R. v. Parkes, 2025 ONSC 3913

Court File No.: CR-24-088 (Owen Sound)
Date: 2025-06-30
Ontario Superior Court of Justice

Between:
His Majesty the King
-and-
Jeffrey Parkes

Appearances:

• Michelle McKay for the provincial Crown
• Elizabeth Barefoot for the federal Crown
• Peter Kott for Mr. Parkes

Heard: April 3, April 23, May 12 and May 21, 2025

Reasons for Decision in Charter Application
Justice R. Chown

Introduction

[1] At 3:35 a.m. on March 6, 2024, two OPP officers attended at a residence in Sauble Beach in response to a call about a suspicious vehicle idling in the driveway. They found the accused slumped over the steering wheel of a black Ford Escape, unconscious, mucous dangling from his nose into his lap, a lighter in his right hand, a piece of burned tinfoil on his lap. The attending officers called for EMS and attempted to rouse the accused. Once the accused regained awareness and was out of his car, the attending officers arrested the accused for impaired operation / care and control. The arresting officer, PC Chamberlain, did not give the accused the informational component of the right to counsel until about 15 minutes after the arrest. He transported the accused to the Saugeen Shores police station to conduct a drug recognition evaluation (DRE), then to the hospital for a blood sample, then to the Wiarton OPP detachment. The other officer, PC Shapiro, conducted a search of the vehicle incident to arrest. He found drugs and a gun in the Ford Escape within minutes of the accused being taken from the scene. PC Chamberlain was not made aware of the results of the search until about three hours later. At that point, he was en route to the Wiarton OPP detachment with the accused. He did not re-arrest the accused or advise the accused of his increased jeopardy. When they did arrive at the Wiarton OPP detachment, PC Shapiro arrested the accused on additional charges. He re-cautioned the accused and promptly provided the accused with the informational component of the right to counsel.

[2] The accused asserts that police infringed his s. 10(b) right to be informed of his right to counsel on the first arrest because of the 15-minute delay. He also asserts that police infringed his s. 10(a) right to be informed promptly of the reasons for his arrest and detention and his 10(b) right in that he was not informed of his change in jeopardy arising from the results of the search until more than 3½ hours after the gun and drugs were found. He brings this application to exclude the drugs and the gun from evidence.

[3] The timeline of the events in question is not in serious dispute. I will mention the times of various events as needed later in these reasons, but the most important times are:

Time	Event
03:35	PC Chamberlain and PC Shapiro attend scene in separate cruisers.
03:41	PC Chamberlain arrests accused for impaired operation.
03:56*	PC Chamberlain advises accused of his right to counsel.
04:02	Accused departs scene in custody of PC Chamberlain, and they go to Port Elgin for the DRE, then the hospital in Southampton, and then head towards the Wiarton OPP detachment. Accused was put in contact with his counsel of choice at 04:30, before the DRE.
04:03	Almost immediately after PC Chamberlain and the accused depart the scene, PC Shapiro finds gun and drugs in search of accused’s vehicle incident to arrest. No one tells PC Chamberlain the results of PC Shapiro’s search until about 07:00.
07:00	While en route from Southampton hospital to Wiarton OPP detachment, PC Chamberlain receives a call from his sergeant and pulls over. He learns of the results of the search and has grounds for arrest on further charges. He does not re-arrest the accused while at the side of the road.
07:27	Accused arrives at Wiarton OPP detachment.
07:40	PC Shapiro arrests accused for the gun and drug offences arising from the search.
07:42	PC Shapiro gives accused the secondary caution.
07:44	PC Shapiro provides accused with right to counsel.

Some of the times are taken from an in-cruiser camera. Where that is the case, this table shows the time truncated of the seconds. During argument, counsel referred to the delay as being 16 minutes, apparently on the basis that 15 minutes represents a rounding down of the number. Nothing turns on the difference between 15 and 16 minutes.

Issues

[4] The issues are:

1. Did police infringe the accused’s s. 10(b) right to be informed of his right to counsel when he was first arrested?
2. Did police infringe the accused’s s. 10(a) right to be informed promptly of the reasons for his arrest and detention and 10(b) right in that he was not informed of his change in jeopardy?
3. If the answer to either of the foregoing questions is yes, should the evidence arising from the search be excluded?

Issue #1: Did police infringe the accused’s s. 10(b) right to be informed of his right to counsel when he was first arrested?

[5] When they arrived at the scene of the arrest, PC Chamberlain and PC Shapiro parked their cruisers nose to nose partially blocking the driveway and preventing the Ford Escape from leaving. As they approached the Ford Escape, it was running and had the lights on. They observed Mr. Parkes in the state I have already described. They were immediately concerned he may have overdosed. The windows were up, and the driver’s door was locked. Their efforts to wake Mr. Parkes up included knocking on the window and speaking to him through the closed window. Eventually, Mr. Parkes straightened up and looked around the interior of the vehicle, as if regaining his awareness. It took some further time for him to acknowledge the officers and unlock the door. During this time, he looked around the interior of the vehicle without any particular focus, as if he was trying to figure out what was going on. He did not shut off the vehicle despite being asked to do so several times. After multiple requests, he unlocked the vehicle but did not open the door. The officers opened the door. Mr. Parkes’ first verbalizations were just mumbling. He then said he got lost going to his girlfriend’s house. He acknowledged having consumed fentanyl.

[6] When asked if he would have prevented Mr. Parkes from leaving at that point, PC Chamberlain said he would not have risked his own safety to do so but acknowledged that there was little room for the Ford Escape to leave the driveway. PC Shapiro acknowledged that he would have tried to prevent Mr. Parkes from leaving had he sought to do so. I do not know if it is right to say that someone who is unconscious can be considered “detained” within the meaning of s. 10(b). However, it is appropriate to conclude that Mr. Parkes was detained at least from the point in time where he regained awareness.

[7] When asked why he did not read the right to counsel (RTC) to Mr. Parkes while he was still in the Ford Escape, PC Chamberlain said it was because they were still interacting with him. The officers assisted Mr. Parkes out of the vehicle. There was some communication with Mr. Parkes but there was no flow to the conversation. Mr. Parkes was delayed in his responses. He was unsteady on his feet. He was compliant.

The start of a detention is to be determined objectively from the police perspective, not subjectively from the accused’s perspective.

[8] The cross-examinations by Mr. Kott implied that Mr. Parkes was detained from the moment the police parked their cruisers partially blocking the driveway. Mr. Kott relied heavily on R. v. Thompson, 2020 ONCA 264 at paras. 71, 90-96 for several propositions. The case assists in assessing the question of when the detention started.

[9] In Thompson, police had received an anonymous tip about drug dealing from a car, went to the location, and found the appellant’s car parked with its engine running. “Although the police had no basis to believe the car’s occupants were engaged in criminal activity, they parked two police cruisers directly behind it – boxing in the appellant so he could not drive away.” Upon finding evidence of marijuana use, the officers arrested the two occupants for possession of a marijuana roach. They then searched the car incident to arrest and discovered cash and other drugs. “About 21 minutes after having parked behind the appellant, the police advised him of his right to counsel.” A significant issue in that case was when the appellant was detained, the trial judge having found he was not detained when the car was boxed in because he was not even aware of the police cruiser. Jamal J.A., as he then was, found, at para. 5, that “the appellant was arbitrarily detained contrary to s. 9 of the Charter the moment the first police cruiser parked directly behind his car, because at that point the appellant could no longer choose to leave by driving away unless and until the police decided otherwise.” He held that it was an error to focus on the appellant’s state of mind because the correct approach requires the use of an objective standard. The appellant was effectively prevented from leaving when his car was boxed in, so objectively that was the moment of detention.

[10] Jamal J.A. said:

This case underscores each of the three reasons supporting an objective approach: (1) it allows the police to know when the detention occurs, based on their own conduct rather than the subjective perceptions of the accused; (2) it maintains the rule of law, as all claims are subjected to the same standard, avoiding a different result if, for example, one accused saw the police in his rear-view mirror as they obstructed his car, but another did not; and (3) it recognizes that some individuals are incapable of forming subjective perceptions, like the appellant here, who did not appear to immediately perceive when the police obstructed his car.

[11] Applying this, it would seem the detention of Mr. Parkes started when the police blocked the driveway. However, there is no point in reading the RTC to an unconscious person. Focusing on the text of s. 10(b), “Everyone has the right … on detention … to retain and instruct counsel without delay and to be informed of that right,” I conclude that Mr. Parkes was “detained” from the moment his car was boxed in, but there was no “delay” within the meaning of s. 10 while he was unconscious because there was no way to inform him of his right while he was unconscious.

In this case it makes no difference whether the detention started when the cruisers blocked the driveway or when Mr. Parkes was arrested.

[12] An alternate approach would be to say that Mr. Parkes was not detained while he was unconscious because he was objectively not in a position to leave. The three reasons referred to in the above passage from Thompson are straight out of the Supreme Court of Canada decision in R. v. Le, 2019 SCC 34, at para. 115. In Le, at para. 116, the Supreme Court did allow for the possibility that “there may be cases in which the subjective perception of the accused is relevant.” The police did not have difficulty observing that Mr. Parkes was unconscious, and they did not have difficulty determining approximately when he regained awareness. It does not detract from the three reasons behind having an objective test to say that an unconscious person is not detained within the meaning of s. 10. It would be wrong to require or encourage the police to engage in the performative exercise of reading the RTC to an unconscious person.

[13] The result is the same regardless of which analytic approach I apply. Mr. Parkes was read the RTC at 03:56, approximately 15 minutes after he regained adequate awareness to be informed of his rights.

“Without delay” means “immediately.”

[14] “It is now well accepted that s. 10(b) serves to protect the privilege against self-incrimination, a basic tenet of our criminal justice system”: R. v. Prosper, [1994] 3 S.C.R. 236.

[15] The jurisprudence under s. 10(b) has interpreted the phrase “without delay” to mean “immediately” upon detention, and this obligation “is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter”: R. v. Suberu, 2009 SCC 33, at para. 2. As the Supreme Court stated at para. 42 of Suberu, “the words ‘without delay’ mean ‘immediately’ for the purposes of s. 10(b).” The Supreme Court hoped to avoid misunderstanding by imposing the immediacy requirement:

The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police.

[16] Counsel have referred me to numerous reported decisions where courts have grappled with the immediacy requirement. To be sure, there are similarities among arrests, but each case presents a unique set of facts. Several courts have noted that “immediately” does not mean “instantaneously.” However, many cases have found that a delay of only a few minutes that is not grounded in officer or public safety is a breach.

The delay in reading the RTC is not fully justified.

[17] In this case, it is a close call, but I find that the 15-minute delay in reading the RTC is not fully justified. As I will explain, each element of delay is understandable on its own, but the totality of the delay is not justified. The Crown’s position is also undermined by PC Chamberlain’s incorrect understanding of the immediacy requirement.

It was reasonable to wait until Mr. Parkes was in the cruiser to give him the RTC.

[18] PC Chamberlain searched Mr. Parkes’ person incident to arrest. He found a large wad of cash and a wallet stuffed with cash. PC Chamberlain said that some bills fell to the ground. He picked up the dropped bills to prevent them from becoming lost. PC Chamberlain placed the wallet on the roof or hood of the Ford Escape. PC Chamberlain did not think the bundle of cash was secured, although an evidence photo taken later shows what appears to be an elastic around a bundle of cash. The wallet is overstuffed with cash in the photo. PC Shapiro’s evidence was that some of the money from the wallet had fallen to the ground, and that both the wadded cash and the wallet were placed in the backpack at Mr. Parkes’ request. I accept PC Chamberlain’s evidence that that wallet was initially placed on the roof or hood of the Ford Escape, and it was put in the backpack after it was bagged in an evidence bag. As I will explain, this is more consistent with PC Chamberlain’s narration of the video evidence in which he explained how the video shows when he retrieved an evidence bag.

[19] PC Chamberlain said it is his practice not to read the RTC until an accused person is cuffed and in a cruiser. He has adopted this practice based on his training and his belief that accused persons sometimes act out during the RTC. In his view, as a general rule, it is a better practice from an officer safety perspective to wait until the accused is cuffed and lodged in a cruiser before reading the RTC.

[20] I make no comment as to whether this practice is always appropriate. I am not sure this approach is consistent with the guidance of the Supreme Court of Canada in Suberu. However, in this case, I have no hesitation in agreeing that it made sense to get Mr. Parkes out of the Ford Escape, arrest him, search him, and then to wait until Mr. Parkes was lodged in the cruiser before reading him the RTC.

• Mr. Parkes is a large, well-built man.
• PC Chamberlain was a rookie officer. He would have had to unhand Mr. Parkes to remove his notebook and read from the card.
• Mr. Parkes was not fully cooperative. In saying this, I mean that he was not fully cooperative due to his apparent impairment, not because he was non-compliant or behaving antagonistically. In fact, Mr. Parkes was compliant. However, I can readily understand why PC Chamberlain would have prioritized securing Mr. Parkes in the cruiser.

[21] PC Chamberlain put Mr. Parkes in the cruiser at 03:46. PC Chamberlain did not read Mr. Parkes his RTC immediately upon lodging him in the cruiser.

It was reasonable to secure the wallet and cash before reading the RTC.

[22] The in-cruiser video started recording at 03:46 when Mr. Parkes entered the cruiser. The audio began about 30 seconds later. The first recorded audio is of Mr. Parkes asking PC Chamberlain to “please do something” about his tight handcuffs, and PC Chamberlain saying he would be with him in a minute.

[23] PC Chamberlain testified that his plan was to get an evidence bag, secure Mr. Parkes’ property (the wallet and cash) and come back to the cruiser to read Mr. Parkes the RTC. At 03:46, the rear hatch of the cruiser (an SUV) was briefly opened. PC Chamberlain testified that at that point, he was retrieving an evidence bag. Mr. Parkes was cuffed with his arms behind his back. He seemed frustrated. He complained loudly of pain. He was agitated and trying to change position, almost as if to get his arms to his front. He made a “g-r-r-r” sound. At 03:47, Mr. Parkes said to himself, “This is so f---ing tight,” (referring to the handcuffs). PC Chamberlain said he would be with him in a second. He then left Mr. Parkes alone in the cruiser until 03:50 (i.e., for about four minutes). PC Chamberlain was aware of Mr. Parkes’ yelling and went to get assistance from PC Shapiro to loosen the cuffs. PC Chamberlain said that, at that point in his career, he was not comfortable attempting to loosen Mr. Parkes’ cuffs on his own, given that Mr. Parkes seemed “irate.” While “irate” is not the best word to describe Mr. Parkes, he was agitated and complaining. I do not fault PC Chamberlain for wanting PC Shapiro’s assistance. PC Shapiro at that point was speaking to the paramedics.

[24] It was reasonable to secure Mr. Parkes’ wallet and cash before reading Mr. Parkes his RTC. PC Chamberlain would have been subject to criticism if, for instance, the cash in the wallet blew away or was otherwise lost. He would be criticized both for losing evidence and for losing Mr. Parkes’ wallet.

It was reasonable to respond to Mr. Parkes’ complaint about the handcuffs before reading the RTC.

[25] At 03:50, PC Shapiro and PC Chamberlain began loosening Mr. Parkes’ cuffs. During this, PC Shapiro asked Mr. Parkes his name and his date of birth. It took until almost 03:52 to loosen the cuffs. The officers closed the cruiser door again, leaving Mr. Parkes alone in the cruiser for another two minutes approximately.

[26] It was appropriate to respond to Mr. Parkes’ complaint about his handcuffs before reading the RTC. Mr. Parkes was complaining about his cuffs and appeared to be agitated by being restrained by them or by the pain. He likely would not have listened well if he had the RTC read to him while he was in that state. PC Chamberlain was a rookie officer and his decision to seek assistance from PC Shapiro before loosening the cuffs was appropriate. A rookie officer should not have to second-guess whether it is wrong to seek assistance from another officer.

It was reasonable to respond to Mr. Parkes’ inquiries before reading the RTC.

[27] At 03:54, PC Chamberlain opened the cruiser door again. Mr. Parkes immediately asked how his girlfriend could get the vehicle back, and PC Chamberlain responded, “Okay, I’ll tell you all that in a little bit, okay Jeff.” Mr. Parkes persisted. He explained that his girlfriend needed the car to take her kids to school in the morning. PC Chamberlain responded to indicate that he had been in care and control of the vehicle, it was being searched, and it would be impounded. Mr. Parkes asked whether there was any possibility of being released that night, and PC Chamberlain explained that it might be possible, but they had to do some testing first. Mr. Parkes expressed concern about his car being searched. This conversation took about two minutes.

[28] While in some cases it would be appropriate for an officer to interrupt an accused who wants to ask the officer questions, and to read the RTC before letting the accused say anything, in this case I do not think PC Chamberlain should be criticized for not doing so. He was treating Mr. Parkes with dignity by answering his questions. PC Chamberlain was not attempting to elicit information from Mr. Parkes, but rather he was being responsive to Mr. Parkes’ questions and statements. He seemed to be deliberate about being respectful to Mr. Parkes and not to escalate the situation.

[29] At 03:56, PC Chamberlain said he was going to read Mr. Parkes a few things. He then proceeded to read the RTC. He asked Mr. Parkes if he understood, and Mr. Parkes said that he did. He asked Mr. Parkes if he wanted to speak to a lawyer, and Mr. Parkes said that he did.

This is a close call.

[30] As indicated, it is a close call to determine whether there was a s. 10(b) Charter breach based on the 15-minute delay. The video shows that there was roughly six or seven minutes in total where Mr. Parkes is by himself in the back of the cruiser before he was read the RTC: from 03:46 to 03:50 and then from 03:52 to 03:54. During these periods of time, PC Chamberlain was securing the wallet, making arrangements for the DRE, and getting PC Shapiro to come to the cruiser to assist him with loosening the cuffs.

[31] While the various elements of the 15-minute delay time are explained and reasonable, what makes this case difficult is that the overall duration exceeds the immediacy requirement set by the Supreme Court of Canada. Furthermore, PC Chamberlain was not familiar with the immediacy requirement. He said that in his training, the requirement was to read the RTC “as soon as practicable.” This detracts from persuasive force of the various elements of delay I have described.

[32] PC Shapiro articulated the immediacy requirement reasonably well, saying that the RTC is meant to be given as soon as possible, but it can be delayed if there are reasons to deal with safety and evidence.

[33] It also seems that making the arrangements for the DRE could have waited until after the RTC was read. The Crown argues that the DRE must be completed forthwith, and thus it is essential to determine the closest police station that has a DRE officer available and to attend there. The Crown says that getting this process started justifies a small delay in reading the RTC in circumstances where the accused is alone in the back of a cruiser. That is a reasonable argument, but on the other hand, reading the RTC takes only a few minutes and is a Charter right.

[34] On balance, I find that, upon his initial arrest, there was a breach of Mr. Parkes’ right to be informed of his right to counsel without delay.

Issue #2: Did police infringe the accused’s s. 10(a) right to be informed promptly of the reasons for his arrest and detention in that he was not informed of his change in jeopardy?

[35] PC Chamberlain and Mr. Parkes left the scene at about 04:01. PC Shapiro found the gun at about 04:03. PC Chamberlain was not made aware of this until about 07:00. In the meantime, PC Chamberlain had taken Mr. Parkes to the Saugeen Shores police station in Port Elgin for the DRE. They arrived at 04:23. Mr. Parkes was booked and was then put in touch with his counsel of choice, Mr. Raftery, at 04:30. The DRE was completed by a drug evaluation expert with Saugeen Shores Police Service. This was complete by 05:41. Mr. Parkes asked to speak to Mr. Raftery again. He was permitted to do so and spoke to Mr. Raftery at 06:04. Mr. Parkes was provided with privacy for his calls with Mr. Raftery. While waiting in a cell at the station, Mr. Parkes injured or re-injured his finger. EMS personnel treated the bleeding. PC Chamberlain then took Mr. Parkes to the hospital in Southampton to have a blood sample taken. This was completed and they left the hospital at 06:50. PC Chamberlain intended to take Mr. Parkes to the Wiarton OPP detachment, to fingerprint him, and then to release him on a recognizance. While en route, PC Chamberlain received a call on his cell phone from his sergeant, or an indication to call his sergeant. He pulled over and spoke to his sergeant. This was at about 07:00. At that point, PC Chamberlain learned that a gun and drugs had been found during the search. It was apparent to him that his sergeant had assumed he was already aware of this. PC Chamberlain acknowledged that at that point he had grounds to arrest Mr. Parkes for additional charges. He agreed that Mr. Parkes faced much more serious jeopardy at that point because of the gun and drug charges. However, PC Chamberlain elected not to re-arrest Mr. Parkes and re-read the RTC at that point. He testified that he was concerned about how Mr. Parkes would react. He said that if Mr. Parkes became irate and started to self-harm, it would create a difficult circumstance for him to manage on his own. He thought it would be better to wait until they got to the detachment. PC Chamberlain’s testimony that he was concerned that Mr. Parkes might begin to self-harm was not supported by other evidence. However, that part of his testimony was not seriously challenged by the defence.

Mr. Parkes should have been re-cautioned when his jeopardy increased.

[36] I found the recent case of R. v. Alipourobati, 2025 ONCA 64 to be instructive. In that case, police stopped the accused and found he was a suspended driver. There was a delay while another officer attended to administer the oral fluid test for THC. This indicated that the accused exceeded the limit. A subsequent search of the car revealed a loaded handgun in a satchel between the passenger and driver seat. The trial judge, affirmed by the Court of Appeal, said that the appellant was entitled to be re-cautioned because the gun significantly increased his jeopardy. “However, events outside of the police’s control, such as the appellant’s mother arriving and the dog running outside, turned the arrest into a dynamic situation that delayed giving the informational component” for a total of 26 minutes. The trial judge found “modest breaches” of s. 7 for lost evidence and of s. 10(b) because of the 26-minute delay but concluded after a s. 24(2) analysis that the gun should nevertheless be admitted. The Court of Appeal upheld the trial judge’s rulings including his application of the Grant factors.

[37] Similarly, Mr. Parkes was entitled to be re-cautioned once the gun and drugs were found. I agree with the Crown that they did not have to re-caution Mr. Parkes until the search was complete, but the search was complete by 04:50. That was still about an hour and a half before PC Chamberlain and Mr. Parkes left the Saugeen Shores police station, over two hours before PC Chamberlain was informed of the findings of the search, and over 2½ hours before Mr. Parkes was charged on the additional charges and re-cautioned.

[38] PC Shapiro and the sergeant should have advised PC Chamberlain of Mr. Parkes’ change in jeopardy in a timely way. The argument that it would not have been appropriate to interrupt the DRE would be more persuasive if Sgt. Starzecki had testified as to his reasoning. However, Sgt. Starzecki did not testify. In any event, the DRE testing was completed at 05:41.

[39] Further, based on PC Chamberlain’s evidence, I have the impression that Sgt. Starzecki may not have appreciated that PC Chamberlain remained unaware of the results of the search for so long. I would not criticize PC Chamberlain for his decision not to re-arrest Mr. Parkes at the side of the road when he learned of the issue. I did not find the concern about Mr. Parkes being a risk of self-harm persuasive, but the list of charges was extensive, PC Chamberlain was inexperienced, and it is understandable that he would not want to arrest on such serious charges on his own. However, Sgt. Starzecki could have informed PC Chamberlain of the additional charges and the need to re-arrest Mr. Parkes while PC Chamberlain was still at the Saugeen Shores Police station in Port Elgin. PC Chamberlain would have been able to obtain the assistance of other officers at that point.

[40] I find that the delay of 2½ hours was a breach of Mr. Parkes’ s. 10(a) and 10(b) rights. This breach arose from delayed communication to PC Chamberlain.

It is not necessary to decide the Crown’s argument that Mr. Parkes was able “to meaningfully exercise the right to counsel” on his first two calls to counsel.

[41] The Court of Appeal also dealt with a “change in jeopardy” case in R. v. Roberts, 2018 ONCA 411. The court explained, at para. 78, that detainees do not need to be told the technical charges they may ultimately face. “A person will be properly advised of the reason for their detention if they are given information that is sufficiently clear and simple to enable them to understand the reason for their detention and the extent of their jeopardy.” The accused person must be able “to meaningfully exercise the right to counsel.”

[42] Ms. Barefoot submitted that Mr. Parkes must have known of the gun and drugs in the Ford Escape. He seemed concerned about the police searching the vehicle. He had two calls with his counsel of choice, shortly before and shortly after the DRE. The Crown’s position is that Mr. Parkes would have been able to address the gun issue with counsel, so he was able to meaningfully exercise his right to counsel even before he was told police found the gun and drugs in the Ford Escape.

[43] That argument does not sit right with me because it effectively invites me to decide an issue for trial (knowledge of the gun) before the trial. Further, the Crown has taken the position that it will not be relying on any of Mr. Parkes’ utterances prior to being read the RTC. I appreciate that the onus may be different in the application than at trial, so there may be something to the argument. However, I specifically decline to rest my decision on this basis. Because of my decision on the Grant analysis, below, it is not necessary to determine whether Mr. Parkes was likely able to address his potential jeopardy for the gun and drugs in his first two calls to counsel, and I decline to make such a finding, one way or the other, at this time.

Issue #3: Should the evidence arising from the search be excluded?

[44] I now turn to the application of s. 24(2) of the Charter to the seizure of the drugs and gun. I am required to apply the factors set out in R. v. Grant, 2009 SCC 32, at para. 71:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[45] When balancing the Grant factors, “if the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence [citations omitted]”: R. v. McGuffie, 2016 ONCA 365, para. 63, per Doherty J.A.

[46] “The overriding consideration in any s. 24(2) analysis is whether admitting the evidence would bring the administration of justice into disrepute”: R. v. Whittaker, 2024 ONCA 182, para. 60.

The Charter-infringing state conduct was not serious.

[47] The initial s. 10(b) breach was not serious. As I have indicated, this was a close call as to whether there was even a breach, because the delay in providing the RTC is largely explained. The delay was not for long. It is not argued that there was an unreasonable delay in providing Mr. Parkes with the opportunity to speak to his lawyer once this was possible to provide him some privacy for the call. There was no bad faith or hidden agenda behind the delay. It was primarily a matter of an inexperienced officer not appreciating the immediacy requirement the Supreme Court of Canada has mandated.

[48] During his exchanges with Mr. Parkes, PC Chamberlain spoke in a kind, reassuring voice. He was respectful to Mr. Parkes. PC Chamberlain treated Mr. Parkes with dignity and seemed to be trying to diffuse the situation. He addressed Mr. Parkes’ discomfort with the cuffs promptly in all of the circumstances. It is unlikely Mr. Parkes would have paid attention to the RTC prior to the cuffs being loosened. PC Chamberlain did nothing that could in the slightest degree be classified as an intentional abuse of the position of power that he had over Mr. Parkes. Based on the video and bearing in mind his level of experience and his explanations, apart from the failure to read the RTC, PC Chamberlain’s interaction with Mr. Parkes was exemplary. In this case, the s. 10(b) breach upon Mr. Parkes’ initial arrest was not strategic, nor was it serious or systemic.

[49] The failure to advise of the increased jeopardy was also not serious. It is explained by delayed communication. It was not deliberate. Again, there was no bad faith or hidden agenda behind the delay. The delay was not motivated to gather additional information or to unnerve or to in any way disrespect Mr. Parkes or his Charter rights. It was an oversight.

[50] Neither the initial s. 10(b) breach nor the 10(a) and 10(b) breaches arising from the change in jeopardy were strategic. There was no deliberate police practice of the sort described in R. v. Rover, 2018 ONCA 745. There was poor or delayed communication to PC Chamberlain.

[51] The “seriousness” element of the Grant test weighs only very lightly in favour of exclusion.

The impact of the breach on the Charter-protected interests of the accused.

[52] I turn now to the third branch of the Grant test, the impact of the breach on the Charter-protected interests of the accused. Prior to his arrest, Mr. Parkes uttered that he had used fentanyl. However, there was ample evidence of impairment and ample grounds for arrest, even without that utterance. The Crown does not seek to rely on that utterance.

[53] There is no evidence that Mr. Parkes uttered anything material after that, and again, the Crown does not seek to rely on any of Mr. Parkes’ utterances, including his utterances made before being advised of the RTC.

[54] “The right to counsel ‘is directed at assisting detainees with regaining their liberty and protecting them against the risk of involuntary self-incrimination.’ That interest is not impacted where, as here, the appellant did not incriminate himself after s. 10(b) was breached and there is no suggestion he would have regained his liberty earlier…”: R. v. Truong, 2025 ONCA 69, para. 55.

[55] Unlike in R. v. Samuels, 2024 ONCA 786, para. 68, Mr. Parkes was not held “incommunicado.” Further, there is no evidence that he suffered significant psychological distress from having been held incommunicado after his arrest: Samuels, at para. 68. This case is not comparable to the 30-hour delay in R. v. Jarrett, 2021 ONCA 758, paras. 52-55, or the six-hour delay in Rover.

The impact of the breach on Mr. Parkes’ Charter-protected interests was minimal.

[56] The breach of Mr. Parkes’ s. 10 right did not lead to the finding of the drugs and gun. While a causal relationship between the breach and the evidence need not exist, its absence is a factor in the s. 24(2) analysis that weighs against the exclusion of evidence resulting from a s. 10(b) breach: R. v. Lenhardt, 2019 ONCA 416, para. 11; R. v. Do, 2019 ONCA 482, para. 12.

Society’s interest in the adjudication of the case on its merits is strong.

[57] As evidence, the drugs and gun are real and reliable. Society has an interest in a trial on the merits, which favours the admission of the drugs and gun.

Balancing the factors does not favour exclusion.

[58] The first two Grant factors weigh only lightly in favour of exclusion. The third factor weights strongly against exclusion. I conclude that admitting the evidence would not bring the administration of justice into disrepute. I therefore dismiss the defence application.

[59] Mr. Kott submitted that it is not an “all or nothing” circumstance. He asked me to consider excluding only the drugs but not the gun. I see no valid or reasonable basis to take that approach. I do not think it brings the administration into disrepute to allow all of the evidence in.

[60] I do not rule out the possibility that the Charter breaches could be considered as a factor in determining sentence if Mr. Parkes is ultimately convicted. He is not precluded from raising arguments to this effect.

[61] In result, the application is dismissed.

Chown J.

Released: June 30, 2025