COURT FILE NO.: CR-24-129 DATE.: 2024 11 21
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING M. Bedini, for the Crown
- and -
John CULMER A. Abbey, for the Applicant
HEARD: September 12, 2024
CHARTER APPLICATION
MIRZA J.
INTRODUCTION
[1] The Applicant, John Culmer, is charged with Arshdeep Grewal with the following offences in relation to a drug exportation investigation:
I. On the 1st day of August in the year 2022, while not being authorized to do so, unlawfully attempted to export Cannabis, contrary to Section 11(1) of the Cannabis Act, S.C. 2018, c. 16, and did thereby commit an indictable offence contrary to Section 11(3)(a) of the Cannabis Act.
II. On the 1st day of August in the year 2022, while not being authorized to do so, unlawfully possessed Cannabis for the purpose of export, contrary to Section 11(2) of the Cannabis Act, S.C. 2018, c. 16, and did thereby commit an indictable offence contrary to Section 11(3)(a) of the Cannabis Act.
III. On the 1st day of August in the year 2022, possess in a public place, more than 30 grams of dried Cannabis, contrary to Section 8(1)(a) of the Cannabis Act, S.C. 2018, c. 16, and did thereby commit an indictable offence contrary to Section 8(2)(a) of the Cannabis Act.
[2] The Applicant was arrested at the Air Canada Cargo facility in Mississauga on August 1, 2022, based on a Canada Border Services Investigation into boxes to be exported to Nassau, Bahamas.
[3] The Applicant asserts that his rights under ss. 7, 8, 9 and 10 Canadian Charter of Rights and Freedoms have been violated, warranting exclusion of items derived from a search and seizure incident to arrest. The items include his name, backpack containing a passport, and his cell phone.
[4] The Applicant alleges that he was subject to an unlawful arrest, unlawful search incident to arrest, and overholding in police cells.
[5] The Applicant’s motion was heard on September 11 and 12, 2024. The jury trial is scheduled to start on October 1, 2024.
[6] Due to the short interim period between the motion and trial date, I provided a bottom line ruling, on September 27, 2024, with reasons to follow. These reasons explain my findings and conclusions.
[7] The Charter motion is granted in part and dismissed in part.
[8] The Applicant’s ss. 8 and 9 Charter rights were not breached in relation to his arrest and search incident to arrest by border services officers. The arrest and search incident to arrest of the Applicant were lawful. The items seized as a result of the search incident to arrest such as the Applicant’s name, backpack, passport, and cellphone were lawfully obtained. The cellphone extraction evidence obtained pursuant to a subsequent search warrant is admissible subject to any requests for vetting brought by counsel to the trial judge.
[9] Border services officers (“BSO”) McLaren and Dutta (initially) breached the Applicant’s s. 10 Charter rights and failed to give him a caution contrary to s. 7 of the Charter. The Applicant was subsequently given proper rights to counsel and a caution. However, the evidence elicited from the Applicant from questioning by BSO McLaren is excluded pursuant to s. 24(2) of the Charter.
[10] Border services officers did not violate the Applicant’s s. 10 Charter right to counsel of choice.
[11] The RCMP did not violate the Applicant’s s. 9 Charter right not to be arbitrarily detained by holding him after a lawful arrest for a bail hearing. The Applicant was not overheld.
FACTUAL CONTEXT
[12] The Crown and Defence dealt efficiently with the motion by filing two Agreed Statement of Facts (ASF).
[13] The first ASF identifies the items extracted from the cell phone relevant to the prosecution. A USB containing the digitally extracted materials from the phone was also filed.
[14] The second ASF provides an agreement by the parties about most of the factual context.
[15] However, there are facts that are in dispute at key parts of the investigation that I will address below.
[16] I will start by reproducing the helpful ASFs. I will summarize the circumstances of the arrest and rights to counsel. Then I will summarize the evidence extracted from the cell phone.
Agreed Statement of Facts for the Arrest
[17] On August 1, 2022, at 22:50, Canadian Border Services Agency (CBSA), BSO McLaren, a superintendent, and BSO Sandhu an officer in training, attended the Air Canada warehouse located at 2580 Britannia Road East in the City of Mississauga. Their purpose was to conduct proactive examinations looking for contraband on two flights: AC1816 NAS and AC1818 BDA. One flight was destined for Nassau, Bahamas, the other destined for Bermuda.
[18] BSO McLaren observed two males in the parking lot unloading “Home Depot” branded boxes from a sedan with British Columbia plates.
[19] BSO McLaren and Sandhu proceeded into the Air Canada Cargo warehouse. They did not engage with or continue to watch the men or car outside.
[20] A few minutes later, BSO McLaren saw an Air Canada staff member who was measuring three “Home Depot” branded boxes for shipment. BSO McLaren was told by the employee that the shipment was international and destined for Nassau, Bahamas on flight AC 1816 NAS. BSO McLaren asked the Air Canada employee to place the boxes through the X-ray machine. BSO McLaren noticed organic masses which looked like bricks of cannabis inside.
[21] BSO McLaren opened one of the boxes and observed a large Bluetooth speaker inside. The organic mass was not visible to the naked eye. BSO McLaren and BSO Sandhu offloaded the boxes from the X-ray machine and instructed Air Canada staff not to touch the three “Home Depot” branded boxes. At this point, BSO McLaren radioed for assistance with the investigation.
[22] BSO McLaren and BSO Sandhu returned to the Air Canada Cargo counter where one of the males who brought in the “Home Depot” boxes for shipment was still waiting in the public area. At 23:06 BSO McLaren and BSO Sandhu arrested the male for smuggling contrary to s. 159 of the Customs Act, R.S.C. 1985, c. 1. This male was later identified as the co-accused, Arshdeep Grewal.
[23] At 23:07, BSO McLaren exited the cargo facility in search of the second male, observed earlier in the parking lot and in the cargo centre. BSO McLaren arrested the male who was identified as the Applicant, John Culmer. BSO McLaren asked Culmer questions about the vehicle, seized his car keys and a cellphone, and searched his backpack to locate identification.
[24] Shortly after, BSO Dutta arrived on scene to assist with the arrest. At this point, BSO McLaren had arrested Culmer.
[25] At 23:08, BSO Dutta took custody of Culmer. At 23:10, BSO Dutta provided Culmer with a verbal caution and cursory rights to counsel. These were not read verbatim from his Officer Reference Handbook.
[26] At 23:17, BSO Dutta read Culmer his rights to counsel and caution, verbatim from his handbook.
[27] At 00:13 on August 2, 2022, BSO Kim read a secondary caution to Culmer.
[28] At 00:20, BSO Kim called duty counsel and left a message because all available counsel were occupied.
[29] At 01:59, RCMP Officer Stickling arrived at the terminal to take over the investigation. At 02:37 Officer Stickling was advised that duty counsel had not called back.
[30] At 2:55, a call to duty counsel was placed again. Culmer spoke to duty counsel at this time.
[31] At 04:44, Immigration Enforcement Officers interviewed Culmer because he had no status in Canada.
[32] At 05:07, a call to duty counsel was placed and Culmer spoke to them again.
[33] At 05:20, Immigration Enforcement Officers issued an Order of Detention to Culmer, placing him on an immigration hold.
[34] Grewal was released on a promise to appear. He was not on an immigration hold.
[35] Culmer was placed on an immigration hold and held for a bail hearing.
[36] The Crown’s position was a release with surety when Culmer appeared before a Justice of the Peace.
[37] Culmer appeared in bail court on August 2, 2022. He was assisted by duty counsel. Culmer was provided a number from his telephone that was in police custody with officer assistance after his appearance in bail court on this day.
[38] Culmer appeared in 204 court on August 5, 2022. His Defence counsel was retained and adjourned the matter into bail court on August 8, 2022.
[39] On August 8, 2022, Culmer was released on consent by the Crown with a surety.
Agreed Statement of Facts Regarding the Cellphone Extraction
[40] The following facts were agreed to in relation to the cellphone extraction.
- A Cellphone was seized when Culmer was arrested on August 1, 2022.
- A valid search warrant was sought to search the phone. The search warrant was granted on October 13, 2022.
- Evidence was on the phone that the Crown seeks to tender at trial.
[41] A summary of the evidence that the Crown seeks to tender is as follows:
a. Pictures and videos of what appears to be weed in bags; b. Conversations with different numbers that are drug related. Specifically about the purchase and sale of weed; c. Screenshots of money transfers for Bahamian dollars sent to Culmer on multiple occasions; d. Picture of an electronic shipping receipt; e. Picture of what appears to be a box that contains a Bluetooth speaker; f. Picture of what appears to be weed in a vacuum sealed bag; g. Video sent by Culmer showing speakers with vacuum sealed cannabis inside. The video is narrated about how the boxes will be packed for shipment; and h. Account information in the name of RogerLunderwood@gmail.com. This is the same name that appears on the waybill for the intercepted shipment from August 1, 2022.
Disputed Circumstances
[42] I will address further disputed areas in my review of additional facts and analysis.
[43] For now, and in summary, the parties contest whether BSO McLaren saw Culmer at the cargo counter inside the Air Canada Cargo facility, prior to BSO McLaren directing that the boxes be inspected as per para. 3 of the ASF regarding the arrest.
[44] They also contest the circumstances surrounding the arrest, rights to counsel, and caution. That said, as noted above, it is not disputed that after some delay BSO Dutta gave the Applicant a caution and full rights to counsel.
[45] During submissions the Crown conceded that BSO McLaren (briefly) breached the Applicant’s ss. 7 and 10 Charter rights by questioning him without providing him with a caution and full rights to counsel. The Crown did not seek to admit the Applicant’s responses or evidence adduced from those breaches.
EVIDENCE
[46] In this section, I will attempt to focus on the additional evidence that is not covered by the ASFs.
BSO McLaren
[47] BSO McLaren testified that he has been a Border Services officer for 16 years. He has worked various roles including drug investigations where different drugs were seized. Since August 1, 2022, he has been the Superintendent at the commercial operations office, in charge of 16 officers.
[48] For this case, he made notes and wrote a typed narrative, which he relied on to refresh his memory.
[49] In cross-examination, he said that he made his notes from his memory, after he returned to the station the night of the arrest.
[50] He stated that the Air Canada facility is a customs bonded warehouse where goods are brought in by companies and people. The items to be shipped can report to the CBSA.
[51] On August 1, 2022, BSO McLaren stated that he and BSO Sandhu parked in front of the main public entrance at 22:50. Officer Sandhu was his trainee that day for examining items for exportation and smuggling enforcement.
[52] BSO McLaren observed two men unloading boxes from a sedan and placing them on the ground behind the trunk. Later, he identified them as the two co-accused.
[53] In cross-examination, he said that he saw the Applicant’s hands on the boxes. There were three boxes. But he did not see all of them taken out from the trunk. Two people, including the Applicant, were standing beside them. He denied he was filling in gaps or justifying it after the fact, by stating there were three boxes. He said he saw the two men stacking the boxes. The other man was the co-accused.
[54] He agreed that the time entry of 22:50 as the first time seeing the Applicant was his best estimate. He believed he was back at the station at 23:30, some 40 minutes after.
[55] In the parking lot when he saw the Applicant, they exchanged a glance. He said that the Applicant looked away abruptly, which seemed awkward, possibly suspicious.
[56] In cross-examination, he said that he believes he told BSO Sandhu that if those boxes came into the cargo centre, they would search them.
[57] However, he acknowledged that seeing two males, one white, one south Asian, in the parking lot with boxes at a cargo drop off was not reasonably suspicious. Also, he made no notes of any discussion with BSO Sandhu of the boxes (or individuals) acting suspicious. He did not make notes about saying to BSO Sandhu that in his experience boxes had been used before for smuggling or that they will examine them.
[58] He testified in examination in chief, that the observations were made at night but the visibility was clear. He was not sure if the street lights were on but there was ambient light. His view was not obstructed.
[59] He testified that he saw that the Applicant was tall and light skinned. He was with another person, who was possibly South Asian. He did not recall their clothing but said that he thought the Applicant was wearing a safety vest.
[60] BSO McLaren stated that when he entered the warehouse the two men were still in the parking lot.
[61] BSO McLaren went to the export staging area and told BSO Sandhu to look for cargo on the flights they were targeting for inspection.
[62] He saw that the same people in the parking lot had brought the Home Depot boxes to the check in counter. He agreed that he did not see them enter the centre.
[63] In cross-examination, it was suggested to him that he did not see the Applicant inside the cargo centre and that he was filling in the blanks when he later wrote his narrative. There was nothing in his notes about his specific position or that there were two people at the counter trying to submit boxes.
[64] BSO McLaren disagreed with the suggestions. He responded that he did not put it in his notes, but he did explain this circumstance in his typed narrative report. He said the narrative was a clearer explanation of the situation. Still, he agreed that grounds for the arrest should be stated in both his notes and narrative.
[65] To reflect that it was in his report, he read in the part of the narrative that stated “while in the central part of the warehouse looking for cargo, I saw two men approach the customer service counter and they had presented three Home Depot brand moving boxes as a shipment. I recognized these two men from the parking lot earlier as they had been unloading the boxes from a dark coloured compact sedan in the parking lot.”
[66] He stated that he could recognize them from having seen them a few minutes earlier in the parking lot.
[67] He agreed that he did not see them “present” the boxes for shipment, even though he wrote that in the report. He agreed that he did not watch them walk in. He agreed that he did not know how the boxes were brought in such as if Grewal had brought them in himself and if the Applicant came in after.
[68] Later he explained that the only reason the boxes are put on the desk is for the purpose to ship them, and that is what he meant by presenting. However, he agreed that he did not see what the Applicant was doing while the boxes were inspected.
[69] The Air Canada staff person was measuring and weighing the goods. He said that both men were present. Mr. Grewal was at the bench or standing beside it.
[70] After confirming with the Air Canada staff that the destination for the boxes was Nassau, Bahamas, he decided to inspect the boxes pursuant to s. 95 of the Customs Act.
[71] After the search of the boxes, he seized the speakers located inside. Based on his experience electronics are used to export drugs, and narcotics sent to the Bahamas are often cannabis.
[72] He said that Air Canada has high-definition cameras so it was safe to keep the items there temporarily. Later he stated that no camera footage was seized.
[73] In forming grounds for arrest at 11:05, his combined evidence in examination in chief and cross-examination is that he saw the two people unloading the boxes from the car. Then he sees them present it to be exported at the counter. In his view, they are both responsible for the shipment. After the x-ray showed the masses, in his view, there was no other explanation for the organic masses than that they were drugs.
[74] Then BSO Sandhu arrested Grewal as he was still inside the building in the area of the counter. BSO McLaren believes he was sitting. The Applicant was not inside at that time.
Arrest of the Applicant
[75] BSO McLaren then went outside to locate the Applicant. He stated that he found the Applicant at the vehicle, sitting in the passenger side of the same car he had previously observed with the BC plate.
[76] The Applicant had the door open and had his feet positioned outside of the car. He had a backpack on his lap. He held a cigarette and cellphone in his hand. BSO McLaren requested that the Applicant put them down. As the Applicant got out of the car, the backpack fell into the car. BSO McLaren instructed him to go to the back of the car. The Applicant co-operated.
[77] In cross-examination BSO McLaren said that he did not think that the car was on, but the keys were on the floor. He recalled that it was an old-style physical key ignition but he did not make a note of that feature.
[78] BSO McLaren stated that he read the Applicant rights to counsel. He told the Applicant that he was under arrest for smuggling and that he had the right to instruct counsel without delay.
[79] In cross-examination, he agreed that he did not write that in his notes or narrative. He agreed he should have taken notes of doing so. He did not do an addendum because he was questioned at the preliminary hearing and did not believe it was appropriate to add to his notes after the proceedings had progressed into court hearings.
[80] When asked how he knows two years later that he gave the Applicant his rights, he said he remembered saying it. He disagreed with the suggestion that he could be mixing this up with another case among the couple of dozen he had worked on in the past. He did not believe he had arrested anyone since the Applicant, as he was switched to a different department.
[81] He agreed that it is possible the Applicant could have asked for a private lawyer. He did not recall.
[82] The Applicant acknowledged he was under arrest.
[83] BSO McLaren did not take any notes of the Applicant’s responses. BSO McLaren stated that he knew he would hand off the Applicant to another officer and that they would “handle” him properly. He said the arrest happened within a minute.
[84] However, BSO McLaren asked the Applicant two questions without giving him a caution.
[85] First, he asked the Applicant for identification, which the Applicant said was in the bag. He stated that the Applicant got his identification out.
[86] Second, BSO McLaren asked the Applicant if the car was his, seeing the keys in the footwell of the car. BSO McLaren says that the Applicant said it was the other guy’s. BSO McLaren then seized the cellphone, backpack, and car keys.
[87] When asked why he asked the Applicant about the vehicle at this time, he stated that it was part of the offence, that he wanted to know who owned it, and that he didn’t want to give it back to the wrong person. He said he was trying to secure the scene but was not trying to further the investigation at that point.
[88] BSO Dutta and Officer Breen arrived shortly thereafter. BSO McLaren transferred the Applicant to BSO Dutta’s custody.
[89] BSO McLaren took the keys and gave them to BSO Sandhu.
[90] The time from when BSO McLaren arrived on scene to the time of arrest was 17 minutes.
BSO Sandhu
[91] BSO Sandhu has been an officer for three years.
[92] On August 1, 2022 he had been working for nine months with the CBSA. By that time, he had completed drug seizures in the past.
[93] At approximately 22:50, he went with his Superintendent to conduct proactive examinations of packages at the centre. Upon arrival at about 22:52, BSO McLaren pointed out someone unloading boxes. They spoke about it briefly. BSO Sandhu did not recall how many people were unloading.
[94] He said he did not recall any descriptive details. It was dark outside.
[95] They walked into the cargo warehouse. Once inside they did proactive examinations.
[96] He said at some point BSO McLaren wanted to put the boxes through the X-ray machine.
[97] BSO Sandhu believed that there were three boxes. They were the same boxes they saw being unloaded outside. He believed that they had just been checked in.
[98] They placed the boxes in the X-ray machine, and BSO McLaren noticed black masses in the three shipments. BSO Sandhu saw them as well. Because it was a dark mass, they suspected they were narcotics. This suspicion was informed by previous experience with this pattern.
[99] They opened one box and noticed a stereo inside. He did not recall the size.
[100] They placed the boxes with the suspected narcotics to the side, to keep an eye on them.
[101] Then they walked to the main area of the cargo centre. BSO Sandhu noticed Grewal sitting. The officers had a weigh bill and asked Grewal if that was his shipment. He confirmed.
[102] BSO Sandhu did not see the Applicant prior to his arrest.
[103] BSO Sandhu was not cross-examined.
BSO Dutta
[104] In August 2022, BSO Dutta had been working with the CBSA for two years.
[105] He had participated in drug investigations but this was his only involvement in an arrest.
[106] On August 1, 2022, at 23:03, he received a radio call for assistance from BSO McLaren. BSO Dutta was working with BSO Breen and attended the cargo centre parking lot.
[107] BSO Dutta prepared notes and a narrative at the end of his shift around 4:20.
[108] Upon arrival, BSO Dutta spoke with BSO McLaren and was advised that the Applicant was under arrest for smuggling cannabis in boxes for exportation. The Applicant was in handcuffs.
[109] At 23:08, a minute after arriving on scene, BSO Dutta took custody of the Applicant.
[110] BSO Dutta testified that he advised the Applicant that he was under arrest for smuggling, and asked the Applicant if he understood and he said yes.
[111] He then gave him his rights to counsel and asked him if he wanted to contact a lawyer. He also gave him a caution that anything he said or did could be used in court. He said initially he did not read from the card in his notebook.
[112] BSO Dutta said that at 23:17, he read the Applicant his rights to counsel and caution, verbatim from his handbook.
[113] The Applicant told BSO Dutta that he wanted to speak to a lawyer and stated that he did not have money to hire a lawyer. BSO Dutta told him that he can contact a lawyer for free at a later time. This was because they were in a parking lot at the warehouse and, for safety reasons, the call to counsel would be when they got back to the office in a safe environment.
[114] BSO Dutta stated that he explained to the Applicant that he can speak with duty counsel for free. The Applicant did not identify a specific lawyer he wished to speak with.
[115] At some point BSO Dutta frisk searched the Applicant. He did not recall asking the Applicant if he had anything sharp or drugs or illegal items, but it is possible he did ask. If there was such a conversation, it was not in his notes. He said the rights to counsel were read verbatim after he had secured the Applicant and frisk searched him.
[116] BSO Dutta stated that at 23:29, he transported the Applicant back to the office. They arrived at the station at 23:31.
[117] BSO Dutta said that the Applicant expressed that he was confused about the process. BSO Dutta was unsure if this exchange happened while in the vehicle or outside the vehicle. He did not remember what the Applicant was confused about.
[118] In cross-examination, he was pointed to his notes which stated at 23:45: “Culmer was confused about legal process, advised reason or arrest again and to wait to speak to duty counsel.”
[119] BSO Dutta said the Applicant was asking questions about what will happen now. BSO Dutta responded that he explained to him again the reason he was arrested and that he should wait to speak with a lawyer.
[120] In cross-examination, he said that he did not recall the conversation after that or which part the Applicant was confused about. He said his understanding is that if someone doesn’t have a lawyer or can’t hire a lawyer, they can call legal aid to represent them or answer questions.
[121] It was suggested to him that he is not in a position to refute that the Applicant said he wanted to contact someone to get a hold of a lawyer. He agreed.
[122] He said that if a detained person needs to get a lawyer’s number from someone then he would contact that person to facilitate access.
[123] BSO Dutta disagreed that he took it upon himself to get the Applicant to speak to duty counsel. He said that he gave the Applicant to right to contact a lawyer. If he could not do so, he was provided the legal aid number.
[124] BSO Dutta explained that he referenced duty counsel again because the Applicant has the right not to say anything. Since he wished to speak to a lawyer, the Applicant needed to wait and did not need to speak to the officers. He said that the Applicant did not request to speak with a lawyer. He did not recall if the Applicant ever wished to speak with a specific lawyer.
[125] In cross-examination, BSO Dutta stated that he offered duty counsel because the Applicant said he did not have money to hire a lawyer.
[126] He agreed that he did not recall the exact words he used when giving him rights to counsel. He did not recall the Applicant saying he wanted to call his girlfriend to get in touch with a lawyer.
[127] At 23:55, at the station, BSO called duty counsel and left a voicemail.
[128] At 2:55, BSO Dutta called duty counsel again and was able to get in contact with counsel. He called again because he had been waiting a long time for a response.
[129] At 2:55, the Applicant spoke with duty counsel.
[130] At this point, BSO Dutta transferred the Applicant to the custody of the RCMP. That ended his involvement with the Applicant.
RCMP Officer Stickling
[131] RCMP Officer Stickling has worked with the RCMP for seven-and-a-half years. In December 2021, he started working at the Toronto Airport Detachment. This unit takes over the investigation from the CBSA when they find contraband warranting charges.
[132] On August 2, 2022, at around midnight Officer Stickling was instructed by Sgt. Dinkha to attend at the cargo centre. He arrived at about 1:50.
[133] He spoke with BSO Dutta and BSO Sandhu. He arrested the Applicant based on the information provided by the CBSA Officers that the two accused were outside of the centre with the boxes, and that the x-ray of the boxes indicated cannabis was inside.
[134] Officer Stickling arrested the Applicant for exporting cannabis at 3:28, and read him his rights to counsel and gave him a caution and secondary caution. The Applicant responded “yes” to speak to counsel. He remained in the CBSA cells waiting for duty counsel to call back.
[135] He said that he seized the Applicant’s cellphone, driver’s license, car keys and a backpack containing a cellphone and wallet.
[136] He drove the two accused to the RCMP cells in Terminal 1 and they arrived at 4:17.
[137] Officer Ninyo advised the Applicant that he had an immigration hold by the CBSA.
[138] At 5:47 the Applicant spoke with duty counsel.
[139] Officer Stickling did not recall if the Applicant ever asked to speak to a specific lawyer. He did not recall the Applicant saying he was not happy with duty counsel.
RCMP Sgt. Dinkha
[140] Sgt. Dinkha has been with the RCMP for 24 years. In August 2022, he was the on call duty supervisor. He testified on short notice, as it was recently determined by the Crown, in response to the Charter motion, that he was the officer that made the decision to detain the Applicant for a bail hearing.
[141] He stated that the Applicant was held for bail after he was informed by the CBSA that they would be attending and placing an immigration hold on the Applicant. This is because the Applicant is a Bahamian national who was in Canada beyond his temporary permit expiry date.
[142] The combination of the Applicant being arrested for exporting cannabis and being in Canada without legal status where the CBSA was going to place a hold, contributed to his decision to hold the Applicant for a bail hearing.
[143] He stated that he did not know the full ramifications of an immigration hold other than the person is under the control of the CBSA if they are not in the custody of the police and the person could be deported if not released.
[144] In cross-examination, Sgt. Dinkha said that pursuant to s. 498 of the Criminal Code, R.S.C. 1985, c. C-46 (“Code”), he did not have concerns that Culmer would not show up to court, or regarding Culmer’s identity, safety or security of a witness. However, since Culmer was a foreign national without status and Sgt. Dinkha was not sure if he would be deported or not, he thought it was in the best interests of the public to have a Justice of the Peace decide the release and terms.
[145] He was aware that the co-accused Grewal was released. This is because the CBSA informed him that Grewal was in Canada legally.
ISSUES
- Whether and which of the Applicant’s Charter rights were breached.
- The interpretation of the public interest language in s. 498 1.1(a) of the Code.
- If there were Charter breaches, what is the remedy.
[146] The Applicant did not challenge the BSOs’ authority to search the boxes submitted for exportation from Canada to Nassau Bahamas pursuant to the Customs Act.
[147] The focus of the Charter motion dealt with the arrest, detention and Charter rights engaged.
[148] The Crown conceded that it did not seek to admit the Applicant’s responses to BSO McLaren’s questions about his identity, backpack, and vehicle ownership.
[149] The Applicant did not testify and there was no defence evidence called.
POSITIONS
[150] The Applicant submits that his arrest was unlawful and the search incident to arrest was unreasonable, contrary to ss. 8 and 9 of the Charter.
[151] The Applicant submits that s. 10(b) Charter rights were breached by BSO McLaren and BSO Dutta. When the Applicant was under arrest, he was not given his right to counsel until several minutes after his arrest. The officers elicited evidence from him through questioning before he was properly given his rights to counsel by BSO Dutta. The Applicant also submits that he was not properly cautioned. Further, the Applicant submits he was denied his right to counsel of choice and was “steered” to speak to duty counsel against his wishes.
[152] The Applicant submits that his s. 9 Charter right was breached when he was not released on August 2, 2022, from the RCMP detachment after being processed. The Applicant conceded that he is a Bahamian citizen who overstayed his visit to Canada. However, the fact that he has no status in Canada is not determinative of the need to be held for bail. The Applicant was co-operative and compliant.
[153] The Respondent Crown submits that the arrest was based on reasonable and probable grounds that the accused was engaged in exportation of cannabis.
[154] The Crown concedes the Applicant’s rights to counsel were breached initially and indicated that they would not rely on the evidence elicited or seized by BSO McLaren.
[155] The Crown submits that the Applicant was properly held for a bail hearing in the overall circumstances.
LAW and ANALYSIS
Arrest
[156] Recently in R. v. Beaver, 2022 SCC 54, 475 D.L.R. (4th) 575, the Supreme Court summarized the legal requirements and principles for a warrantless arrest.
(1) Legal Principles Governing a Warrantless Arrest
[71] The police have statutory authority to arrest a person without a warrant under s. 495 of the Criminal Code, R.S.C. 1985, c. C-46. The applicable part of s. 495(1)(a) in this appeal, allows a peace officer to arrest a person without a warrant if, on reasonable grounds, they believe the person has committed or is about to commit an indictable offence.
[72] The essential legal principles governing a warrantless arrest are settled:
A warrantless arrest requires subjective and objective grounds to arrest. The arresting officer must subjectively have reasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint (R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-51; R. v. Latimer, [1997] 1 S.C.R. 217, at para. 26; R. v. Tim, 2022 SCC 12, at para. 24).
In assessing the subjective grounds for arrest, the question is whether the arresting officer honestly believed that the suspect committed the offence (R. v. Shepherd, 2009 SCC 35, at para. 17). Subjective grounds for arrest are often established through the police officer’s testimony (see, for example, Storrey, at p. 251; Latimer, at para. 27; Tim, at para. 38). This requires the trial judge to evaluate the officer’s credibility, a finding that attracts particular deference on appeal (R. v. G.F., 2021 SCC 20, at para. 81; R. v. Beaudry, 2007 SCC 5, at para. 4).
The arresting officer’s subjective grounds for arrest must be justifiable from an objective viewpoint. This objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer (Storrey, at pp. 250-51; Latimer, at para. 26; Tim, at para. 24).
Evidence based on the arresting officer’s training and experience should not be uncritically accepted, but neither should it be approached with “undue scepticism” (R. v. MacKenzie, 2013 SCC 50, at paras. 64-65). Although the analysis is conducted from the perspective of a reasonable person “standing in the shoes of the [arresting] officer”, deference is not necessarily owed to their view of the circumstances because of their training or experience (R. v. Chehil, 2013 SCC 49, at paras. 45 and 47; MacKenzie, at para. 63). The arresting officer’s grounds for arrest must be more than a “hunc[h] or intuition” (Chehil, at para. 47).
In evaluating the objective grounds to arrest, courts must recognize that, “[o]ften, the officer’s decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete” (R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.), at p. 750, per Doherty J.A.). Courts must also remember that “[d]etermining whether sufficient grounds exist to justify an exercise of police powers is not a ‘scientific or metaphysical exercise’, but one that calls for the application of ‘[c]ommon sense, flexibility, and practical everyday experience’” (R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at para. 22, per Fairburn J.A. (as she then was), citing MacKenzie, at para. 73).
“Reasonable and probable grounds” is a higher standard than “reasonable suspicion”. Reasonable suspicion requires a reasonable possibility of crime, while reasonable and probable grounds requires a reasonable probability of crime (Chehil, at para. 27; R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1166). At the same time, police do not require a prima facie case for conviction before making an arrest (Storrey, at p. 251; Shepherd, at para. 23; Tim, at para. 24). Nor do the police need to establish that the offence was committed on a balance of probabilities (Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, at para. 114; see also R. v. Henareh, 2017 BCCA 7, at para. 39; R. v. Loewen, 2010 ABCA 255, 490 A.R. 72, at para. 18). Instead, the reasonable and probable grounds standard requires “a reasonable belief that an individual is connected to the offence” (MacKenzie, at para. 74 (emphasis deleted); Debot, at p. 1166). A reasonable belief exists when “there is an objective basis for the belief which is based on compelling and credible information” (Mugesera, at para. 114; see also R. v. Al Askari, 2021 ABCA 204, 28 Alta. L.R. (7th) 129, at para. 25; R. v. Omeasoo, 2019 MBCA 43, [2019] 6 W.W.R. 280, at para. 30; R. v. Summers, 2019 NLCA 11, 4 C.A.N.L.R. 156, at para. 21). The police are also not required to undertake further investigation to seek exculpatory facts or to rule out possible innocent explanations for the events before making an arrest (Chehil, at para. 34; Shepherd, at para. 23; R. v. Ha, 2018 ABCA 233, 71 Alta. L.R. (6th) 46, at para. 34; R. v. MacCannell, 2014 BCCA 254, 359 B.C.A.C. 1, at paras. 44-45; R. v. Rezansoff, 2014 SKCA 80, 442 Sask. R. 1, at para. 28; E. G. Ewaschuk, Criminal Pleadings & Practice in Canada (3rd ed. (loose-leaf)), at § 5:40).
The police cannot rely on evidence discovered after the arrest to justify the subjective or objective grounds for arrest (R. v. Biron, [1976] 2 S.C.R. 56, at p. 72; R. v. Brayton, 2021 ABCA 316, 33 Alta. L.R. (7th) 241, at para. 43; Ha, at paras. 20-23; R. v. Montgomery, 2009 BCCA 41, 265 B.C.A.C. 284, at para. 27; Ewaschuk, at § 5:40).
When a police officer orders another officer to make an arrest, the police officer who directed the arrest must have had reasonable and probable grounds. It is immaterial whether the officer who makes the arrest personally had reasonable and probable grounds (Debot, at pp. 1166-67).
Search Incident to Arrest
[157] In general, when there is a lawful arrest, the common law power to search incident to arrest permits reasonable searches within the meaning of s. 8 of the Charter: Cloutier v. Langlois, [1990] 1 S.C.R. 158, 105 N.R. 241, at p. 182; R. v. Stillman, [1997] 1 S.C.R. 607, 144 D.L.R. (4th) 193, at para. 27; R. v. Caslake, [1998] 1 S.C.R. 51, 155 D.L.R. (4th) 19, at paras. 12, 14; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at paras. 44, 49, 75, 104; and R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at paras. 49 and 52.
[158] The right to search arises from a lawful arrest. This right is justifiable because the arrest itself requires reasonable and probable grounds or an arrest warrant. However, since the legality of the search is derived from the legality of the arrest, if the arrest is later found to be invalid, the search will be also. As Justice Cory stated in Stillman, at para. 27, “[n]o search, no matter how reasonable, may be upheld under this common law power [of search incident to arrest] where the arrest which gave rise to it was arbitrary or otherwise unlawful.”
[159] This common law power is extraordinary because it requires neither a warrant nor reasonable and probable grounds. That the exercise of this extraordinary power has been considered in general to be constitutional reflects the law enforcement objectives which are served by searches of people who have been lawfully arrested. As recognized in Caslake, in the context of arrest, the need for police “to gain control of things or information […] outweighs the individual’s interest in privacy”: Caslake, at para. 17; see also R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 45.
[160] In Caslake, the Supreme Court clarified that the scope of the search is limited to the area and to those items for which the law has granted the authority to search. To the extent that a search exceeds these limits, it is not authorized by law.
[161] Relevant factors are the expectation of privacy, the degree of intrusiveness, good faith, and the reasonableness of the search conducted.
[162] In Cloutier, L’Heureux-Dubé J. held that the court must balance the state’s interests in law enforcement and the protection of the police against the arrested person’s interest in privacy, in order to determine whether a search was a reasonable and justifiable use of the police power. There are three important limits on the power to search incident to arrest:
This power does not impose a duty. The police have some discretion in conducting the search. Where they are satisfied that the law can be effectively and safely applied without a search, the police may see fit not to conduct a search. They must be in a position to assess the circumstances of each case so as to determine whether a search meets the underlying objectives.
The search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused. The purpose of the search must not be unrelated to the objectives of the proper administration of justice, which would be the case for example if the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions.
The search must not be conducted in an abusive fashion and in particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation.
Cloutier, at p. 186
[163] The restriction that the search must be “truly incidental” to the arrest means that the police must be attempting to achieve some valid purpose connected to the arrest, such as the discovery of an object that may pose a threat, or that may facilitate escape, or that may provide evidence against the accused in relation to the offence(s) that they have been arrested for.
[164] Whether such an objective exists will depend on what the police were looking for and why. There are both subjective and objective aspects to this issue. The police must have one of the purposes for a valid search incident to arrest in mind when the search is conducted. Further, the officer’s belief that this purpose will be served by the search must be reasonable. There must be a reasonable prospect of securing evidence for which the accused is being arrested: Caslake, at paras. 19-23.
[165] The police do not need reasonable and probable grounds to exercise the warrantless search power. However, they must have some valid reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable.
Findings on Arrest
[166] I find that Crown has established that BSO McLaren had reasonable and probable grounds to believe that the Applicant was a party to smuggling marijuana inside electronics that were inside the Home Depot boxes that were x-rayed at the Air Canada cargo centre.
[167] I find that BSO McLaren observed the Applicant in the parking lot with Grewal, unloading the same boxes in issue. A short time later, he observed the Applicant and Grewal inside the cargo centre at the counter, proximate to the boxes when they were being processed by the cargo centre staff.
[168] I accept as credible BSO McLaren’s explanation that he did not put the full explanation in his notes but did so in the narrative. I pause here to comment that the failure to put essential facts in his notes is troubling. It is not a practice that is condoned or should continue. In some cases, this could be a more significant discrepancy. However, having considered the total evidence, heard from this officer and considered his testimony, I accept his explanation in this case as credible.
[169] Also, I accept his refutation of the suggestion that he did not see the Applicant inside the cargo centre or that he did not reasonably connect him to the boxes.
[170] I accept the valid points raised by the Defence that BSO McLaren did not see them bring the boxes inside or know who placed them on the counter. Also, BSO McLaren did not know when the Applicant came inside the cargo centre. Prior to observing the two men and boxes at the counter, BSO McLaren was inside the bonded area of the cargo centre considering items to examine.
[171] However, I am satisfied that BSO McLaren saw the Applicant inside the cargo centre, still involved with the boxes at the time the officers decided to conduct an examination.
[172] I find that BSO McLaren’s observations, as I have found them, provides an objectively reasonable basis for the officer to conclude the boxes were possessed by the Applicant and Grewal. Although BSO McLaren did not distinctly recall their positions, he saw them both around the counter.
[173] The subsequent X-ray of the boxes uncovered dark masses consistent with the officer’s experience of drug smuggling inside electronics. His experience in this regard was not challenged.
[174] I am satisfied that the arresting officer’s subjective grounds for arrest are justifiable from an objective viewpoint. This objective assessment is based on the totality of the circumstances known to BSO McLaren at the time of the arrest, including the context of the situation, as seen from the perspective of a reasonable person with comparable knowledge, experience and training.
[175] Defence counsel for the Applicant conceded that if the arrest was lawful, the search incident to arrest of the Applicant’s backpack and identification, and the seizure of the cellphone, were authorized by law. I accept this concession.
[176] To be clear, I have scrutinized BSO McLaren’s evidence overall. My findings above do not mean that I accept all of BSO McLaren’s evidence or explanations.
[177] For instance, I do not accept that BSO McLaren’s suspicion of the Applicant or his co-accused when he exchanged a glance with the Applicant in the parking lot was reasonable. He accepted that it was not reasonable later in cross-examination.
[178] I recognize the Defence argument that this could be symptomatic of BSO McLaren trying to portray the Applicant as suspicious earlier and without a basis, thereby undermining his credibility. Further, that it could suggest that BSO McLaren’s claim to have seen the Applicant in the Cargo centre is not accurate. The Defence argues that this mindset supports that when he wrote the narrative he added that the Applicant was inside the cargo centre when he was not in order to justify the arrest.
[179] I also do not accept BSO McLaren’s explanation that he asked the Applicant about who owned the car because he wanted to know who to return it to later. As I will address further later in the s. 10 Charter analysis, I find that BSO McLaren asked the Applicant who owned the car because he viewed the vehicle as part of the offence.
[180] I have considered that BSO Sandhu did not testify that he saw the Applicant or make notes of seeing him. However, I find that he was a trainee at the time, focused on the directions of BSO McLaren about boxes to examine. BSO Sandhu later arrested the co-accused Grewal who was inside.
[181] Further, although not legally required, BSO McLaren could have sought to retrieve the camera footage inside the cargo centre. He did not do so. This evidence clearly would have been helpful. It would have independently confirmed whether the Applicant did attend inside of the cargo centre as he described. That said, I do not draw an adverse inference. There is no defence argument before me about lost evidence or drawing an adverse inference from a failure to collect relevant evidence. The record does not indicate if this video was ever requested disclosure. Also, this is an area that remains open to the Applicant to explore at trial.
[182] I have considered the Defence positions overall and in particular whether BSO McLaren was filling in the gaps in his narrative to inculpate both accused rather than just Grewal, who was inside.
[183] BSO McLaren acknowledged when a hypothetical was put to him that if he only saw the Applicant in the parking lot, not unloading the boxes, and at the car the entire time, he may not have reasonable grounds. However, he stated in response to another hypothetical, that if he saw the Applicant preparing the boxes outside, unloading the boxes, even if he gave them to his co-accused to walk into the cargo centre, he is still part of the offence.
[184] I have also taken into consideration that BSO McLaren breached the Applicants rights to counsel and right to be given a caution as part of the global credibility analysis. Although those breaches are more applicable to ss. 7 and 10 of the Charter, they do demonstrate the officer taking short cuts.
[185] I have factored the credibility concerns with the totality of evidence I accept, in relation to whether I can rely on BSO McLaren’s purported observations of the Applicant inside the cargo centre.
[186] Ultimately, on this record at this stage of the proceedings, I am satisfied that BSO McLaren saw the Applicant inside with the co-accused and connected to the boxes. He was clear and convincing on these points.
[187] That does not foreclose that a subsequent trier of fact with a different record or with the benefit of Applicant’s testimony could come to a different conclusion.
[188] Even if the Applicant did not come inside the cargo centre, which I find he did on this record, BSO McLaren had reasonable grounds to arrest him for exporting since there is sufficient evidence that he was aiding Grewal with bringing and unloading the same three boxes which contained significant drugs for the purpose of exportation to Nassau. There are reasonable grounds to believe that the Applicant was not simply a delivery person. He remained waiting for Grewal afterwards with keys to the vehicle. Of course, I am not determining this issue on a trial related reasonable doubt standard.
[189] Although the Applicant may have viable defences that he did not have knowledge of the contents, it is not disputed that the drugs were valuable, in the range of 70 thousand dollars. It is clear that the Applicant was involved in bringing them to the cargo centre for the purpose of exportation, even if hypothetically he did not go or remain inside.
[190] In conclusion on this point, I find that the arrest was lawful.
Findings on Search Incident to Arrest
[191] I find that the search incident to the lawful arrest of the seizure of the Applicant’s cellphone, backpack, and keys was lawful.
[192] Counsel for the Applicant conceded that if the arrest was found to be lawful, the search incident to arrest was lawful. Again, I accept this concession. It reflects that the police had a valid or reasonable basis related to the arrest for conducting the search at the time the search was carried out, and that reason was objectively reasonable. The police had a reasonable prospect of securing evidence from these items connected to the basis for the arrest for exporting cannabis to Nassau: Caslake, at paras. 19-23.
[193] The cellphone, backpack, and keys were in the Applicant’s possession at the time of the arrest. He had a reasonable expectation of privacy in the items. The backpack and keys were inside the vehicle. A vehicle attracts a relatively lower expectation of privacy, compared with a residence: Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 17; see also R. v. Wise, [1992] 1 S.C.R. 527, 133 N.R. 161 at p. 534.
[194] Since the cellphone’s contents attract a high privacy interest, it was not searched until a warrant was obtained on October 13, 2022. The constitutional validity of the warrant was not challenged.
[195] Overall, I am satisfied that this evidence is admissible.
Rights to Counsel and Caution
[196] Before reviewing the law in this section, it is important to reiterate that the Crown confirms that they do not seek to admit the evidence that the Applicant seeks to exclude of his responses to BSO McLaren’s questions about providing his identification and whether he owns the vehicle.
[197] During the Charter motion submissions and questions by the court, the Crown eventually conceded that BSO McLaren breached the Applicant’s ss. 7 and 10 rights by not providing him with a caution and only giving cursory rights to counsel before asking him questions. The initial rights are that he told him that he was under arrest for smuggling and that he had the right to instruct counsel without delay.
[198] I accept those concessions and this evidence is excluded from the trial.
The Law
[7] Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[10] Everyone has the right on arrest or detention:
(b) To retain and instruct counsel without delay and to be informed of that right; and
[24.] (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[199] The right to silence as a common law principle was recognized by the Supreme Court in R. v. Hebert, [1990] 2 S.C.R. 151, 110 N.R. 1, and affirmed in R. v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519. The essence of the right to silence is that the suspect be given a choice and the freedom to choose whether to speak to the authorities or refuse to make a statement. This right of choice comprehends the notion that the suspect has been accorded the right to consult counsel and thus to be informed of the alternatives and their consequences, and that the actions of the officers have not unfairly frustrated their decision on the question of whether to make a statement to the authorities.
[200] In Turcotte at para. 41, Justice Abella, writing for the Court, reiterated Justice Lamer’s defining statement of the right to silence in Rothman v. The Queen, [1981] 1 S.C.R. 640, 121 D.L.R. (3d) 578:
In Canada the right of a suspect not to say anything to the police . . . is merely the exercise by him of the general right enjoyed in this country by anyone to do whatever one pleases, saying what one pleases or choosing not to say certain things, unless obliged to do otherwise by law. It is because no law says that a suspect, save in certain circumstances, must say anything to the police that we say that he has the right to remain silent, which is a positive way of explaining that there is on his part no legal obligation to do otherwise. [Footnotes omitted; p. 683.]
[201] The common law right to silence reflects the general principle that, absent statutory or other legal compulsion, no one is obligated to provide information to the police or respond to questioning.
[202] The purpose of s. 10(b) is to provide a detainee with an opportunity to obtain legal advice about his rights relevant to his legal situation. R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 24.
[203] The rights to counsel are to be provided immediately upon arrest and without delay. R. v. Suberu, 2009 SCC 33, [2009] 2 SCR 460, at para. 41.
[204] In R. v. Brydges, [1990] 1 S.C.R. 190, 103 N.R. 282, at pp. 203-204, the Supreme Court explained that Section 10(b) of the Charter imposes at least two duties on the police in addition to the duty to inform a detainee of their rights. First, the police must give the accused or detained person a reasonable opportunity to exercise the right to retain and instruct counsel, and second, the police must refrain from questioning or attempting to elicit evidence from the detainee until the detainee has had that reasonable opportunity. The second duty includes a bar on the police from compelling the detainee to make a decision or participate in a process which could ultimately have an adverse effect in the conduct of an eventual trial until the person has had a reasonable opportunity to exercise the right to counsel: R. v. Ross, [1989] 1 S.C.R. 3, [1990] S.C.J. No. 8, at p. 12.
[205] For the right to counsel to be effective, the detainee must have access to this advice before he is questioned or otherwise required to provide evidence: R. v. Manninen, [1987] 1 S.C.R. 1233, [1987] S.C.J. No. 41, at pp. 1242-43.
[206] In R. v. Bartle, [1994] 3 S.C.R. 173, 19 O.R. (3d) 802 at para. 17-28, the Supreme Court further explained the informational and implementational purpose of rights to counsel and the correlated duties imposed on police officers to refrain from eliciting evidence:
17 This Court has said on numerous previous occasions that s. 10(b) of the Charter imposes the following duties on state authorities who arrest or detain a person:
(1) To inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;
(2) If a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and
(3) To refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).
(See for example, Manninen, at pp. 1241-42; R. v. Evans, [1991] 1 S.C.R. 869, at p. 890; and Brydges, at pp. 203-4.)
18 Importantly, the right to counsel under s. 10(b) is not absolute. Unless a detainee invokes the right and is reasonably diligent in exercising it, the correlative duty on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended: R. v. Tremblay, [1987] 2 S.C.R. 435, at p. 439, and R. v. Black, [1989] 2 S.C.R. 138, at pp. 154-55. Furthermore, the rights guaranteed by s. 10(b) may be waived by the detainee, although the standard for waiver will be high, especially in circumstances where the alleged waiver has been implicit: Clarkson, at pp. 394-96; Manninen, at p. 1244; Black, at pp. 156-57; Brydges, at p. 204; and Evans, at pp. 893-94.
19 Under these circumstances, it is critical that the information component of the right to counsel be comprehensive in scope and that it be presented by police authorities in a "timely and comprehensible" manner: R. v. Dubois, [1990] R.J.Q. 681 (C.A.), (1990), 54 C.C.C. (3d) 166, at pp. 697 and 196 respectively. Unless they are clearly and fully informed of their rights at the outset, detainees cannot be expected to make informed choices and decisions about whether or not to contact counsel and, in turn, whether to exercise other rights, such as their right to silence: Hebert. Moreover, in light of the rule that, absent special circumstances indicating that a detainee may not understand the s. 10(b) caution, such as language difficulties or a known or obvious mental disability, police are not required to assure themselves that a detainee fully understands the s. 10(b) caution, it is important that the standard caution given to detainees be as instructive and clear as possible: R. v. Baig, [1987] 2 S.C.R. 537, at p. 540, and Evans, at p. 891.
20 Indeed, the pivotal function of the initial information component under s. 10(b) has already been recognized by this Court. For instance, in Evans, McLachlin J., for the majority, stated at p. 891 that a "person who does not understand his or her right cannot be expected to assert it". In that case, it was held that, in circumstances which suggest that a particular detainee may not understand the information being communicated to him or her by state authorities, a mere recitation of the right to counsel will not suffice. Authorities will have to take additional steps to ensure that the detainee comprehends his or her s. 10(b) rights. Likewise, this Court has stressed on previous occasions that, before an accused can be said to have waived his or her right to counsel, he or she must be possessed of sufficient information to allow him or her to make an informed choice as regards exercising the right: R. v. Smith (Norman MacPherson), [1991] 1 S.C.R. 714, at pp. 724-29, and Brydges, at p. 205.
21 To conclude, because the purpose of the right to counsel under s. 10(b) is about providing detainees with meaningful choices, it follows that a detainee should be fully advised of available services before being expected to assert that right, particularly given that subsequent duties on the state are not triggered unless and until a detainee expresses a desire to contact counsel. In my opinion, the purpose of the right to counsel would be defeated if police were only required to advise detainees of the existence and availability of Legal Aid and duty counsel after some triggering assertion of the right by the detainee. Accordingly, I am unable to agree with the trial judge and the Court of Appeal below that information about duty counsel and how to access it need only be provided to detainees when they express some concern about affordability or availability of counsel. Indeed, in putting forward such a position, I can only conclude with respect that both the trial judge and the Court of Appeal erred in their interpretation and application of Brydges. It is, therefore, to a consideration of Brydges that I must now turn.
28 To conclude, Brydges stands for the proposition that police authorities are required to inform detainees about Legal Aid and duty counsel services which are in existence and available in the jurisdiction at the time of detention. In case there is any doubt, I would add here that basic information about how to access available services which provide free, preliminary legal advice should be included in the standard s. 10(b) caution. This need consist of no more than telling a detainee in plain language that he or she will be provided with a phone number should he or she wish to contact a lawyer right away. Failure to provide such information is, in the absence of a valid waiver (which, as I explain infra, will be a rarity) a breach of s. 10(b) of the Charter. It follows, therefore, that where the informational obligations under s. 10(b) have not been properly complied with by police, questions about whether a particular detainee exercised his or her right to counsel with reasonable diligence and/or whether he or she waived his or her facilitation rights do not properly arise for consideration. Such questions are simply not relevant under s. 10(b) (although they may be when it comes to considering whether the evidence obtained in the course of the Charter violation should be excluded under s. 24(2) of the Charter). The breach of s. 10(b) is complete, except in cases of waiver or urgency, upon a failure by state authorities to properly inform a detainee of his or her right to counsel and until such time as that failure is corrected.
Findings on Rights to Counsel and Caution
[207] At the outset, there are a few points worth emphasizing.
[208] First, I am troubled by the numerous officers’ failure to take adequate notes of their interactions with the Applicant specific to the provision of the rights to counsel. Accurate notetaking about the provision of a Charter right is a fundamental obligation of the police.
[209] The officers seemed to take for granted the necessity to accurately record their interactions with the accused to assist with disclosure and refreshing their memory given that cases are often heard years later. Many of the officers struggled significantly to recall their interactions with the two accused.
[210] It appears that the officers believed that by merely indicating they gave rights to counsel and to varying extents, indicating the circumstances of the arrest, was sufficient. In some cases, this failure could contribute to a successful Charter violation argument.
[211] For example, BSO McLaren did not note the Applicant’s responses. BSO Dutta did not note the applicant’s responses the first time he read him his rights, or any details about his exchange with the Applicant when the Applicant expressed confusion about his rights. RCMP officer Stickling did not recall if the Applicant asked to speak with duty counsel or provided a name of a lawyer.
[212] The Applicant did not argue that the failure to take notes was a separate Charter breach but rather submitted it as relevant to the officers credibility and reliability. I agree that it is relevant to my assessment of their evidence.
[213] That said, I have considered carefully the testimony of the arresting officers as to whether and when the rights to counsel were properly given during the interaction with the accused.
[214] While factoring their at times questionable, or absent, note-taking and failed memories, and not relying on those parts, there are some other parts of their evidence that I found to be credible.
[215] BSO Dutta gave the Applicant his rights to counsel and a caution in full, on two occasions: 23:17 and 23:45. RCMP officer Cst. Stickling also gave the Applicant his rights to counsel and a caution when he was transferred to RCMP control. The Applicant voiced no complaint with speaking to duty counsel before and after the consultation.
[216] At 23:17, the Applicant was told by BSO Dutta his rights to counsel and cautioned. The Applicant said that he understood his rights. He wanted to speak to counsel. He stated that he did not have money to hire counsel and then was informed by BSO Dutta that he could speak with duty counsel. I find that this was clearly communicated to him.
[217] About a half hour later, at 23:45, when the Applicant said to BSO Dutta he was confused about the legal process, he was explained his rights to counsel again. He was told to wait to speak to duty counsel, who had already been contacted and had not called back.
[218] This is indicative that once properly informed of his full rights, the Applicant asserted the right to counsel. I accept BSO Dutta’s explanation that when the Applicant expressed confusion about a half hour later, he re-read the Applicant his rights to counsel at the station and directed him to wait for duty counsel to call back. This makes sense since previously the Applicant said he could not afford a lawyer but responded affirmatively about wanting to speak with a lawyer.
[219] Second, it is clear that earlier, at around 23:07, BSO McLaren breached the Applicant’s ss. 7 and 10 Charter rights. He rushed through the process and failed to fulfill the necessary informational and implementational obligations required for constitutional compliance of the provision of rights to counsel with a caution. He elicited evidence before properly providing the Applicant with his rights, violating his right to silence.
[220] The Applicant’s rights to counsel without delay were violated. I find that it was not until BSO Dutta arrived and provided the Applicant with rights to counsel in full and properly at 23:17 that the Applicant was correctly informed of his rights and cautioned.
[221] BSO Dutta’s evidence about the provision of rights to counsel and caution at 23:08 is not adequately documented in terms of the Applicant’s understanding, and overall insufficient since it was not verbatim from his handbook and he did not record the Applicant’s answers. Although I accept BSO Dutta’s evidence that he read the Applicant his rights and caution at 23:08, the fact that he did it again from his notebook at 23:17 indicates even he recognized that it was likely not clear or reliably done in its entirety and accurately at 23:08.
[222] The s. 10 and section 7 breaches by BSO McLaren are conceded by the Crown. The evidence derived from BSO McLaren’s questioning is not part of the Crown’s case, and for good reason. However, I find that the questioning is not tied to the valid arrest and search and seizure of the backpack, passport, and cellphone.
[223] BSO McLaren did not provide the required information to the Applicant about available Legal Aid and free duty counsel services at the time of arrest, and how to access them. BSO McLaren did not hold off from questioning the Applicant before the Applicant had a chance to assert his rights.
[224] He did not identify the Applicant’s answers when he told the Applicant part of his rights to counsel. He made no notes of the responses. He acknowledged it was possible the Applicant wanted to speak to counsel, possibly private counsel. At that time, the Applicant was not told of the right to access free duty counsel.
[225] In addition, BSO McLaren did not give the Applicant a caution that he had the right to silence and that anything he said or did could be used against him in criminal proceedings.
[226] I am not satisfied that while interacting with BSO McLaren, the Applicant was given and understood his full rights. Before being asked any questions, the Applicant was entitled to receive his rights in full.
[227] When he was told his rights, it became clear he wanted to speak to counsel. Before being questioned, it was necessary that the Applicant be given proper access to legal advice, including whether and how to exercise the right to silence in the face of questioning, which itself includes “the benefits and drawbacks of cooperating” and “strategies to resist cooperation”: R. v. Lafrance, 2022 SCC 32, 472 D.L.R. (4th) 1, at paras. 75-76; see also R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 28.
Findings on Steering to Duty counsel
[228] I do not find that the officers cumulatively or individually steered the Applicant to speak to duty counsel, breaching his right to counsel of choice, or that they violated the informational or implementational components of s. 10(b).
[229] The Applicant submits that the officers were required to determine if the Applicant wanted them to call a family member or to explain to him that even if he could not afford to hire a lawyer, he could still consult with a private lawyer for preliminary advice without cost. In other words, detained persons should be advised about the availability of resources to locate and identify legal counsel other than duty counsel if desired.
[230] There is merit to the Applicant’s point as a broader principle, but the record in support of the Applicant’s position in this case is thin. It is insufficient to determine this issue more broadly.
[231] The Applicant did not testify on this motion. He did not provide evidence or point to any part of the record that he was misinformed, misled or steered to duty counsel, or that had he been told he could access other resources such as a list of lawyers, or that he would have called private counsel. He spoke with duty counsel and voiced no complaint.
[232] In the Applicant’s factum he submitted that he did not ask to speak to duty counsel, rather he asked to speak to his common law spouse to address legal issues such as housing, bail and posting a bond. The Applicant argues that “Had the officer taken the Applicant’s pleas to contact his spouse seriously the Applicant would have been able to get counsel of choice.”
[233] However, there is no evidence that any of this transpired. These claims were not adduced in evidence from any witness. There is no evidence that substantiates this position.
[234] The available record before me establishes that the Applicant was told of his rights to counsel on multiple occasions. When told his full rights to counsel including the option of duty counsel and legal aid, the Applicant told BSO Dutta that he could not afford to hire counsel and wanted to speak to counsel. When he later told BSO Dutta that he was confused about his rights, his rights to counsel were explained to him again in full. He was told to wait to speak to duty counsel. On this record, he did not indicate any issue or concerns with comprehension of his rights after they were explained again. This is not a situation where there is evidence that he asked or signalled a wish to speak to a family member to get in touch with counsel of choice.
[235] The Applicant points to when BSO Dutta re-explained to the Applicant his rights and told him that he should wait to speak to duty counsel as indicative of improper steering. However, I find that this occurred because the Applicant already said he could not afford to hire a lawyer. He did not indicate that he was confused about duty counsel being contacted in these circumstances, especially after being told his rights again.
[236] The record does not establish that BSO Dutta told the Applicant or implied that he did not have the option to speak to any lawyer of his choice or that his only option was to speak to duty counsel. By having his rights read to him again, the Applicant would have understood the choice was his. No pressure was put on the Applicant to speak to duty counsel. This is not a case where the accused gave up his right to speak to a lawyer of his choice and speak with duty counsel: Willier, at para. 43.
[237] In this total context, the officers’ decision to contact duty counsel was reasonable. BSO Dutta correctly responded to the Applicant’s confusion to fulfill the additional informational and implementational duties. He took reasonable steps to ensure the Applicant understood his rights to counsel; and to have him speak to counsel: Sinclair, at paras. 55-57. He did not seek to elicit any evidence.
[238] I am satisfied BSO Dutta took those steps to provide the Applicant with an opportunity to obtain legal advice relevant to his legal situation and to allow him not only to be informed of his rights and obligations under the law but also to obtain advice as to how to exercise those rights, including but not limited to whether to speak to the CBSA or police: Sinclair, at paras. 24-26, citing Manninen, at pp. 1242-43; also cited in Lafrance, at paras. 70-73.
[239] No statement or evidence was obtained from the Applicant. The officers held off from questioning while waiting for counsel to call back.
[240] This is not a situation like in Lafrance, where the Supreme Court discussed a situation where there is reason to question the detainee’s understanding of his rights and this imposes on the police a duty to give him a further opportunity to talk to a lawyer.
[241] In the Applicant’s case, the officers ensured that the Applicant obtained legal advice to account for the particular situation he was facing and conveyed it to him again in a manner that he could understand. No statement was taken thereafter.
[242] Again, there is no evidence that after being re-read his rights, the Applicant indicated in any way he wanted to speak to any other counsel, relative, or person to help get a lawyer. He also did not complain after speaking to duty counsel.
[243] I recognize that when a detainee positively indicates that he or she does not understand his or her right to counsel, the police cannot rely on a mechanical recitation of that right and must facilitate that understanding: R. v. Evans, [1991] 1 S.C.R. 869, 124 N.R. 278. The police have control over the detainee and have a responsibility to ensure they understand their rights and that their wish to speak to counsel is facilitated.
[244] In the end, in my view, the facts overall here are relatively straightforward. The Applicant could not afford counsel, wanted to speak to counsel, and access to duty counsel was facilitated. This was after his rights were explained to him multiple times. BSO Dutta explained to him his rights a few times. He was also read his rights to counsel and cautions by officer Stickling after being transferred to RCMP cells, to which he responded affirmatively, further supporting he understood his rights.
[245] After speaking with counsel, the Applicant made no complaint and did not request another opportunity to speak to counsel. BSO Dutta and his colleagues ceased questioning until the Applicant had time to consult with counsel. There was no effort to elicit evidence from him after 23:17 on August 1, 2022. Any evidence obtained by BSO McLaren is not being adduced at this trial based on reasonable concessions of the breaches.
[246] This is not a case of the police circumventing a detainee’s desire to speak to a private lawyer. It is not a case where the detainee requests another consultation or the circumstances reasonably warrants second opportunity to speak to counsel. There was no change in the nature of the jeopardy or a waiver after considerable delay in getting duty counsel to call back, which would indicate that objectively renewed giving of rights and opportunity for consultation was required to make an informed choice whether to cooperate or not: Sinclair, at para. 57.
[247] BSO Dutta respected that where there were reasons to question the detainee’s understanding of his section 10(b) right, the police should reiterate his rights to consult counsel, to ensure that the purpose of s. 10 are fulfilled: R. v. Prosper, [1994] 3 S.C.R. 236, 118 D.L.R. (4th) 154; Willier, at paras. 31 and 32.
[248] Since the Crown is not seeking to admit the evidence resulting from the breaches I have found, I will provide a focused section 24(2) analysis for completeness due to the important rights engaged.
[249] However, to be clear, I would exclude the Applicant’s responses to BSO McLaren’s questions about his name and vehicle ownership as they were serious breaches of fundamental rights where there is no ambiguity in the law in regard to the requirements. The questions asked are a serious breach of the rights to counsel and silence, which were deliberately sought to adduce inculpatory evidence that could be used against him in criminal proceedings for an indictable offence: LaFrance, at para. 93.
[250] There was no justification for the breaches such as urgency or exigency. “An officer, who violates a Charter right while knowing better, commits a flagrant breach”: R v. Adler, 2020 ONCA 246, 388 C.C.C. (3d) 114, at para. 27. This factor favours exclusion.
[251] The impact of the breaches is significant. Section 10(b) rights are “the single most important organizing principle in criminal law”: see R. v. P. (M.B.), [1994] 1 S.C.R. 555, 113 D.L.R. (4th) 461, at p. 577. Any breach of this provision “undermines the detainee’s right to make a meaningful and informed choice whether to speak, the related right to silence, and, most fundamentally, the protection against testimonial self‑incrimination”: LaFrance at paras. 96-97; see also Grant, at para. 95.
[252] The questioning significantly intrudes on the Applicant’s rights to counsel and right to silence, during a critical time where these rights are arguably most crucial — upon his arrest. It is at this time that the accused is most vulnerable.
[253] BSO Dutta initially failing to give the Applicant his rights to counsel at 23:08 also indicates a further failure, although he did not elicit evidence. The breaches are serious and favour exclusion.
[254] BSO McLaren’s questions of the Applicant were deliberate to get evidence, but pertained to the Applicant’s identity and vehicle ownership, which in these circumstances would attract a relatively lesser degree of privacy, especially in the context of a lawful arrest and search incident to arrest. Overall, this factor still favours exclusion.
[255] Considering society’s interest in adjudication on the merits, the court must step back and consider society’s long-term interests in preserving the repute of the administration of justice. As the Supreme Court of Canada stated in R v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 158:
While disrepute may result from the exclusion of relevant and reliable evidence (Grant, at para. 81), so too might it result from admitting evidence that deprives the accused of a fair hearing or that amounts to “judicial condonation of unacceptable conduct by the investigatory and prosecutorial agencies” (R. v. Collins, [1987] 1 S.C.R. 265, at p. 281). An “adjudication on the merits”, in a rule of law state, presupposes an adjudication grounded in legality and respect for longstanding constitutional norms.
[256] The truth-seeking function of the trial would not be hindered by exclusion of the evidence elicited by BSO McLaren’s questions. The prosecution could still proceed. This evidence is relevant but far from essential to the Crown’s case. It is probative but does not do much to advance the case about the alleged offence of exportation. Overall, this context also favours exclusion.
[257] In the final balancing, there will be a long-term negative impact on the administration of justice if criminal courts routinely accept and use evidence gathered in violation of the rights to counsel and silence. The first and second lines of inquiry support a strong case for exclusion of the evidence. Society’s interest typically favours admission of the evidence, but not in this case where the breaches of such fundamental rights at the time of arrest undermines the legality of longstanding constitutional principles. Balancing all of the factors in the three lines of inquiry, I find that admission of that part of the evidence would bring the administration of justice into disrepute.
Section 9 – Overholding
[258] The Applicant argues that the delay in his release after the police investigation concluded constitutes a violation of his s. 9 Charter rights. He further submits that this is part of a set of Charter breaches that warrant exclusion of all of the evidence including the cellphone data. The Applicant did not seek a stay of proceedings.
[259] The Applicant submits that the Applicant was overheld by the police by being held for a bail hearing. He should have been released from the station.
[260] This argument is primarily based on the position that there was non-compliance with the release from custody provision pursuant to s. 498 of the Code.
The Law
Detention or imprisonment
Charter
[9] Everyone has the right not to be arbitrarily detained or imprisoned.
Section 498 of the Code
[498] (1) Subject to subsection (1.1), if a person has been arrested without warrant for an offence, other than one listed in section 469, and has not been taken before a justice or released from custody under any other provision of this Part, a peace officer shall, as soon as practicable, release the person, if
(a) the peace officer intends to compel the person’s appearance by way of summons;
(b) the peace officer issues an appearance notice to the person; or
(c) the person gives an undertaking to the peace officer.
Person delivered or detained
(1.01) Subsection (1) also applies in respect of a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) or placed in the custody of a peace officer under subsection 163.5(3) of the Customs Act and who is detained in custody for an offence other than one listed in section 469 and who has not been taken before a justice or released from custody under any other provision of this Part.
Exception
(1.1) The peace officer shall not release the person if the peace officer believes, on reasonable grounds,
(a) That it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence,
(iii) prevent the continuation or repetition of the offence or the
commission of another offence, or
(iv) ensure the safety and security of any victim of or witness to the
offence; or
(b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.
When subsections (1) and (1.01) do not apply
(2) Subsections (1) and (1.01) do not apply in respect of a person who has been arrested without warrant by a peace officer for an offence described in subsection 503(3).
Consequences of non-release
(3) A peace officer who has arrested a person without a warrant, or who has been given the custody of a person arrested without a warrant, for an offence described in subsection (1), and who does not release the person from custody as soon as practicable in the manner described in that subsection shall be deemed to be acting lawfully and in the execution of the officer’s duty for the purposes of
(a) any proceedings under this or any other Act of Parliament; or
(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (1).
Principle of restraint
[493.1] In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) or 515(10), as the case may be.
2019, c. 25, s. 210
Section 498 describes the powers of an officer-in-charge to release a person that was arrested by an officer and taken into custody. Subsection 1.1. describes the circumstances that an officer may decide not to release a person on a summons, appearance notice or undertaking.
[261] As a matter of statutory interpretation, s. 498(1.1) of the Code provides that “the peace officer shall not release the person if the peace officer believes, on reasonable grounds, (a)that it is necessary in the public interest that the person be detained in custody or... ”
[262] This subsection, subject to the statutory criteria being met of an officer having reasonable grounds to believe it is necessary in the public interest to hold a person, is a stand-alone basis not to release a person from the station beyond the four non-exhaustive criteria that follow. The inclusion of the word “or” makes this clear.
Findings on Overholding Issue
[263] I find that pursuant to s. 498(1.1)(a) of the Code, Sgt. Dinkha had reasonable grounds to believe that it was necessary in the public interest to hold the Applicant for a bail hearing because of the combination of information that the Applicant was a foreign national without legal status in Canada, having stayed beyond his temporary visa, and because he was charged with indictable offences for allegedly exporting a large quantity of Cannabis.
[264] The objective circumstances support the officer’s belief. Exportation of cannabis is a serious offence that if a person is found guilty may result in a sentence with significant restrictions on liberty, whether actual jail or conditional sentence.
[265] The gravity of the offence is reflected by section 11(3)(a) of the Cannabis Act states that exportation of cannabis prosecuted by indictment carries a maximum punishment of up to 14 years in jail.
[266] There was no evidence the Applicant had roots in the community. His temporary visa was expired. He was placed on an immigration hold. Again, the Applicant did not adduce evidence that indicated the officers were told information that mitigated their concerns.
[267] On this record, those total factors provide objective support that it is necessary in the public interest to detain a person in the Applicant’s situation. The principle of restraint pursuant to s. 493.1 of the Code and R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, at paras. 29 and 67, is to be applied at the bail hearing. Restraint does not override the necessary public interest concerns arising on these facts or overall circumstances pursuant to s. 498(1.1) of the Code.
[268] I further find that the non-exhaustive list “having regard to all the circumstances” for holding a detainee for bail pursuant to s. 498(1.1)(a) of the Code reasonably includes the need to verify a foreign national’s legal status and circumstances in Canada, which may impact their obligations to attend court, respond to the charges, and how to determine appropriate conditions. It also includes the need for a criminal court to be made aware of an immigration hold for a person that has no status in Canada.
[269] A person that is illegally in Canada and charged with serious offences that carry the potential of significant sentences should generally be subject to a hearing where there is judicial release order oversight. This would permit reasonable questions to be fairly determined about the person’s circumstances at the hearing. During submissions, Defence counsel or the Crown were unable to point this court to any case law that dealt with similar facts that supported release by the officer in charge from the station.
[270] I recognize a CBSA or immigration enforcement officer hold is distinct from a police decision to release a person on conditions or hold for a bail hearing under the Code. However, Sgt. Dinkha had a duty to consider that immigration or the CBSA had informed him that they had placed a hold when he was deciding whether it was necessary in the public interest to ensure the Applicant was dealt with responsibly with the full information that could be further examined at court. It is also important contextually to factor the Applicant was arrested late at night and in custody into the early morning hours so his attendance at bail court was imminent. As per the ASF, at 05:20 on August 2, 2022, Immigration Enforcement Officers issued an Order of Detention to Culmer, placing him on an immigration hold. The Applicant appeared in bail court on August 2, 2022. After retaining counsel, he adjourned his case to August 8, 2022. On August 8, he was released on consent with a surety bail.
[271] In my view, a hold followed by a prompt bail hearing appearance was appropriate in the circumstances. As a result, the Applicant’s detention was not arbitrary and there is no s. 9 Charter breach. Although not argued orally, for completeness, based on the same reasons above, I would have also found that the Applicant’s s. 7 Charter rights were not violated either, as he was subject to a valid statutory process that restricts liberty temporarily, subject to a prompt and fair hearing, consistent with the fundamental principles of justice.
CONCLUSION
[272] The Charter motion is granted in part and dismissed in part.
[273] The Applicant’s ss. 8 and 9 Charter rights were not breached in relation to his arrest and search incident to arrest by border services officers.
[274] Border services officers breached the Applicant’s s. 10 Charter rights and failed to give him a caution contrary to s. 7 of the Charter. The evidence elicited from the Applicant from questioning by BSO McLaren is excluded pursuant to s. 24(2) of the Charter.
[275] Border services officers did not violate the Applicant’s s. 10 Charter right to counsel of choice.
[276] The RCMP did not violate the Applicant’s s. 9 Charter rights. The Applicant was not overheld.
Mirza J.
Released: November 21, 2024
COURT FILE NO.: CR-24-129 DATE.: 2024-11-21 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HIS MAJESTY THE KING Crown
- and - John CULMER Applicant CHARTER APPLICATION Mirza J. Released: November 21, 2024