approximately six and a half minutes after Mr. Buckley was arrested. He was led outside to the parking lot of 203-210 Leland Street where he was placed in the back of a police cruiser. Upon being read the caution, Mr. Buckley announced that he wished to speak to counsel.

[7] Mr. Buckley was then transported to the Thunder Bay police station. He arrived there at 9:18 p.m., about 30 minutes after the police first entered the apartment. He was booked. At 9:29 p.m., following the booking procedure which took about 10 minutes, the police called a lawyer, Chris Avery, as requested by Mr. Buckley. At 9:41 p.m., Mr. Buckley and Mr. Avery spoke in private in the so called “lawyer room” of the Thunder Bay police department. The landline phone in the room was out of operation. Mr. Buckley was provided with a cellphone. The reception on that line was not good and another cellphone had to be found.

Search of the Apartment: Evidence on the Application

[8] The body camera videos (BCV) from three of the eight officers who conducted the search of the apartment and who were involved with the arrest of Mr. Buckley and Mr. Martin were entered into evidence on this application. PC Scaffeo (number 4064) and PC Dougherty were two officers that were involved in the search, and who testified at the application. The BCV of PC Scaffeo was exhibited on the application. PC Scaffeo testified that he reviewed his BCV, and it accurately depicted what had occurred during the incident in question.

[9] PC Dougherty’s BCV depicted his interaction with Mr. Elvish outside of the apartment and in the parking lot of a nearby supermarket before the police entered the apartment. PC Dougherty testified that he reviewed the BCV, and it accurately depicted what occurred during the incident in question. PC Dougherty’s BCV of the search portion of the evening was not exhibited as counsel agreed it was duplicative.

[10] Other BCVs video exhibited were from PC Zappitelli (number 4002) and PC Popowich (number 4015).

[11] The BCV exhibit was clear, and the sound was good. The lighting in the apartment was sufficient for the video to be of assistance to the court. It too was relatively clear and the audio good.

[12] All three BCV exhibits show the officers lining up outside apartment 303, knocking, and going in announcing “Police”.

[13] In PC Scaffeo’s BVC, at 1 minute and 15 seconds, officers advise Mr. Martin and Mr. Buckley that they are under arrest for being unlawfully in a dwelling house. Mr. Buckley immediately responds and says he “has a key for in here”. He is then asked where is that key and he motioned with his head and said, “in my wallet there”.

[14] At 1 minute and 20 seconds into the BCV of PC Popowich, it shows the above interaction between PC Scaffeo and Mr. Buckley. At that moment, the BCV shows PC Popowich holding a red wallet in his hand. He walks past Mr. Buckley and into the kitchen. At this time, he is pulling Mr. Buckley’s driver’s licence out of the red wallet. At 2 minutes and 4 seconds, Mr. Buckley is asked again if the key is in the wallet, and he responds yes.

[15] At 2 minutes and 12 seconds, at the bottom of the shot of PC Popowich’s BCV, it depicts something like a key on a ring being pulled from inside a zippered pocket of the wallet. The unmistakable metal clink of keys can be heard at this time.

[16] At the same moment in time (2 minutes and 24 seconds of PC Zappitelli BCV) Mr. Martin is asked by PC Zappitelli “where’s your wallet”. He gestures with his head to says it is in a bag and confirms that he has identification in that bag. PC Scaffeo asks Mr. Martin if that is his bag and says, “that bag right there?”. PC Scaffeo picks up what looks like a small black over the shoulder bag from near or on the couch. This can be seen at 2 minutes and 7 seconds of PC Scaffeo’s BCV. He then hands the bag to PC Popowich. A wallet is removed from the bag at 2 minutes and 37 seconds PC Popowich’s BCV. Mr. Martin’s driver’s licence is then shown being called-in to the station by PC Popowich.

[17] At 1 minute and 39 seconds of PC Scaffeo’s BCV, a police officer’s voice is heard, but is not depicted in the camera’s view, and is asking “whose phone is this”. Mr. Buckley says, “that’s mine”.

[18] At about 3 minutes and 30 seconds on PC Scaffeo’s BCV, Officer Polini is seen picking up and searching a small black sachel type bag. Officer Polini says, “whose is this?”. Mr. Martin and Mr. Buckley are shown still standing inside the apartment. The officer then pulls what appears to be a hard ball like substance wrapped in cellophane from the bag. Ultimately, the police identify the substances in the bag as 43 grams of crack cocaine and 7 grams of fentanyl. Additionally, $720 in cash was in the bag.

[19] At that time, PC Dougherty was standing behind Mr. Buckley and then says to the two accused, “so you guys are gonna pull another charge”.

[20] Mr. Martin responds saying “my bag is right there” motioning away from where the officer has just pulled the wrapped item out of the sachel bag. PC Dougherty then says, “you both were sitting on the couch… you both were in this building… you both are catching a charge of proceeds… proceeds over now, another charge proceeds of crime, money, money, money with drugs.”

[21] Mr. Buckley says nothing during this particular part of the interaction with the officers.

[22] Beginning then at 4 minutes and 40 seconds of PC Scaffeo’s BCV, Mr. Buckley is escorted out of the apartment. He is taken downstairs and outside to a parking lot. He is placed in an unmarked police vehicle cruiser at 6 minutes and 20 seconds of PC Scaffeo’s BCV. PC Scaffeo then reads Mr. Buckley a standard caution asking if he understands the charges, unlawfully in a dwelling, possession for the purposes of trafficking and proceeds of crime. PC Scaffeo says he doesn’t know if it will be over or under $5,000. Mr. Buckley is advised that that is what he has been arrested for. He is then advised of his right to retain and instruct counsel without delay, that he has the right to telephone any lawyer he wishes, that he has the right to free advice from any Legal Aid lawyer and is given the number for Legal Aid Ontario duty counsel. Mr. Buckley indicates he understands. He indicates he has a lawyer. PC Scaffeo replies, “we will do that back at the station OK”. PC Scaffeo then advises Mr. Buckley he is not obliged to say anything but whatever he says may be used in evidence. Mr. Buckley indicates he understands.

[23] Mr. Buckley is then transported to the police station where he is booked. The booking video was exhibited at the motion. The Crown is not seeking to rely on any information obtained during the booking process at trial. The parties are agreed on how long it took before Mr. Buckley was in touch with counsel of his choice.

[24] After Mr. Martin and Mr. Buckley were removed from the apartment, at 8 minutes and 22 seconds of PC Popowich’s BCV depicts the police locating a small safe under a compartment on the couch where the two men were first found. Ultimately the police obtained a warrant to open the safe and located 79 grams of cocaine within it.

The Issues

[25] Mr. Buckley alleges two main breaches of his Charter rights. First, he submits that the police violated his section 7 and 10(b) Charter rights. Second, he alleges that police conducted an unlawful search on his personal property contrary to section 8.

[26] In dealing with the first submission regarding sections 7 and 10(b), Mr. Buckley submits that the police:

(1) breached the informational component of section 10(b);

(2) breached the duty of hold off; and

(3) breached the implementational duty concerning his right to retain and instruct counsel without delay.

[27] With respect to the section 8 issue, Mr. Buckley submits that the search of his bag was done without warrant and that the evidence given at this application does not justify an objectively or subjectively valid purpose for the search.

[28] Mr. Buckley also seeks exclusion of the cocaine police found in the safe. He argues that the principles in R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561 (“Pino”), apply. He submits the breaches of his Charter rights are temporally or contextually connected to evidence obtained by the police in the course of the same transaction and therefore satisfy the “obtained in a manner” requirement of section 24(2) of the Charter and should be excluded.

[29] The Crown agrees the articulation of these issues as noted above are appropriate to deal with the application.

The Law

Section 10(b) and Section 7 Right to Remain Silent

[30] Rights to counsel must be provided upon arrest, subject to a suspension for legitimate officer or public safety concerns. Police must be able to turn their mind to the specific facts in the case that give rise to legitimate safety concerns justifying the delay of rights to counsel. The s. 10(b) jurisprudence has always recognized that specific circumstances may justify some delay in providing a detainee access to counsel: see R. v. Rover, 2018 ONCA 745, at para. 26 (“Rover”).

[31] Informational rights are not provided solely as a means of enjoying implementational rights. A detained person requires the immediate assurance that "they are not entirely at the mercy of the police while detained" and are entitled to a "lifeline to the outside world" through which they can learn whether they are lawfully detained, and of their legal rights and obligations relating both to their liberty and the investigation: see R. v. Davis, 2023 ONCA 227, at para. 41.

[32] Police have an obligation under s. 10(b) of the Charter to afford an accused person not only a reasonable opportunity to contact counsel of his choice but also to facilitate that contact: see R. v. Vernon, 2016 ONCA 211, at para. 2. The police have an obligation to “hold off” questioning detainees who have requested a consultation with counsel: see R. v. Hamilton, 2017 ONCA 179, at para. 71.

Section 8

[33] The power to search incident to arrest is an exception to the ordinary requirement for a valid search under s. 8 of the Charter – namely, prior judicial authorization based on reasonable grounds. As recently restated by the Supreme Court of Canada in R. v. Stairs, 2022 SCC 11, at para. 35, the common law power to search incident to arrest is well-established and requires that:

1. the individual has been lawfully arrested;
2. the search is truly incidental to the arrest in the sense that is for a valid law enforcement purpose connected to the arrest; and
3. the search is conducted reasonably.

[34] When the police search a location incident to arrest for the purpose of discovering evidence of the offence, the police must subjectively believe that the search of the location would disclose evidence: see R. v. Caslake, [1998] 1 S.C.R. 51.

Section 24(2)

[35] In this application, if there is a determination that there has been a breach of Mr. Buckley’s Charter rights, the parties agree that this issue will be determined utilizing the well-known three-part test from R. v. Grant, 2009 SCC 32 (“Grant”). This court is to consider:

a) the seriousness of the police conduct in committing the breach;

b) the impact of the breach on the applicants’ Charter-protected interests; and

c) society’s interests in the adjudication of the case on its merits.

[36] Paragraphs 67 through 70 of Grant encapsulate the principles guiding the Supreme Court of Canada, which are binding on me, in conducting a s. 24(2) Charter analysis. These paragraphs emphasize that the focus of s. 24(2) is not only long-term, but also prospective and societal. A breach of the Charter is inherently damaging to the repute of the justice system; s. 24(2) dictates that evidence obtained through such a breach do no further damage to the administration of justice. The focus on s. 24(2) is not aimed at punishing the police or providing compensation to the accused but rather is aimed at addressing systemic concerns.

[37] The case of Grant directs a trier of fact to conduct an analysis. Nothing happens “automatically”. It is an analysis that emphasizes “all the circumstances” and which balances the interests of the accused and those of society. It is context driven. It examines, focuses, and balances the results of the outcome with the events leading up to the question of whether evidence should be admitted in the face of Charter breaches. It focuses on remedy.

[38] In considering the balancing of the three inquiries, the Court of Appeal for Ontario in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, stated at para. 63:

[63] 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.]

Position of the Parties

Issue 1 - Sections 7 and 10(b) Breaches

a. Informational Obligations

[39] There is no issue that there was a 6 minute and 30 second delay from the time police arrested Mr. Buckley until they complied with the informational component of section 10(b). Mr. Buckley argues there was no justification for this delay. PC Scaffeo admitted Mr. Buckley could have been given his right to counsel very soon after the two men were arrested and the police had the scene under control. The Crown bears the onus to justify any delay in providing an accused their rights to counsel. Mr. Buckley submits that the Crown has failed in satisfying the onus based on the evidence presented in this application.

[40] The Crown relies on the evidence of the officers and the BCVs to submit that the informational component was satisfied in a reasonable period of time with respect to Mr. Buckley. The police were searching for guns and drugs. This was a serious situation. In the BCVs, I observe that there was a fair bit of background noise, and from radios and chatter between the officers. The BCV of all three officers exhibited show various officers continuing to search the apartment in the first three minutes or so and until after the two men were taken from the apartment.

[41] The Crown submits that it did not make sense to give Mr. Buckley his RTC in one of the smaller rooms of the apartment as the BCV shows the officers still moving around in different rooms. It was reasonable for the police to escort both men outside to different places where it was quiet and away from the commotion inside the apartment to ensure they could focus on what was being told to them. The delay of 6 minutes and 30 seconds was not unreasonable in the submission of the Crown.

b. Duty to Hold Off

[42] Mr. Buckley relies on the BCVs to demonstrate that the police engaged in interrogation-like questions before he was given his RTC. There is an initial interaction where Mr. Buckley volunteers that he has a key and a friend let him into the apartment. A police officer responds, “no he didn’t.” There are several other interactions, including:

• questioning Mr. Buckley about the key found in the red wallet along with his driver’s licence;
• comments about his socks looking pretty thick; and
• a question about “whose cellphone is this” to which Mr. Buckley responds, “it’s mine”.

[43] Officer Polini searched a satchel and at the same time was holding what appeared to be a cellophane wrapped quantity of drugs and asked both co-accused “whose is this.” Mr. Martin responded. Mr. Buckley does not.

[44] Later while being driven to the station, Mr. Buckley was asked about the apartment key that was in his wallet.

[45] Mr. Buckley submits that these were serious violations of the duty to hold off questioning until a detained person has received RTC and has an opportunity to speak to counsel.

[46] The Crown submits that the utterances about the key and the assertion by Mr. Buckley immediately upon on his arrest that he had the right to be in the apartment, were voluntary. They were not made in response to anything the police did other than to say why the two men were being placed under arrest. The police questioning about the cellphone is irrelevant as the cellphone was not seized or searched by police. The socks question was appropriate as it was further to a search of Mr. Buckley’s person incident to arrest. Mr. Buckley did not answer the question by PC Polini about “whose bag is this.”

[47] The questions in the car about the key are conceded by the Crown to have been ill advised.

[48] The Crown nevertheless argues that none of the verbal interactions between the officers and Mr. Buckley prior to his speaking to counsel at the police station amounted to anything other than innocuous questioning. It was not a circumstance of a functional interrogation.

c. Breach of Implementational Duty

[49] There is no dispute that Mr. Buckley spoke to counsel over a cellphone at the Thunder Bay police station approximately 40 minutes after he had been arrested at the apartment.

[50] Mr. Buckley submits that he should have been given the opportunity to contact counsel by cellphone while sitting in the back of the police cruiser. Alternatively, he should have been given the opportunity to call counsel immediately upon reaching the Thunder Bay police station, prior to being asked the booking questions.

[51] Mr. Buckley submits that the Crown has not met its onus to demonstrate that he was given the opportunity to retain and instruct counsel in a reasonable time frame.

[52] The Crown argues that Mr. Buckley was afforded the opportunity to speak to counsel in a reasonable period of time. The suggestion that he could have talked to counsel from the back of the cruiser was impractical. No cellphone was available other than PC Scaffeo’s, which he is not in the practice of giving to accused persons. Also, there was a rear seat camera activated once Mr. Buckley got in the cruiser. PC Scaffeo was of the belief there was a police policy that that camera was not to be turned off ever when there was a person in the rear of the cruiser. He cited safety concerns and the possibility that evidence might be left in the car once the camera was off.

[53] The Crown justified that the procedure at the station of first conducting a further search of Mr. Buckley’s person both by pat down and by an electronic wand as in the interests of safety. In fact, a small knife was located in Mr. Buckley’s belt at the station. Second, the booking questions sought important information like medical information and immigration status, all of which goes to concerns that might have had to be addressed before or during the time Mr. Buckley was given the opportunity to speak to counsel.

[54] The delay in making a call because of the problem with the landline was appropriately addressed by the police. Any problems with the cell service cannot be attributed to the police.

Issue 2 – Section 8 Breach from Alleged Unlawful Search of Mr. Buckley’s Bag

[55] Police searched two bags located in the apartment. The first was searched after Mr. Martin indicated that his identification was to be found in a small black satchel. The second bag, alleged to belong to Mr. Buckley, was searched about 3 minutes and 30 seconds after the police entered the apartment. Mr. Buckley submits that the search was presumptively invalid as it was done without a warrant and that the police have not provided evidence on this application that objectively and subjectively demonstrates a valid purpose for searching either bag.

[56] The Crown argues that the officers’ interactions with Mr. Elvish gave them reasonable and probable grounds to search the apartment for guns and drugs. Objectively, it was reasonable for the bags to be searched as they were in plain sight and could have concealed a handgun. Subjectively the evidence given by PCs Scaffeo and Dougherty confirm that the police were looking for at least one handgun and drugs in the apartment. Officers are shown looking in cupboards, under the couches, and in closets. They were actively searching the premises while Mr. Buckley and Mr. Martin were present. While the search did not locate a gun, it did locate drugs and the safe that they had been told about by Mr. Elvish. The search of the safe was conducted pursuant to a warrant. There is no dispute that the warrant for the safe was lawfully obtained. In the submission of the Crown, the search of the safe was not temporally or contextually connected to any of the interactions with Mr. Martin or Mr. Buckley. The police expected the safe to be present in that location completely independent of any investigation related to searches of either the person or property of Mr. Martin or Mr. Buckley.

Analysis

Issue 1 – Sections 7 and 10(b) Breaches

[57] I find that the police breached Mr. Buckley’s ss. 10(b) and 7 Charter right to silence by failing to hold off questioning of him in the car on the way back to the station. In all other respects, I find no other breaches of Mr. Buckley’s 10(b) and section 7 Charter rights. I say so for the following reasons.

a. Informational Component

[58] Despite PC Scaffeo agreeing that it was possible for Mr. Buckley to have been given RTC while in the apartment, I am persuaded that the course of action taken by the police was reasonable with respect to this aspect of Mr. Buckley’s 10(b) and section 7 Charter rights. I do not agree with the defence characterizations of police activity as being either lackadaisical or them standing around idle during the first five minutes or so following their entry into the apartment. It is not in dispute that Mr. Buckley and Mr. Martin were compliant, cooperative, and polite when they were placed under arrest. In handcuffing the two men, the police had eliminated a large part of any safety threat they might have posed. I was persuaded on the evidence that the police believed that a gun could be present in the apartment. This is a serious issue. And it is a serious issue for Thunder Bay. Police were still actively searching the apartment when Mr. Buckley was led outside.

[59] I find it reasonable for the police to have acted as they did with respect to this first branch of the duties under section 10(b) of the Charter. I find that the police acted reasonably in balancing their need to conduct a search for an item or items dangerous to the public, to ensure a residential apartment unit was safe, and to maximize Mr. Buckley’s opportunity to be able to focus and understand his RTC rights. That necessitated that Mr. Buckley be removed from the location and placed in a quiet environment where he alone could be addressed by police. I find that 6 minutes and 30 seconds was not an unreasonable delay in all the circumstances that were present in the apartment on the evening of October 4, 2024.

[60] In submitting that the delay of 6 minutes and 30 seconds was unreasonable, Mr. Buckley relies on the decision of Coroza J.A. in R. v. Ahmed, 2022 ONCA 640 (“Ahmed”), and in particular the quote at para. 36 that “even a three minute delay is contrary to the language of “without delay” read strictly”. I am not persuaded by that submission as in my view it represents an unnecessarily parsed reading of the decision in Ahmed. In my view, the Court of Appeal in Ahmed was not setting a hard time limit or number of minutes by which time RTC has to be delivered upon arrest.

[61] I say this based on my reading of the paragraphs that follow the one cited by the defence. In making the comment about “three minutes” at para. 36, Coroza J.A. was discussing the trial judge’s description of the delay as being “fleeting and de minimus”. From paras. 37-39, Coroza J.A. stated the following:

[37] However, when the trial judge’s reasons are read as a whole, I see no error in his analysis. The trial judge understood that s. 10(b) of the Charter places a time-sensitive obligation on the police to inform the occupants of the right to counsel “immediately … subject to concerns for officer or public safety”. [Citations omitted.]

[38] The trial judge cannot be understood to have meant that the delay, in the abstract, was “fleeting and de minimis”. Rather, in my view, it is clear that he found that the delay of three minutes was justified in the specific circumstances of the case. The trial judge reviewed the following evidence, which was telling of the circumstances in which the police found themselves, and which justified the three-minute delay in this case:

• Given the reports of gunshots, there were serious concerns about the possibility that one of the occupants of the vehicle was armed with a firearm.
• It took some time for the officers to persuade Yusuf and Isaac to exit the car so that pat-down searches could be conducted.
• DC Allawneh was not even able to complete his pat-down search of Isaac before DC AB called for the arrest of the occupants.
• Not only were the officers concerned with the possibility that the suspects were carrying a firearm, but they were also aware that another firearm could have been hidden in the Charger. The passenger doors to the Charger had been left open while the pat-down searches were being conducted and the interior of the vehicle was therefore accessible to the three suspects.

[39] I see no basis to interfere with the careful findings of fact made by the trial judge. Nor do I see any basis to interfere with his observation that the arrest scene was “fluid and dynamic”. Indeed, the video of the entire incident supports all of the trial judge’s findings. Accordingly, I would reject the submission that the three-minute delay, in these circumstances, amounted to an infringement of the appellants’ s. 10(b) Charter rights.

[62] In the situation at bar, I find the dynamics of the arrest and the circumstances of an ongoing search for guns and drugs and the state of the scene makes the manner in which the police handled the issue of complying with the informational component of Mr. Buckley’s s. 10(b) right to be reasonable.

b. Duty to Hold Off

[63] I took from the Crown’s submission that PC Scaffeo was “ill advised” to pursue questioning of Mr. Buckley about the apartment key on the way to the station. From the BCV of PC Popowich, at 2 minutes and 10 seconds, a glimpse is caught of a silver object being removed from Mr. Buckley’s wallet. More importantly, the BCV shows, and the audio produces, a sound which I recognized to be that of keys clinking on a key ring. The key or keys is shown being placed back in the wallet before the compartment is zipped up.

[64] From the BCV evidence, PC Popowich and PC Scaffeo do not have the opportunity to discuss the key in the three minutes or so that elapses until Mr. Buckley is removed from the apartment at 4 minutes and 52 seconds of PC Popowich’s BCV.

[65] I do not see the other verbal interactions with either Mr. Buckley or Mr. Martin in the apartment as breaching a duty of hold off. The initial utterances about the keys by Mr. Buckley upon arrest were initiated by him. The questions about the cellphone made sense in the context of the police intending to remove Mr. Buckley and Mr. Martin from the premises. Their personal property had to be identified so it could go with them to the station. A review of their driver’s licences revealed non-Thunder Bay addresses. It was reasonable to conclude on a balance of probabilities that Mr. Elvish’s statement that these two men were not in the apartment with his consent, were corroborated by the difference in the addresses. In that context, figuring out who owned a cellphone that was on a couch in plain sight made sense. Cellphones are important personal items to everybody. Ultimately the police did not search the cellphones.

[66] The questions about the socks were done further to a search incident to arrest. The police had information from Mr. Elvish that the two men might have hidden drugs in their socks. Mr. Buckley had his pants tucked into his socks. The police officer’s question was reasonable in context of what they were looking for and what was presenting at the time.

[67] With respect to the question by Officer Polini about the bag where the cellophane drug package was found, Mr. Buckley did not respond. The question was asked immediately before the drugs were removed from the bag. Timing is everything. The drugs came out quickly thereafter but until the package was in hand, I see it as reasonable for the police to question the two about ownership of the bags because they were going to remove the two permanently from the apartment. It made sense for their personal property to go with them.

[68] Also in my view, the search of the bag was authorized by Mr. Elvish’s consent directing the police to search his apartment for guns and drugs. A bag like the one searched by Officer Polini, would have been a perfect candidate for a hiding place for a handgun. I will deal in more detail with the search in the discussion of Issue 2.

c. The Implementational Component

[69] I was not persuaded by the defence submission that allowing Mr. Buckley to call counsel from the police car was appropriate made sense. There were no reference materials in the car to confirm counsel’s phone number. There was not a cellphone available. Further, not every lawyer answers calls from clients on the first try, and police regularly leave a call back number. The technique proposed by Mr. Buckley would have required the officer to leave a personal number to call back.

[70] Further I agree with the submissions of the Crown that performing a further search on an accused at the station and also completing a booking sheet asking questions about medical conditions among other things was a necessary procedure that engendered a necessary but constitutionally sound delay on a person in custody being able to call counsel. The fact that the landline was not functioning did not cause any significant delay in the ultimate call to counsel being made. This is evident from watching the booking video. Mr. Buckley was able to use a private room in the police station to contact counsel. He was able to do so in a reasonable period of time in my view.

[71] For these reasons I find the police did not breach the implementational aspect of respecting Mr. Buckley’s 10(b) right to retain and instruct counsel without delay.

Issue 2 – Section 8 Breach

a. The Bag

[72] I find that the police search of both black satchel type bags in the apartment, without warrant, was objectively and subjectively reasonable because all the officers in the apartment were looking for guns and drugs. I say this for the following reasons.

[73] I agree with the submission of the Crown that police had the consent of the occupant of the apartment, Mr. Elvish, to search the entirety of the premises. The search was for items particularly dangerous to the public – firearms and drugs. Public and officer safety is a legitimate concern which, in my view, was guiding all the officers in how they conducted the search.

[74] The searches of the two bags were done at different times while police were in the apartment. Both bags were in plain view. Both physically were capable of hiding a handgun. On that basis I see it as objectively and subjectively reasonable for the police to have searched the bags acting on the consent given by Mr. Elvish.

[75] The first bag searched was as the result of Mr. Martin responding to a question as to where his identification was located. It is reasonable for persons to be asked to produce identification upon arrest. Mr. Martin indicated it was in the bag. It was.

[76] The second bag searched located a quantity of drugs. Although PC Polini asked, “whose is this”, neither accused answered in an affirmative way. Mr. Buckley did not say anything.

[77] In my view based on all the circumstances that presented in the apartment that evening – and in the context of the police having consent to search the apartment – the search of the bag the police now say belongs to Mr. Buckley did not violate his section 8 Charter rights.

b. The Safe

[78] Mr. Buckley argues that the Court of Appeal decision in Pino instructs that a causal temporal or contextual connection permits possible exclusion on the basis that the evidence in the safe was located in a manner that would tend to bring the administration of justice into disrepute. Counsel did not submit that a causal connection existed with respect to the safe.

[79] In Pino, Laskin J.A wrote the following at para. 72:

[72] Based on the case law, the following considerations should guide a court's approach to the "obtained in a manner" requirement in s. 24(2):

• the approach should be generous, consistent with the purpose of s. 24(2);
• the court should consider the entire "chain of events" between the accused and the police;
• the requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct;
• the connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections;
• but the connection cannot be either too tenuous or too remote.

[80] It is important to note that in the trial decision in Pino, police officers had been found to have lied to the court. This is serious misconduct. It was an important fact in the Court of Appeal’s analysis from paras. 91-98. That kind of misconduct did not occur here.

[81] I find on the evidence at this application that the search for the safe had nothing to do with the arrest of Mr. Buckley and Mr. Martin. I say this because considering the entire chain of events between Mr. Buckley and the police, the police had the information from Mr. Elvish that the safe was somewhere in the apartment. It was not dependent on the arrest of Mr. Buckley, the search of the bag now alleged to be his, his transport to the station, or his booking and subsequent phone call to counsel.

[82] Police got a warrant to open up the safe once they had it. Mr. Elvish directed the police to look in the area of the couch for the safe. The police would have found it regardless of Mr. Martin or Mr. Buckley being present in the apartment when the police arrived. Mr. Elvish’s information and consent gave the police an entirely independent basis to search for this item unconnected to the arrest of Mr. Buckley and Mr. Martin.

[83] Ultimately after Mr. Martin and Mr. Buckley were gone, the safe was located in a compartment under a couch cushion. I have found there were no Charter breaches of any rights of Mr. Buckley to the point that he was removed from the apartment. It appears the safe was found shortly after he had been removed, however, I remain unsure exactly about the timing as to whether it was found before or after Mr. Buckley and PC Scaffeo had the interaction in the car. The police found the safe after he was gone. They would have found it in any event of the presence of Mr. Buckley.

[84] In my view the connection between the location of the safe and the arrest of Mr. Buckley is too tenuous and too remote to be said that it has a causal, temporal, or contextual or any combination thereof to the evidence and the breach of the duty to hold off.

Section 24(2) Analysis

a. The Seriousness of the Breach

[85] I do not find the breach of the duty to hold off in this case to be serious. It occurred after Mr. Buckley had been read the RTC caution. It was with respect to a key that Mr. Buckley, which Mr. Buckley had volunteered information regarding its location when he was first arrested. I agree with the submission of counsel for the Crown that in hindsight, it could have been dealt with in another way, such as simply taking the key and trying it in the apartment door while PC Scaffeo was there. However, it didn’t happen that way.

[86] The breach was not cavalier or deliberate. It might at best be described as taking an ill-advised “short cut”. Short cuts when it comes to the observance of Charter rights is not to be encouraged or condoned. However, I still am not persuaded that the failure to hold off in the car represented a serious breach of a Charter-protected right when considering the breach along a Grant spectrum. This breach lies on the inadvertent, technical, or minor end of that spectrum. It is not an occasion of reckless or systemic Charter-infringing conduct.

[87] I do not agree with Mr. Buckley’s submission that the other officers on scene were complicit in informational and implementational breaches. As noted previously, I find that the police decision to read Mr. Buckley the RTC caution in the car was reasonable. I do not agree with Mr. Buckley’s argument that arranging a call to counsel in the car was more reasonable or would have effected the result any quicker for Mr. Buckley. The practical concerns made the course of action of allowing him to call a lawyer at the station the most expeditious and reasonable way to comply with this aspect of Mr. Buckley’s right to counsel.

[88] I also was not persuaded after watching how the search was being undertaken from the BCV and hearing the viva voce testimony of the officers called, that the actions of the police in this matter were indicative of some systemic disregard for the fundamental rights of accused persons.

[89] I also disagree with the argument that the search of the bags represented a breach of the Charter rights of Mr. Buckley. An illegal search is a serious matter. It did not occur here in my view.

[90] The seriousness of the breach does not pull strongly in favour of exclusion of the evidence.

b. The Impact of the Breach

[91] With regard to the second branch of the Grant test and the impact on Mr. Buckley, during the process of reading the caution, Mr. Buckley was told by PC Scaffeo that he could contact a lawyer when he returned to the station. This is seen at 7:29 p.m. of PC Scaffeo’s BCV. This was unlike the scenario considered by the Ontario Court of Appeal in Rover (also recently referred to in R. v. Jarrett, 2021 ONCA 758, at para. 52) and cited by Mr. Buckley. In Rover, Doherty J.A. commented on the psychological value of access to counsel without delay and the compromise to security of the person where they are held without explanation and not told when they might speak to counsel. In Rover, the court found that the police did not turn their mind to the need to access counsel and the accused was held for hours without any explanation for the refusal to provide access to counsel and without any indication when the accused could speak to counsel. That fact pattern did not occur in the present case. Police were aware of Mr. Buckley’s 10(b) Charter rights and did facilitate them in a reasonable and timely fashion.

[92] The impact of the breach on Mr. Buckley was minimal. In my view this aspect of the breach does not pull strongly in favour of exclusion.

c. Society’s Interest in a Trial on the Merits

[93] Mr. Buckley concedes that this factor militates in favour of admitting reliable evidence which is central to the case for the Crown.

[94] With respect to the safe, as noted above, I disagree that its location was discovered in any causal, temporal or contextual connection to the chain of events concerning Mr. Buckley. Further as noted above, I am of the view that the police did not in any way breach any Charter rights of the two accused in locating or conducting a warrant backed search of the safe. The evidence from the safe was not constitutionally tainted. Its admission would not tend to bring the administration of justice into disrepute.

Conclusion

[95] None of the three factors militate in favour of exclusion of the evidence located by police during the search of the apartment. In my view, balancing all three Grant factors, exclusion of the drugs, cash and identification evidence obtained in the apartment, including the safe and the utterances of Mr. Buckley in the police car on the way to the station, would bring the administration of justice into disrepute. Accordingly, this evidence shall be admissible at Mr. Buckley’s trial.

[96] For these reasons, Mr. Buckley’s application to exclude evidence for Charter breaches under sections 7, 8 and 10(b) is dismissed.

[97] I request counsel to obtain a date for a thirty-minute case conference before me sometime in the weeks of July 29 to August 2 or August 6 through 9, 2024, to discuss trial logistical issues as this matter is scheduled to the three-week running list commencing October 15, 2024.

“originally signed by”

The Hon. Mr. Justice F.B. Fitzpatrick

Released: July 11, 2024