Ontario Superior Court of Justice

COURT FILE NOS.: CR-22-10000294, CR-22-90000286, CR-23-1000213
DATE: 20241104

BETWEEN:

HIS MAJESTY THE KING

– and –

TALICIA BRYAN

Counsel:
Erin Winocur, for the Provincial Crown and Jason Mitschele, for the Federal Crown
Rubaina Singh, for Talicia Bryan

HEARD at Toronto: June 3-6, September 9, 10, 12, 20, October 1, 17, 2024

BEFORE: J.K. Penman J.

A OVERVIEW

[1] On Sunday, February 14, 2021, Toronto Police Service (TPS) received a 911 call from Talicia Bryan’s mother who reported that Talicia had been assaulted by several females inside her home and was injured. The 911 call led to the possibility of two different addresses, implicating two neighboring police divisions. It was not initially clear what happened, nor where it happened, but a woman was injured and missing. TPS officers were dispatched to both addresses: 19 Western Battery Road Unit 3321 and 39 Queens Quay East.

[2] Concerned for the safety of Talicia Bryan, police entered 19 Western Battery Road Unit 3321. On entry to the apartment police observed drugs and a firearm. Ms. Bryan was located in a different location an hour later. A search warrant was sought and granted for 19 Western Battery Road. In addition to the drugs and firearm, officers found explosives in the apartment.

[3] Talicia Bryan is now charged on a 17-count indictment with offences relating to the possession of the drugs, firearm and explosive material.[^1]

[4] The issues for me to decide in this case are as follows:

• Did the police violate Ms. Bryan’s s. 8 Charter rights by entering her apartment without a warrant; remaining in and searching the apartment before and after she was located; and by subjecting Ms. Bryan to a strip search when she arrived at 14 Division;
• Was Ms. Bryan arbitrarily detained by the police in violation of her s. 9 Charter rights;
• Did the police violate Ms. Bryan’s ss. 10(a) and (b) rights when they failed to inform her of her detention, failed to provide her with her rights to counsel, and by not holding off questioning her. The Crown concedes a s. 10(a) and (b) breach;
• To the extent there are Charter violations, should the evidence of the firearm, drugs, explosive materials and Ms. Bryan’s utterances be excluded pursuant to s. 24(2) of the Charter.

[5] The Crown has also brought an application to have Ms. Bryan’s utterances found voluntary. The defence position is that the utterances are not voluntary.

[6] For the following reasons I am satisfied that there was a violation of Ms. Bryan’s s. 8 rights in the police remaining in apartment pending the search warrant after Ms. Bryan had been located. I am also satisfied that there was a breach of Ms. Bryan’s s.10(a) and (b) rights. Ms. Bryan’s utterances will be excluded pursuant to s.24(2). The evidence of the drugs, firearm and explosive material are admissible.

[7] It is important to put the events of the night into overall context. As the Crown put it, this case is about three investigations, two crime scenes, a broken heart on Valentine’s Day, a gun, drugs and explosives. Multiple police officers from both divisions were detailed to the two addresses, and it was not immediately clear how the two scenes were connected. The police were concerned there had been a kidnapping. The scene where Ms. Bryan was eventually located was chaotic. It was initially unclear what had happened. It is through this contextual lens that one must assess the conduct of the police.

B SECTION 8

i) Did the Police Lawfully Enter Unit 3321 on Exigent Circumstances?

[8] Given this was a warrantless entry, the onus falls on the Crown to demonstrate that what the police did was reasonable in the circumstances: R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 29, citing R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59. Any warrantless search incident to an exigent entry must be justified by imminent risk of the loss, removal, destruction, or disappearance of evidence, or an imminent safety risk to the police or public: see R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at paras. 32-33; Criminal Code, R.S.C., 1985, c. C-46, s. 529.3(2)(a) and (b).

[9] The Supreme Court has stated that in cases of 911 calls, police may enter a dwelling even where the nature of the distress is unknown. They are also not required to take the word of the person who answers the door without further investigation: see R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311, at paras. 16, 21. This is a commonsense proposition as one of the hallmarks of intimate partner violence is its private nature.

[10] In the case of R. v. Lowes, 2016 ONCA 519, police received a 911 call from an individual reporting that she heard her neighbours arguing, including threats by the male to kill the female. Police arrived at the residence and eventually a woman came to the window. Police entered the residence out of concern for her safety and the safety of anyone else in the apartment. Drugs were observed in plain view. The police continued their search and located additional contraband. Mr. Lowes was eventually removed, and the residence was secured until a warrant was granted. The Court of Appeal found that “the police acted entirely within the law in entering the premise as they did”: at para. 14.

[11] Sergeant MacNab worked out of 14 Division. He became aware at 11:46 pm of a radio call regarding a woman in distress. The complainant was on the phone with her daughter, Talicia Bryan. A group of females were in Talicia’s house, had beaten her up, trashed her apartment and Talicia was injured. The subscriber address for Talicia’s phone came back to 19 Western Battery Rd Unit 3321.

[12] Sergeant MacNab was aware that emergency services (DAS) had done a “ping” of the phone, and it came back to Cooper St near the address of 39 Queens Quay. DAS had reached Talicia by phone who said she was at 19 Western Battery Rd Unit 3321. Sergeant MacNab decided to attend that address. He was concerned for the welfare of Talicia Bryan and thought there might have been a home invasion. He was aware from dispatch that a unit from 51 Division was also being sent to the Queens Quay address.

[13] Sergeant MacNab arrived at the Western Battery Road building and spoke to security who confirmed that Talicia Bryan was the current tenant of Unit 3321. Officers knocked on the door, received no response, and observed blood near the door handle. Sergeant MacNab called the number associated to Ms. Bryan with no response. Officer O’Neill contacted Ms. Bryan’s mother who said she was no longer in contact with Ms. Bryan.

[14] Sergeant MacNab made the decision to enter the unit given the concern for the safety of Ms. Bryan. I accept that Sergeant MacNab had a reasonable basis for being concerned that Ms. Bryan or someone else may have been in the apartment having suffered an injury.

[15] I am satisfied that the initial police entry into unit 3321 was lawful pursuant to s. 529.3 of the Criminal Code. The police had a reasonable belief that they needed to enter the apartment to prevent imminent bodily harm or death.

ii) Were the Items Found in Plain View or as the Result of an Exploratory Search?

[16] The plain view doctrine is a seizure doctrine, not a search doctrine and requires an assessment of i) whether the police were lawfully in the apartment; ii) whether the unlawful nature of the item was immediately apparent; iii) whether it was discovered inadvertently; and iv) whether the items were visible without any exploratory search: R. v. Stairs, 2020 ONCA 678, 153 O.R. (3d) 32, at para. 62, appeal dismissed, 2022 SCC 11, 467 D.L.R. (4th) 579.

[17] The defence did not dispute that the suspected drugs and ammunition that were first observed were in plain view. Counsel takes the position, however, that Officer O’Neill’s observations of the firearm on the shelf amounted to an exploratory search.

[18] I accept the evidence of Sergeant MacNab and Officers O’Neill, Barbosa and Lorimer that as they walked through the apartment, they were able to observe in plain view what appeared to be a large amount of drugs and several live rounds of ammunition on the floor. The apartment was quite small and the bags containing the drugs were scattered on the floor and around the couch area.

[19] I also accept the evidence of Officer O’Neill that as he walked through the apartment, he was able to observe the butt end of a firearm on a shelf. The shelf was just above his head but from where he was standing, he was able to see what appeared to be the butt of a gun.

[20] I am satisfied that the suspected drugs, ammunition and firearm were found in plain view, not because of any exploratory search, at a time when the police had lawful justification for being in the apartment.

iii) Were the Police Entitled to Remain in the Apartment?

[21] There are two components to this argument. First, that the police exceeded their authority in remaining in the apartment once it was determined that Ms. Bryan was not there. And second, that the police exceeded their authority in remaining in the apartment after they became aware that Ms. Bryan had been located, pending the granting of the search warrant.

a. Before Ms. Bryan was Located

[22] When police enter a residence due to exigent circumstances, the subsequent police actions will depend on the particular facts of the case. There is no time limitation necessarily associated with the entry and any additional investigation: Godoy, at paras. 21-22. Any warrantless search incident to an exigent entry must be justified by imminent risk of the loss, removal, destruction, or disappearance of evidence, or an imminent safety risk to the police or public: Paterson, at paras. 32-33.

[23] In R. v. Depace, 2014 ONCA 519, 317 C.R.R. (2d) 296, police officers entered a residence following a 911 call. After the occupants were located, officers conducted a visual search of the other areas of the home for officer safety and to confirm no one else needed assistance. Drugs and other paraphernalia were found. The court found that the police were not required to halt their investigation after locating the occupants that were the subject of the 911 call, noting “the extent of what they may need to do will depend on the particular circumstances.”: at para. 8.

[24] When the officers entered the apartment, they quickly determined that Ms. Bryan was not present. It was also clear there had been some kind of violent struggle and that a child was living in the apartment. Sergeant MacNab requested checks on a child associated to the address and subsequently learned that the child was with a grandparent and safe.

[25] Given that the police were lawfully in the apartment due to existent circumstances relating to possible imminent death or bodily harm, I am satisfied that a continued search was necessary given the police did not know the whereabouts of Ms. Bryan or whether she was safe.

[26] Sergeant MacNab ordered the officers to search for any “clues” as to Ms. Bryan’s whereabouts. The officers looked in ‘common areas’ for keys, or paperwork that might assist in finding her. Officer O’Neill opened a drawer in the kitchen and found a provincial offences ticket which had a license plate, vehicle type and officer name on it. Sergeant MacNab advised dispatch of the address associated to the vehicle on the ticket.

[27] Sergeant MacNab also requested another “ping” for an update as to the location of Ms. Bryan’s phone. Ms. Bryan’s phone was in the area of 15 Cooper Street, near Queens Quay. Officers were directed to attend the Queen’s Quay address. Officers were directed to attend the lobby to view any surveillance footage to see if Ms. Bryan was seen leaving the building and if so, whether she was in a vehicle or in the company of others. Sergeant MacNab made several calls to utilize additional resources in what he now believed might be a kidnapping.

[28] This constellation of factors satisfies me that Sergeant MacNab was concerned for the safety of Ms. Bryan, and initially the child, and that any searching of the unit was done for that purpose. It appeared there had been some kind of home invasion and possible kidnapping. While there was obvious evidence of criminality with the finding of the drugs, ammunition and firearm, there was a legitimate concern as to the safety and whereabouts of Ms. Bryan.

b. After Ms. Bryan was Located

[29] The defence argued that the police conducted an unlawful search by remaining in the apartment after Ms. Bryan had been located, pending the search warrant.

[30] Officer Clarke testified that at some point after 1:30am, he learned from Sergeant MacNab that a firearm and drugs had been found in a unit at 19 Western Battery Road. He was aware that Ms. Bryan had been located and arrested. He attended 19 Western Battery Road to ensure that it was secure, pending the search warrant.

[31] Officer Clarke entered the unit and walked through the apartment to check the balcony. He made the decision to have Officers Barbosa and O’Neill remain in the apartment given the potential accessibility of the balcony. He recounted a situation in a different case where someone had accessed a balcony while officers waited in the hallway and removed a firearm. There was no other information provided as to this prior occurrence. This prior incident informed his decision to have Officers Barbosa and O’Neill remain in the apartment.

[32] I am guided by the reasoning of Monahan J., in R. v. McCalla, 2019 ONSC 3256. In that case the police had searched the accused incident to arrest and located a quantity of drugs. The police then used the accused’s keys to enter and secure his premises and waited in the unit pending a search warrant. Much like here, an officer in that case testified to a prior incident where a firearm had been located in a unit with a balcony. The unit was secured by officers waiting in the hallway, and by the time the warrant was executed, the firearm had been removed. Notwithstanding this, Monahan J., found that there was no justification for the officers remaining in the apartment once they had determined that there was no one there who could destroy evidence: at paras. 63-66.

[33] Ms. Bryan had been located and arrested. There was no longer any exigent circumstance justifying the police presence in the unit. Although the apartment was on the third floor, I find that the officers had no lawful basis to remain in the unit after securing the premises and that in so doing, Ms. Bryan’s right to be free of unreasonable search was violated.

[34] Although his direction that the officers remain in the apartment resulted in a violation, I am unable to find this was done in bad faith. Officer Clarke was concerned with the need to preserve the integrity of the apartment, and but for the balcony would have had the officers remain in the hallway. I also accept Officer Clarke’s evidence that he did not conduct any search of the unit, pointing out there was nothing to search for given the drugs and firearm were in plain view.

[35] I also accept that the officers who remained in the unit did not conduct any further search, but rather stood by waiting for the warrant. I am buttressed in this finding given that the explosives material was not located until the execution of the warrant.

iv) Was the Strip Search of Ms. Bryan Unlawful?

[36] Ms. Bryan argued that the police did not have reasonable grounds to perform a strip search of Ms. Bryan, as there were no legitimate safety concerns. I am satisfied in the circumstances of this case that the strip search of Ms. Bryan was lawful, and there was no violation of her s. 8 Charter rights.

[37] Warrantless strip searches are prima facie unreasonable. The onus is on the Crown to prove that the search was reasonable. The Supreme Court of Canada, in R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, emphasized that strip searches are highly intrusive and are often a humiliating, degrading and traumatic experience. Given the level of intrusion, routine strip searches should not be the norm. Police must have reasonable and probable grounds justifying the search for the purpose of discovering weapons, safety reasons, or for discovering evidence related to the reason for the arrest: at paras. 90-99.

[38] Staff Sergeant Heitzner was the officer in charge of the station when Ms. Bryan was brought to the station. He initially ordered a frisk search. Ms. Bryan was intoxicated, upset and argumentative. Ms. Bryan appeared to be sleeping on her feet with her eyes closed. He became aware of the injury on her arm and that she had refused medical attention for it. Ms. Bryan made several utterances that were not responsive to his questions.

[39] During the frisk search Ms. Bryan told the officers that she had broken her glasses, reached into her back pocket, and pulled out the broken arm of her glasses. Ms. Bryan was wearing some kind of wig or hair weave. The officers attempted to check Ms. Bryan’s wig to see if it had pins and if they could be removed. This was difficult because of Ms. Bryan’s arm injury and her being uncooperative. Staff Sergeant Heitzner then authorized a strip search having assessed the situation as it unfolded. I do not accept that he authorized a strip search to “punish” Ms. Bryan for being uncooperative.

[40] Counsel for Ms. Bryan also argued that there was not a proper record of the reasons for the search. I am not persuaded by this submission. Staff Sergeant Heitzner had four pages of notes, and the entire interaction is captured on the booking video, which is also audio recorded.

[41] I am mindful that Ms. Bryan, as a black woman, would have felt uncomfortable removing her wig on camera in front of several officers. This cannot, however, supersede overall safety concerns not only for Ms. Bryan but other persons who would be in contact with Ms. Bryan while at the station. Ms. Bryan was intoxicated, behaving irrationally and was uncooperative. She refused to allow the officer to search her wig. A loaded gun and narcotics were found in her residence. Police were concerned she may have drugs on her person and about the possibility that her broken glasses could be used as a weapon. Given this constellation of factors, in my view the strip search was reasonable and not a violation of Ms. Bryan’s s. 8 Charter rights.

C SECTION 9

Was Ms. Bryan Arbitrarily Detained?

[42] The defence argues that Ms. Bryan was arbitrarily detained when the police had her sit in the back of the police cruiser shortly after 1:00 am. The Crown acknowledges that Ms. Bryan was detained, but not arbitrarily because it was for the purpose of providing her with medical attention and determining what had happened. To be clear there is no legally recognized detention for medical purposes.

[43] Section 9 of the Charter guarantees that “everyone has the right not to be arbitrarily detained or imprisoned.” The purpose of this section is to safeguard against unjustified state intrusion not only on physical liberty but mental liberty by prohibiting “the coercive pressures of detention and imprisonment from being applied to people without adequate justification.: R. v. Grant, 2009 SCC 32 at para 20.

[44] The Supreme Court of Canada allows for an investigative detention power to be lawful if there are reasonable grounds to suspect that the individual is connected to a particular crime and that such detention is necessary. The “reasonable grounds to suspect” standard requires that the officer subjectively believe there is reasonable suspicion that a person is connected to a particular offence or criminal activity, and that the reasonable suspicion be grounded in objectively discernible facts. A mere hunch, or sincere subjective believe alone, is not sufficient: Mann, at paras. 35, 43 and 45.

[45] Officers arrived at the 39 Queens Quay scene at approximately 1:00 am and located Ms. Bryan. The scene was chaotic. At 1:07 am officers noted that Ms. Bryan had an injury on her arm and had her sit in the back of a scout car for the purpose of tending to her injury. I accept at this point that the officers were concerned about the injury to Ms. Bryan’s arm. Any questions of Ms. Bryan at this point were entirely related to her health and the injury.

[46] I am satisfied that at this initial point she was not detained. I accept that the officers had no information as to what had taken place at Western Battery Road, and that they were concerned with her well-being, evidenced by the immediate tending to her injury. I am also satisfied that they were confused as to what had taken place at 39 Queens Quay, believed she was a victim, and were trying to determine what had happened.

[47] At 1:11 am while on the phone with Sergeant MacNab, Officer MacNeil begins asking Ms. Bryan questions about what had happened. At 1:12 am, he asked “what happened back in Liberty Village area?”. Two minutes later he twice asked, “who lives at Western Battery Road?”. Officer MacNeil then reported the information back to Sergeant MacNab.

[48] Ms. Bryan then attempted to leave the car. The officers repeatedly told her to get back in the car and sit down. Once Ms. Bryan was back in the car at 1:17 am, the officers closed the scout car door. In my view, Ms. Bryan was detained at the point Officer MacNeil began asking Ms. Bryan questions about what had happened and where she lived. In addition to the police physically preventing Ms. Bryan from leaving the scout car, I am satisfied that as the situation unfolded Ms. Bryan would not have felt she was free to walk away or could decline to answer questions.: R. v. Grant, 2009 SCC 32 at paras 31-44.

[49] I am not satisfied, however, that the detention was arbitrary. Sergeant MacNab was aware that drugs, ammunition and a firearm had been located at 19 Western Battery Road. He had received information that Ms. Bryan was the tenant of the unit, and through Officer MacNeil was investigating Ms. Bryan’s connection to the unit. There had also been some kind of altercation at 39 Queens Quay. The officers were investigating what had occurred at both 19 Western Battery Road and 39 Queens Quay.

D SECTION 10

[50] The Crown concedes that Ms. Bryan was detained and that her s. 10(a) and (b) Charter rights were violated. They argue this violation only occurred, however, when the police did not provide her rights to counsel at the point when they had formed their grounds for her arrest. They are only seeking to rely on her utterances post-arrest, both at the scene and during her booking at 14 Division.

[51] Everyone has the right under arrest or detention to be informed promptly of the reasons thereof. At a minimum, individuals who are detained must immediately be advised in clear and simple language of the reasons for detention. Once detained, an individual is at the mercy of state actors. Section 10(a) informs an individual of the extent of their jeopardy such that they can exercise the right of counsel conferred by s. 10(b) in a meaningful way: R. v. Nguyen, 2008 ONCA 49, 166 C.R.R. (2d) 207, at para. 20.

[52] Section 10(b) of the Charter obliges the police to advise a detained person of the right to speak with counsel without delay, and if the detained person exercises that right, the police must immediately provide the detainee with a reasonable opportunity to speak to counsel: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 38. It is well established that 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 the detention: R. v. Noel, 2019 ONCA 860, at para. 23; R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 34.

[53] The law is also clear that s. 10(b) of the Charter obliges police to hold off from attempting to elicit incriminatory information from a detainee until he or she has had a reasonable opportunity to consult counsel or has unequivocally waived the right to do so: Suberu, at para. 38; R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, at p. 269.

[54] In my view the detention and ss. 10(a) and (b) Charter violations began the moment the officers started asking Ms. Bryan questions about her address and what happened. At that point the police violated Ms. Bryan’s s.10 Charter rights by not informing her of the reason for her detention or her rights to counsel.

[55] This continued when Officer Brown then began questioning Ms. Bryan. Ms. Bryan said she wanted to leave and instead of letting her do so, Officer Brown shut the scout car door and walked away. He did not have an explanation or justification for this, claiming that this was not his issue as he had not put her in the car in the first place. Officer Brown testified that he did not advise Ms. Bryan that she was under investigative detention because in his mind she was not being investigated. I do not accept this evidence. Officer Brown was in contact with Sergeant MacNab, in addition to being aware that she had “destroyed” a unit at 39 Queens Quay.

[56] Officer Brown testified that sometime between 1:19 am and 1:38 am, he spoke with Sergeant MacNab and was told that drugs and a firearm had been found at 19 Western Battery Road. This would have been a significant piece of information. None of the officers had a notation as to when that information was received.

[57] Sergeant MacNab asked Officer Brown to confirm with Ms. Bryan that she lived at 19 Western Battery Road alone. Sergeant MacNab testified he was trying to determine if there was another victim given what appeared to have been a violent struggle, and blood on the door at Western Battery Road. This may have been so, but the police were still obligated to advise Ms. Bryan of her rights to counsel immediately upon detention.

[58] Ms. Bryan started to walk away. The officers stopped her and told her to “stay where you are”. At 1:37 am, Officer Brown asked her, “who lives at Western Battery Road?”. Ms. Bryan responded that she did. He then asked, “you live there alone?”. When she responded, “yes”, she was immediately arrested for the drugs and firearm. This was an obvious attempt to elicit evidence from Ms. Bryan, and her answer was then used as the basis for her arrest.

[59] I am satisfied that Ms. Bryan was detained and not advised of that fact or her right to counsel for approximately 30 minutes. Ms. Bryan on more than one occasion indicated she wished to leave but was not permitted to do so. Officers used concern for her injury as a way of keeping her on scene, all while not advising her of her rights. Ms. Bryan was physically restrained on several occasions. While there seemed to have been confusion on the scene as to whether Ms. Bryan could leave or not, the reality is that she was not permitted to leave. She was detained.

[60] The drugs and firearm had been found shortly after midnight. Sergeant MacNab was in communication with both Officers MacNeil and Brown, as early as 1:13 am. At minimum Officer Cole had been told that Ms. Bryan was arrestable for the drugs and a firearm, at some point prior to her actual arrest at 1:37 am. Knowing perfectly well that she was being investigated and then arrestable, Officers Brown, MacNeil and Cole chose not to advise her that she was under investigative detention, nor provide her with any of her Charter rights. The officers either did not understand or chose not to comply with their obligations to inform Ms. Bryan of her detention and provide rights to counsel.

[61] It is also a concern that Officer Cole periodically muted the audio on his BWC. It appears this was done specifically when the officers were discussing Ms. Bryan’s potential arrest and the grounds for that arrest. This adds to the overall concerning nature of the police conduct.

[62] The overall attitude toward Ms. Bryan’s Charter rights is best characterized as indifferent and careless. I accept that the scene was initially chaotic, and that some of the officers were legitimately confused and not aware of what had been located at 19 Western Battery Road. But several other officers were not confused, and none of this justifies the persistent lack of compliance with well-established Charter obligations.

[63] I am satisfied that there was a further violation of Ms. Bryan’s s. 10(a) rights when she was not informed of the additional charges relating to the explosives found during the search warrant’s execution. Ms. Bryan was not told of these charges for several hours after they had been located, and there was no evidence before me that Ms. Bryan was ever put in touch with counsel as a result.

[64] For the foregoing reasons, I am satisfied that there was a serious violation of Ms. Bryan’s ss.10(a) and 10(b) Charter rights.

E SECTION 24(2) ANALYSIS

[65] Section 24(2) of the Charter requires the court to exclude evidence obtained in a manner that infringes the Charter if the admission of the evidence would bring the administration of justice into disrepute. The onus is on the accused to establish a case for exclusion.

[66] The Supreme Court stressed in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (Grant (2009)), at para. 68, that the focus of s. 24(2) is the long-term repute of the justice system. It further cautioned in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, that “[t]o appear to condone willful and flagrant Charter breaches that constitute a significant incursion on [Charter] rights does not enhance the long-term repute of the administration of justice; on the contrary, it undermines it”: at para. 39.

[67] The criteria for excluding the tainted fruits of unconstitutional conduct under s. 24(2) of the Charter are based on the following:

• The seriousness of the Charter-infringing state conduct;
• The impact of the breach on the Charter-protected interests of the accused; and
• Society’s interest in the adjudication of a case on its merits.

i) Obtained in a Manner

[68] Section 24(2) of the Charter is “triggered” where evidence is “obtained in a manner” that violates an accused’s Charter rights. The Supreme Court, in R. v. Tim, 2022 SCC 12, 467 D.L.R. (4th) 389, at para. 78, outlines the principles that have developed, including that courts should take a “purposive and generous approach” in determining whether evidence was “obtained in a manner” that violates an accused’s rights. The “entire chain of events” should be examined. The connection between the breach and the impugned evidence can be “temporal, contextual, causal or a combination of the three”. A remote or tenuous connection between the Charter breach and the impugned evidence will not suffice to trigger s. 24(2): see also R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3; R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235; R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561; and R. v. Davis, 2023 ONCA 227, 166 O.R. (3d) 401.

[69] In my view, to conduct a properly considered s. 24(2) analysis, it is best to assess the evidence in two different categories. I say this because other than it being the same general investigation, there is a limited connection between what took place at 39 Queens Quay West and the ultimate seizing of items from Western Battery Road pursuant to the search warrant.

[70] Police observed items in plain view at 19 Western Battery Road an hour before Ms. Bryan was located. The violations of Ms. Bryan’s 10(a) and (b) rights did not occur until after the police were already in the process of securing the unit for the purpose of seeking the search warrant. In addition, none of Ms. Bryan’s utterances were relied on by the police in the Information to Obtain (ITO) for the warrant.

[71] The two categories of evidence are as follows:

• Category 1: Evidence obtained at the scene at 39 Queens Quay East during the arrest, and then at 14 Division during the booking of Ms. Bryan. Specifically, the utterances by Ms. Bryan including “that stuff at my house is not mine”, that the stuff at her house belongs to “Adam fucking Henry”, “the police should be speaking to Adam Henry”, and that “she was arrested for something her ex-boyfriend put in her house.”
• Category 2: Evidence seized from 19 Western Battery Road Unit 3321 pursuant to the search warrant. This includes the drugs, drug paraphernalia, the firearm and ammunition, explosives, documentation and identification in the name of Talicia Bryan.

[72] Using a purposive and generous approach I am satisfied that the temporal and contextual connections although weak are not remote or tenuous, and that both categories of evidence meet the “obtained in a manner” threshold. The events at 19 Western Battery Road led to the police attending at 39 Queens Quay and speaking with Ms. Bryan. This occurred an hour after the drugs and firearms had been located. The investigation of Ms. Bryan at Queens Quay was related to what had been discovered at 19 Western Battery Road.

[73] With respect to the Category 1 evidence of the utterances, the Crown argued that while there was not a “fresh start”, there was a “break” in the police conduct, when the police provided Ms. Bryan with her rights to counsel and caution: R. v. Beaver, 2022 SCC 54, 475 D.L.R. (4th) 575.

[74] Given the lifeline importance of the s. 10 rights, subsequent compliance may not dispel the effect of the breach. Consideration must be given to whether the evidence remains tainted after the fresh start. I am guided by the pronouncements in Davis that the fresh start doctrine should only be applied to breaches of the immediacy requirements of the informational component in the clearest of cases: at para. 44.

[75] In the circumstances of this case, I am not satisfied that the reading of the rights to counsel and caution, dispelled the effect of the breaches. Ms. Bryan’s utterances were made while she was being arrested and cautioned. The utterances a short time later are a direct continuation of the utterances at the scene prior to and during her arrest.

[76] With respect to the Category 2 evidence, there is a temporal and contextual connection in that the items were found in the same sequence of events as the conduct which forms the breaches. The officers were in the Unit for exigent circumstances and having found illicit items, remained in the unit in violation of Ms. Bryan’s s. 8 rights. This entire sequence of events led to the police seeking and obtaining a search warrant: see Pino.

[77] I appreciate that cumulative breaches can taint an entire search process, thus requiring consideration of all breaches under s. 24(2): R. v. Boutros, 2018 ONCA 375, at para. 20; R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, at p. 254. In my view, although the causal and temporal connection between the s. 10 violations and the evidence seized at 19 Western Battery Road is very weak, it does not mean that the breaches are irrelevant to the admissibility of any evidence found to have been obtained in a manner that violated a Charter right. If s. 24(2) is engaged, the conduct of the police throughout their investigation including the s. 10 violations, are germane to the admissibility inquiry required under s. 24(2): Harrison, at para. 26; Boutros, at para. 26.

[78] I must then determine for both categories of evidence, whether admitting the evidence would bring the administration of justice into disrepute by considering the three lines of inquiry described in Grant.

ii) Grant Factors

a. Seriousness of the Charter-infringing conduct

[79] The seriousness of the state’s infringing conduct deals with (a) whether the conduct was willful or inadvertent and (b) the need for the court to dissociate itself from the conduct. The concern at this point is not to “punish the police” but rather to “preserve public confidence in the rule of law and its processes”: Grant (2009), at para. 73.

[80] Minor violations occurring in good faith may minimally undermine public confidence if the evidence is admitted. On the other side of the spectrum, willful or reckless disregard for Charter rights may risk bringing the administration of justice into disrepute if the evidence is admitted. An officer may be found to be acting in good faith, even if she is manifestly mistaken in her understanding of the law. A conclusion of good faith must consider all the circumstances surrounding the police conduct: Beaver, at para. 120; R. v. Zacharias, 2023 SCC 30, at para. 51.

[81] And importantly, although the breaches are being addressed separately, in assessing the seriousness of the Charter infringing conduct, they are being considered cumulatively. “In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern tends to support exclusion”: Grant (2009), at para. 75.

[82] The breaches of Ms. Bryan’s 10(a) and (b) rights leading to her arrest were serious. In their dealings with Ms. Bryan the officers conducted themselves with persistent carelessness and disregard for her Charter rights. These were not inexperienced officers, but officers who should have known better. I find that this emphasizes the seriousness of the breaches: Tim, at para. 84.

[83] Ms. Bryan was detained at approximately 1:11 am by Officer MacNeil and not advised of her rights to counsel. Officers questioned Ms. Bryan without ever turning their minds to providing her with her rights to counsel. Ms. Bryan’s arrest was based in part on the statements by Ms. Bryan, that were in serious violations of her ss. 10(a) and (b) rights.

[84] Our courts have consistently treated breaches of the informational component of s. 10(b) as being serious given how simple and straightforward it is: R. v. Thompson, 2020 ONCA 264, at paras. 90 and 95; Davis, at para. 5. I am unable to find that the officers acted in good faith in this case. The failure to advise Ms. Bryan of her detention and then hold-off on questioning her was intentional and manipulative. The fact that Ms. Bryan was eventually informed of her rights to counsel does not mitigate the seriousness of the initial breach: R. v. Griffith, 2021 ONCA 302, 71 C.R. (7th) 239, at para. 71.

[85] On the other hand, the breaches of Ms. Bryan’s s. 8 rights were minor and more technical in nature. I accept that the officers who entered Ms. Bryan’s apartment were concerned for her safety, having no idea what they would find in the apartment.

[86] While the officers remaining in the unit was a violation, again I do not find this was done in bad faith. I accept that Officer Clarke was concerned about the apartment being accessed via the balcony, and that he had some basis for this belief given his prior experience. I am satisfied, however, that the officers otherwise conducted themselves appropriately with regard to Ms. Bryan’s Charter rights. There is no evidence that the apartment was further searched, and a judicial authorization was sought and granted: R. v. Brown, 2022 ONSC 7202, at para. 102.

[87] Finally, the chaotic and dynamic nature of what was confronting the police has some mitigating effect. This is not like the ss. 10(a) and (b) violations where the extenuating circumstances that existed did not relieve the officers from properly fulfilling their obligations under the Charter. A very serious offence, potentially a kidnapping, had just happened, and at the same time the police were faced with protecting serious, reliable evidence. Ms. Bryan’s privacy interests were violated. While the violation was not committed in good faith as the exigent circumstances doctrine to conduct a warrantless search is well-established law, the breach was not further aggravated by being in bad faith.

[88] I must consider both breaches. I am not satisfied that the breaches demonstrate a pattern of misconduct that would make the breach even more serious: Zacharias, at para. 49.

[89] The violations of Mr. Bryan’s ss. 10(a) and (b) rights was serious. The violations of Ms. Bryan’s s. 8 rights on the other hand were minor and more technical. Overall, this factor weighs in favour of exclusion, particularly given the conduct of the officers in their dealings with Ms. Bryan.

b. Impact of the Charter Violation on the Protected Interests of the Accused

[90] The second branch of the test is outlined in Grant (2009), at para. 76. This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. Trial judges must assess the extent to which the interest was infringed. This may range from fleeting and technical to profoundly intrusive.

[91] The purpose of ss. 10(a) and (b) of the Charter is to assist detainees to regain their liberty and guard against the risk of involuntary self-incrimination: Suberu, at para. 40. There is also a psychological component as the right is a “lifeline for detained persons” in terms of delivering legal advice and guidance: Rover, at para. 45.

[92] In this case there is a clear causal connection between the ss. 10(a) and (b) breaches and the discovery of evidence: R. v. Keshavarz, 2022 ONCA 312, at paras. 112-16. Ms. Bryan was not advised of her right to counsel while on scene. She was also not initially cautioned. The officers proceeded to speak with her and elicited evidence. This evidence was then used to justify her arrest, leading to Ms. Bryan’s further utterances.

[93] The s. 8 violation, however had little impact on Ms. Bryan’s s. 10 interests. Although Sergeant MacNab was directing the questions to be asked of Ms. Bryan, the drugs and firearm had already been discovered in plain view following a lawful exigent entry into the Unit.

[94] With respect to the s. 8 violation, there is no greater expectation of privacy than in the home. Ms. Bryan had a reasonable expectation of privacy in the apartment, and that privacy was compromised when the police remained in the unit pending the search warrant. I agree that although the officers did not conduct a further search, remaining in the apartment allowed them the ability to view Ms. Bryan’s personal effects, amounting to a potentially significant intrusion on her privacy. This is tempered in that the officers did not conduct any further search of the apartment.

[95] The violations of Ms. Bryan’s ss. 10(a) and (b) rights had little to no impact on Ms. Bryan’s s. 8 interests given they occurred after the items had been found in plain view and had nothing to do with the decision to remain in the apartment.

[96] The discoverability of the evidence is also a factor I must consider. In this case the search warrant would have issued regardless of the s. 8 or s. 10 breaches. The items were discovered in plain view prior to the police remaining in the apartment. The officers would have remained in the unit irrespective of the utterances, and they were not referred to in the ITO for the search warrant in any event. With respect to both categories of evidence, this lessens the impact on Ms. Bryan’s Charter-protected interests underlying right to counsel and the guarantee against unreasonable search and seizure.

[97] In my view, overall, this line of inquiry supports exclusion; more strongly for the evidence in Category 1, considerably less so for Category 2.

c. Society’s Interest in Adjudicating a Case on its Merits

[98] In considering this factor, the question to be asked is “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion”: Grant (2009), at para. 79. The reliability of the evidence is an important factor in this line of inquiry: Grant (2009), at para. 81. The court considers factors such as the reliability of the evidence, the importance of the evidence to the Crown's case, and the seriousness of the alleged offence: Zacharias, at para. 58; R. v. McColman, 2023 SCC 8, at para. 70.

[99] With respect to the utterances, I am of the view that this factor favours exclusion. The utterances have questionable reliability, having been made when Ms. Bryan was extremely emotional. In addition, the case for the Crown will not be “gutted” if the evidence is excluded. In the circumstances of this case, society’s interest in adjudicating the case on its merits would be better served by exclusion of the utterances.

[100] This factor, however, weighs strongly in favour of the admission of the real evidence from Western Battery Road. The evidence is clearly reliable and excluding this evidence would mean the end of the Crown’s case with respect to a large quantity of serious drugs, a loaded firearm, ammunition and explosives. The seriousness of the offences underscores the heightened public interest in having the case tried on its merits. While the seriousness of the offence cuts both ways when assessing this factor, there is no question that there is a strong interest in the adjudication of these offences on the merits.

d. Final Balancing

[101] The final steps in the s. 24(2) analysis involves balancing the factors under the three lines of inquiry. The balancing is a qualitative one, not capable of mathematical precision: Harrison, at para. 36. The cumulative weight of the first two lines of inquiry must be balanced against the third line of inquiry: R. v. Lafrance, 2022 SCC 32, 472 D.L.R. (4th) 1, at para. 90; Beaver, at para. 134.

[102] Where the first and second inquiries, taken together, make a strong case for exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility: R. v. Le, 2019 SCC 34, 434 D.L.R. (4th) 631, at para. 142, citing Paterson, at para. 56. Conversely, if the first two inquiries together reveal weaker support for exclusion of the evidence, the third inquiry will most often confirm that the administration of justice would not be brought into disrepute by admitting the evidence: Le, at para. 142; McColman, at para. 74.

[103] An application under s. 24(2) of the Charter does not necessitate the exclusion of all evidence tendered against an accused. The admission of some evidence may bring the administration of justice into disrepute, while other evidence will not notwithstanding having been generated through the same investigation. Different factors must be considered, including discoverability, absence of a causal link, or the kinds of evidence sought to be excluded: R. v. O’Brien, 2023 ONCA 197, 166 O.R. (3d) 114, at para. 31.

[104] The breaches of Ms. Bryan’s ss. 10(a) and (b) rights were serious, concerning, and favour exclusion. The law around s. 10 and the obligations it imposes is clear and well established: “It is not difficult for the police to understand their obligations and carry them out”: Noel, at para. 34. The impact on Ms. Bryan was significant, and the utterances have questionable reliability in the circumstances. The utterances will be excluded.

[105] When looking at the police conduct at 19 Western Battery Road, I am satisfied that exclusion of the real evidence would bring the administration of justice into disrepute. Officers were concerned with Ms. Bryan’s safety and did their best to balance that with respecting her Charter rights. A search warrant was obtained for the apartment and “applying for and obtaining a search warrant from an independent judicial officer is the antithesis of willful disregard of Charter rights” and tells in favour of admitting the evidence: R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d), at para. 28; R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at para. 127.

[106] While the police remaining in the unit constitutes a breach of Ms. Bryan’s s. 8 rights, the breach was minor and technical as they did nothing more than freeze the property. In my view this does not require exclusion of the evidence.: R. v. Brown 2022 ONSC 7202 at para 108.

[107] There is no doubt a “heightened interest” in seeing a determination on the merits where the offence charged is serious as it is here: Harrison, at para. 34, Zacharias; and Keshavarz. Exclusion of the drugs, firearm and ammunition, explosives and other items found in Western Battery Road, in these circumstances would bring the administration of justice into disrepute.

[108] In conclusion, the balancing exercise pulls strongly in favour of exclusion of the Category 1 evidence, the utterances. For Category 2, the cumulative pull of the first two factors does not outweigh the strong third factor and overall, in the circumstances of this case, favours admission.

F VOLUNTARINESS

[109] Given my finding that the utterances are to be excluded, I need not determine the issue of whether the utterances were voluntary.

G DISPOSITION

[110] Ms. Bryan’s utterances post arrest both at the scene and at 14 Division are excluded. The evidence seized pursuant to the search warrant executed at 19 Western Battery Road is admitted.

J.K. Penman J.

Released: November 4, 2024

COURT FILE NOS.: CR-22-10000294, CR-22-90000286, CR-23-1000213
DATE: 20241104

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

TALICIA BRYAN

REASONS FOR JUDGMENT

J.K. Penman J.

Released: November 4, 2024

[^1]: This matter began as a Charter motion with the defence alleging several Charter violations. Defence counsel then advised of their wish to re-elect to proceed by way of judge alone. Counsel agreed that the matter would proceed by way of a blended hearing before me. On further reflection, it was agreed that the matter would proceed as a Charter motion, with some evidence on the motion to apply to the trial proper, proceeding before me in January 2025.