Court File and Parties

Court File No.: CR-24-90000314-0000
Date: 2025-01-24
Ontario Superior Court of Justice

Between:
His Majesty the King – and – Tenzin Palden

Appearances:
Amanda Webb and Elisa Mastrorillo, for the Crown
Leora Shemesh, for Tenzin Palden

Heard at Toronto: November 26, 27, 28, and 29, 2024

Judge: J.K. Penman

A. Overview

[1] Tenzin Palden was arrested on August 21, 2023, for possession for the purpose of trafficking 34.76 kilograms of cocaine. Mr. Palden’s arrest took place after police believed he had met with an individual for the purpose of obtaining a large quantity of drugs.

[2] Mr. Palden argues that the evidence of the cocaine should be excluded pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms (the “Charter”), based on the following alleged Charter violations:

• That the police did not have the requisite grounds to arrest Mr. Palden which violated his s. 9 Charter rights, and that the subsequent search of his vehicle was therefore unlawful and in violation of his s. 8 Charter rights;
• That Mr. Palden’s s. 7 Charter rights were violated when the police did not turn their Body-Worn Cameras (BWC) on for a period of nine minutes; and
• That Mr. Palden’s s. 10(b) Charter rights were violated when the police held off providing him access to duty counsel.

[3] For the following reasons I am not satisfied that there was a breach of Mr. Palden’s ss. 8 and 9 rights. There was, however, a breach of his s. 10(b) right to counsel. I decline to exclude the evidence under s. 24(2).

B. Analysis

Sections 8 and 9

Did the police have the requisite grounds to arrest Mr. Palden?

[4] Mr. Palden argues that the police did not have sufficient objective grounds to arrest Mr. Palden, and therefore violated his s. 9 Charter right. As a result, the subsequent search of his vehicle was without a warrant, unlawful and a violation of Mr. Palden’s s. 8 Charter rights.

[5] A police officer must subjectively have reasonable and probable grounds on which to base an arrest. Those grounds must be justified from an objective point of view: R. v. Beaver, 2022 SCC 54, para 72; R. v. Storrey, [1990] 1 S.C.R. 241.

[6] Determining whether reasonable and probable grounds exist is a fact-based exercise dependent on the totality of the circumstances: R. v. Bush, 2010 ONCA 554, para 54; R. v. Fyfe, 2023 ONCA 715, paras 55-63. It is an error to look at each factor in isolation.

[7] The major project drug squad investigation into Project Finito that led to Mr. Palden’s arrest began with confidential source information that one Lucho Loder was trafficking drugs at the kilogram level. Although Mr. Palden was unknown to the police at the time, the events leading to his arrest are necessary context for assessing the reasonableness of the grounds for his arrest.

[8] During the investigation in August of 2023 police observed Mr. Loder retrieving and exchanging bins, bags and suitcases with other individuals including Camron Longmore, Bryan Sherritt and Shane Smith-Thomas. These observations led to the arrest of Mr. Palden on August 21, 2023, after it was believed he had met with Mr. Longmore for the purpose of obtaining a large quantity of drugs.

i) August 3 Observations

[9] On August 3rd police observed Mr. Loder driving out of a garage in a black Acura at a residence at 9 Caseley Way in Markham. He was followed and observed attending Kennedy Commons Plaza in Toronto. He parked in the rear laneway behind a PetSmart with his car reversed into a parking spot. Two minutes later a black BMW and a Chevy Tahoe SUV arrived and parked on each side of Mr. Loder’s vehicle, also with their trunks against the wall. Police observed the drivers of the three vehicles get out of their cars and move large, heavy items between the cars, including a large black bin with a yellow lid from Mr. Loder’s front passenger seat. The drivers of those vehicles were later identified as Camron Longmore (Chevy Tahoe) and Shane Smith-Thomas (BMW).

[10] Mr. Longmore and Mr. Smith-Thomas then drove to the main parking lot of the plaza. They parked beside each other and were observed transferring three duffle bags from Mr. Longmore’s vehicle to Mr. Smith-Thomas’ vehicle. A large hockey bag and a large black bag were transferred from Mr. Smith Thomas’ vehicle to Mr. Longmore’s vehicle. A large black bin with a yellow lid could be seen in the back of the Chevy Tahoe. This exchange was captured on video.

[11] Mr. Loder was followed back to the Caseley Way residence where he again parked in the garage. He later left that residence and was followed to an underground parking lot at 180 Fairview Mall Drive, where he met with Mr. Longmore and Mr. Smith-Thomas who were in Mr. Smith-Thomas’ vehicle.

ii) August 10 Observations

[12] On August 10, police learned through a public access camera that Mr. Loder was observed attending 9 Caseley Way which the police now believed was a “stash house”. Officers observed Mr. Loder leave from the parking garage in a black Acura and head to an industrial area in Vaughan. While on route, Detective Teixeira pulled up beside Mr. Loder and was able to observe a black bin with a yellow lid on the front passenger seat and the cargo area full of duffle bags.

[13] Mr. Loder drove to 155 Winges Road in Vaughan. He sat idle until Mr. Longmore arrived in a white Chevy work van and parked directly beside Mr. Loder. The doors to both vehicles were briefly opened and an exchange took place. Mr. Loder left shortly afterwards. Mr. Longmore remained and shortly afterwards an unknown male arrived. This male was later identified as Bryan Sherritt. Mr. Longmore transferred a black bin with a yellow lid to Mr. Sherritt. This exchange was very brief and captured on video. Mr. Sherritt was then followed to 130 Canon Jackson Road where he was seen using a dolly and rolling the bin into the lobby of the building.

iii) August 15 Observations

[14] On August 15, Mr. Loder was followed to the area of Index Road in Toronto. A U-Haul driven by Abubakar Mohamed arrived and parked trunk to trunk with Mr. Loder. Mr. Loder and Mr. Mohamed transferred six black bins with yellow lids from the U-Haul into Mr. Loder’s vehicle. This exchange was captured on video. Mr. Mohamed was followed in the U-Haul to an Access Storage Facility at 137 Queens Plate Drive.

iv) August 21 Observations and Arrest of Mr. Palden

[15] Mr. Loder’s vehicle was tracked to a plaza across the street from the Access Storage unit at 137 Queens Plate Drive. Officers believed that Mr. Loder had just picked up controlled substances from the storage unit. Police picked up their surveillance of Mr. Loder and followed him to 11 Progress Avenue, which is an industrial plaza across from Kennedy Commons Plaza. Mr. Longmore arrived and three black bins with yellow lids and two bags were transferred into Mr. Longmore’s vehicle. This exchange was captured on video.

[16] Mr. Longmore then drove to the north end of Kennedy Commons Plaza and met with Mr. Sherritt. One bin was transferred to Mr. Sherritt’s vehicle. Although Detective Constable Chant wanted to arrest Mr. Longmore and Mr. Sherritt at this point, not enough officers were in the immediate area of Mr. Longmore and Mr. Sherritt to safely effect the arrest. It was decided that when Mr. Longmore next engaged in what police believed to be another drug transaction, there would be a takedown.

[17] Mr. Longmore was then observed driving around the area of the Kennedy Commons Plaza with no discernible destination. Detective Teixeira then observed Mr. Longmore pull into a laneway leading to the back of a Metro grocery store, followed by a RAV4 later learned to be driven by Mr. Palden. The two vehicles proceeded in tandem and were observed reversing into parking spots along the back of the building. The vehicles were out of view and the officers were not able to see if a transfer of bins took place.

[18] Detective Constable Chant called the takedown when he heard that Mr. Longmore and the RAV4 were making their way into the rear laneway and had reversed with their trunks towards the wall of the Metro. Approximately 30 seconds later as Detective Teixeira made his way into the rear laneway, the RAV4 was observed leaving and heading back towards Kennedy Avenue. Officers boxed in the RAV4, and Mr. Palden was arrested.

[19] Detective Constable Chant testified that the grounds for arresting Mr. Palden came from the totality of the circumstances of the investigation beginning on August 3. While the RAV4 was not a vehicle they were aware of, Detective Constable Chant was confident that the driver of the RAV4 was meeting with Mr. Longmore for the purpose of engaging in a drug transaction. I am satisfied that Detective Constable Chant had an honestly held belief that Mr. Longmore and the driver of the RAV4 were engaged in a drug transaction. This belief was also held by Detective Teixeira and Detective Constable Metzger.

[20] The question is whether these grounds are justifiable from an objective viewpoint. Counsel for Mr. Palden argued that while there may have been a basis to detain and search Mr. Longmore, this does not in and of itself provide reasonable grounds to arrest Mr. Palden. Counsel argues that Mr. Palden was never a target of the investigation, he was unknown, his vehicle was unknown, and the length of time police were even aware of Mr. Palden’s vehicle was no more than a minute.

[21] While all of this is true, an objective assessment must be based on the totality of the circumstances known to Detective Constable Chant, including the dynamics of the situation as seen from the perspective of a reasonable person with the same knowledge, training, and experience as Detective Constable Chant: Beaver, at para. 72.

[22] Detective Constable Chant is a highly experienced drug officer having been a member of the Toronto Police Service (the “TPS”) since 1989 and having been involved in hundreds of drug investigations at the street and wholesale level. He was also involved in several recent high level drug trafficking operations with similar modus operandi to Project Finito, specifically the use of black bins with yellow lids among others.

[23] The totality of the circumstances known to Detective Constable Chant included the following:

• Information that Mr. Loder was involved in the trafficking and distribution of illicit substances;
• Observations of Mr. Loder receiving and then distributing large bags and black bins with yellow lids to Mr. Longmore, Mr. Smith-Thomas and Mr. Sherritt in the weeks leading to the takedown;
• Mr. Loder wearing gloves during the exchanges and immediately taking them off;
• Prior use by Mr. Loder and Mr. Longmore of the Kennedy Commons Plaza for an exchange of black bins;
• Several of the exchanges taking place in secluded locations;
• All the meetings and exchanges occurring very quickly;
• Shortly before the takedown, Mr. Longmore receiving three black bins with lids from Mr. Loder, and then meeting with and transferring one of those bins to Mr. Sherritt, all in the Kennedy Commons Plaza area; and
• Minutes later Mr. Longmore and the RAV4 driven by Mr. Palden driving in tandem in the rear laneway, and reversing towards the building wall, with Mr. Palden coming back out of the laneway less than a minute later.

[24] In my view, this constellation of factors amounts to more than a “hunch” or suspicion that what was taking place was a drug transaction. While I appreciate that Mr. Palden was unknown, that fact cannot be looked at in isolation from the entirety of the information known to Detective Chant and the other officers at the time: Fyfe, at paras. 55-63. The context of the Project Finito investigation, known behaviour in general of drug traffickers, along with the behaviour of Mr. Loder and Mr. Longmore all inform the reasonableness of Detective Chant’s belief.

[25] Counsel argued that the evidence of Mr. Palden driving down the rear laneway of the Metro is consistent with him being an employee of the Metro. This may be so, but reasonable grounds can co-exist with exculpatory possibilities. To hold otherwise would be to insist on a standard of proof beyond a reasonable doubt. The applicable standard of reasonable and probable grounds only requires a “reasonable” or “credibly-based” probability, a standard which is “even below the balance of probabilities”: R. v. Ilia, 2023 ONCA 75, para 17.

[26] The case of R. v. Ha, 2018 ABCA 233, is instructive on this point, and factually similar to this case. A police officer believed he had witnessed a drug transaction between two vehicles in an isolated area of a parking lot, and that he had grounds to arrest both individuals. The officer ran the license plates, and a superior officer advised that one of the names attached to a plate (the accused’s name) was a high-level drug dealer if he was an Asian man with a cleft palate.

[27] The defence argued that there were no reasonable and probable grounds for arrest, because it is common for persons other than the registered owner to be driving a vehicle. The court found that while that may be so, the possibility, or even probability that someone else may have been driving did not preclude the formation of “reasonable grounds to believe” that it was Mr. Ha in the parking lot. The knowledge of the police team was relevant in determining whether there were reasonable grounds for the arrest: see paras. 34, 82 and 85.

[28] While it is possible that the behaviour of Mr. Palden was consistent with being an employee of the Metro, this does not take away from the reasonableness of the belief that what in fact was taking place was a drug transaction.

[29] I am satisfied that Detective Constable Chant had subjective grounds to arrest Mr. Palden, and that these grounds were objectively justified. His arrest was therefore lawful and not in violation of s. 9 of the Charter.

[30] Given my conclusion that there were reasonable grounds to arrest Mr. Palden, the subsequent search of his vehicle was properly incident to arrest and not a violation of Mr. Palden’s s. 8 Charter rights.

C. Section 7

Did the police violate Mr. Palden’s s. 7 rights by keeping their BWCs off?

[31] Counsel for Mr. Palden argues that his s. 7 Charter rights were violated when Officers Dean and Thomas kept their BWC off for a period of nine minutes, because it was a deliberate, calculated attempt by the drug squad to subvert TPS policy, and intentionally created an incomplete record of the police conduct. For the following reasons, I am not persuaded by this submission.

[32] When Officers Thomas and Dean arrived on scene, they were immediately directed by Detective Duffus to not turn on their BWCs until they had Mr. Palden in their custody, and they were able to move him to their scout car away from the location of the takedown. Officers Thomas and Dean, both very junior officers, complied with this as Detective Duffus was a superior officer and they were aware of the BWC policy permitting this direction.

[33] The TPS BWC policy requires that officers are to record, among other things, any contact with a member of the public, a statement that would normally be taken in the field, and any interactions with persons in custody. The TPS BWC policy also provides that a BWC can be stopped, muted, or repositioned if “directed to do so by a supervisor applying the criteria in Items 5, 6, or 7 of this procedure.” The case before this court involves a direction to not turn the cameras on, but in my view the spirit of the policy exception is the same.

[34] The officers stood by for approximately nine minutes with their BWC off until Mr. Palden was turned over to them. Once Mr. Palden was turned over to them, the officers both turned their cameras on, and Officer Dean read Mr. Palden his rights to counsel and caution again. The entirety of the police interaction with Mr. Palden from that point on was video and audio recorded.

[35] Mr. Palden relies on the case of R. v. Azfar, 2023 ONCJ 241. In that case the trial judge found that the officers muted their cameras specifically for the purpose of withholding from the defence information about the officers’ observations of Mr. Azfar, and the extent to which their observations did or did not provide a basis for an Approved Screening Device demand. The trial judge found that this constituted part of the investigation and consisted of information that otherwise would have been required to be disclosed to the defence. In those circumstances the court found that this was a breach of s. 7: see paras. 22, 25 and 29.

[36] The facts in this case are distinguishable from Azfar. The TPS officers who were involved in the takedown and arrest of Mr. Palden were all from the Major Project section of the drug squad. They were in the middle of a surveillance operation and all of them were “covert” in that they were in plainclothes and in unmarked vehicles. Some of the officers also worked undercover albeit not on this project. Detective Duffus and Teixeira both testified that the direction to the uniformed officers to not turn on the BWC was for the purpose of protecting the identities of the officers and their vehicles as it could otherwise compromise their safety in further investigations. There had also been a collision between Mr. Longmore’s vehicle and three unmarked police vehicles, and that accident scene was close to where the takedown of Mr. Palden occurred.

[37] Counsel argued that, in effect, the drug squad has a policy to direct uniformed officers to either turn off or not turn on their body-worn cameras. The evidence from the officers was that it depends on the circumstances. I accept Detective Teixeira and Duffus’ evidence that some situations are less dynamic, and an instruction can be given to ensure the “covert” officers are not recorded.

[38] I do agree, however, that it is a concern that drug squad officers do not wear or have BWC at all. I had no evidence as to whether that is because of TPS policy, or a decision made by the drug squad. I appreciate that “covert” officers cannot always be wearing a BWC device as it would defeat the purpose of being covert. But certain circumstances could allow for audio recording, at minimum.

[39] While I accept that the sole purpose of keeping the cameras turned off in this case was to protect the identities of the officers and their vehicles, no one turned their minds to either turning off the video and leaving the audio on or simply editing the video. There was no reason the video recording could not have been turned off which would still allow any interactions to be audio recorded.

[40] Having said that, while Detective Duffus did not turn his mind to possible editing of the footage, or just turning off the video, I accept that his instruction that the cameras be turned on once Mr. Palden was away from the location of the takedown was an attempt to limit the length of time the cameras would be off.

[41] In the circumstances of this case, I am satisfied that this failure to create a recording for nine minutes did not result in lost evidence or an abuse of process. In general, a failure by police to create a recording does not constitute lost evidence: R. v. Virk, 2021 ONSC 3750, para 22. Courts have consistently concluded that absent evidence of a deliberate, bad faith choice to avoid gathering evidence, failure to activate a camera or other recording device does not amount to a breach of the Charter: R. v. Sherif, 2024 ONSC 4098, para 86, relying on R. v. Kurmoza, 2017 ONCJ 139, para 17, and R. v. McCoy, 2016 ABQB 240.

[42] I am also not satisfied that the TPS BWC Policy creates a constitutionally protected right to an audio and video recording. In my view, a police directive requiring that police record their interactions is an internal one, not a statutory obligation and does not elevate the creation of a BWC recording to a constitutionally protected right: Kurmoza, at para. 17; R. v. Deesasan, 2018 ONSC 4180, paras 34-35; and Sherif, at para. 95.

[43] The BWCs were kept off for a period of nine minutes during which the officers had no contact with Mr. Palden, were not engaged with members of the public, and did not have any interactions or discussions with the officers on the drug squad. The arrest of Mr. Palden and the search of his vehicle had already occurred, and the officers were simply standing by waiting to take custody of Mr. Palden for the purpose of transport to the division. There was no evidence to suggest that anything took place during those nine minutes which constituted part of the investigation and would have been required to be disclosed to the defence.

[44] In these circumstances Officers Dean and Thomas not turning on their BWCs does not constitute a violation of Mr. Palden’s s. 7 rights.

D. Section 10

Did the police violate Mr. Palden’s s. 10(b) rights when they held off providing access to duty counsel?

[45] Counsel for Mr. Palden argues that there was no basis to suspend Mr. Palden’s right to counsel, and that steps were not taken to minimize or inform Mr. Palden of the delay.

[46] Section 10(b) of the Charter obliges the police to advise a detained person of the right to speak with counsel without delay, and if the detained person exercises that right, the police must immediately provide the detainee with a reasonable opportunity to speak to counsel. This right exists because those who are arrested or detained are apt to require immediate legal advice that they cannot access without help because of the detention: R. v. Noel, 2019 ONCA 860, para 23; R. v. Rover, 2018 ONCA 745, para 34, and R. v. Suberu, 2009 SCC 33, paras 38-41.

[47] There may be practical impediments to police ability to facilitate access to counsel: R. v. Desilva, 2022 ONCA 879, para 74; Rover, at paras. 26-27. Delays must be reasonably necessary and assessed on a case-by-case basis considering whether police made efforts to facilitate access: Desilva, at paras. 73-75.

[48] There are also some recognized circumstances that can justify a delay in providing a detainee access to counsel, often relating to police or public safety or the preservation of evidence, but the police must turn their minds to the specific circumstances of the case: Rover, at paras. 26-27; R. v. Keshavarz, 2022 ONCA 312, paras 73-75.

[49] Mr. Palden was arrested at 6:50pm by Officers Metzger and Chant. Officer Metzger read Mr. Palden his rights to counsel. Mr. Palden indicated that he understood but that he did not have a lawyer. Officer Metzger advised Mr. Palden of the availability of duty counsel but did not ask him if he wished to speak with duty counsel because she was not able to facilitate access at that time. Officer Metzger was questioned on whether she proceeded to ask Mr. Palden “how long have you been doing this? How much is in the bin? Don’t lie to me”. Officer Metzger testified that she did not recall saying those things but acknowledged that she might have. While there is no evidence that she did say those things, that it is a possibility is concerning.

[50] Detective Teixeira testified that he directed officers to hold off providing Mr. Palden with his call to duty counsel because the investigation was ongoing, Mr. Sherritt was outstanding and in possession of what was believed to be a significant quantity of cocaine. Search warrants were also being sought for Mr. Longmore’s residence, Mr. Sherritt’s residence and a residence associated with Mr. Palden. As part of that decision, it was decided that Mr. Palden would be provided with his call to duty counsel once the perimeters of those locations were secured, and Mr. Sherritt was arrested.

[51] The timeline as it developed was as follows:

• At 6:50pm, Mr. Palden is arrested and advised of the reason for his arrest and provided with his rights to counsel;
• At 7:30pm, Mr. Palden is re-advised of the reason for his arrest, rights to counsel and caution, and requests to speak with duty counsel;
• At 7:50pm, Mr. Palden and the transport officers arrive at 41 Division and standby in a police vehicle while Mr. Longmore is paraded;
• At 8:30pm, Mr. Palden is paraded at 41 Division;
• At 8:45pm, the booking/parade is complete, and Mr. Palden is placed in cell #6;
• At 9:05pm, Mr. Sherritt is arrested;
• At 9:16pm, Mr. Sherritt’s home is secured;
• At 9:29pm, duty counsel is called, but does not answer, and a voicemail is left; and
• At 10:10pm, Mr. Palden speaks to duty counsel Leclair.

[52] At no time was Mr. Palden told there was going to be a delay in providing him his call to duty counsel.

[53] There is no question that the suspension of the right to counsel is an exceptional step and that a bald assertion of “destruction of evidence” will not justify a suspension: Rover, at para. 27; R. v. Wu, 2017 ONSC 1003, para 78.

[54] I am satisfied that Detective Teixeira had case-specific reasons to delay access to counsel for Mr. Palden. At the time this decision was made police had confirmed that a black bin was in Mr. Palden’s vehicle and that it contained a significant quantity of cocaine. Mr. Sherritt was outstanding, and the officers knew he was in possession of a large black bin containing cocaine. The police were in possession of addresses associated to Mr. Longmore, Mr. Sherritt and Mr. Palden. While the warrant to search Mr. Palden’s residence was denied, I understand that the warrant for Mr. Sherritt’s residence was authorized. This was a large-scale operation involving the wholesale distribution of drugs, and Detective Teixeira wanted to seize the drugs that were outstanding.

[55] Counsel argued that Detective Teixeira’s evidence was not credible or reliable on this point, as he was unable to provide specifics of who went to the other addresses or when those perimeters were secured. While it is true Detective Teixeira did not have notes with respect to the residences of Mr. Longmore and Mr. Palden, officers did attend Mr. Sherritt’s residence to secure the perimeter and effect his arrest. I also accept that the situation was a dynamic one with numerous officers, two accused, and multiple warrants being sought.

[56] I am satisfied that the decision to hold off providing Mr. Palden with his call to counsel was reasonable given the investigative steps that were underway, and the risk that information would inadvertently “get out” and undermine or risk the operation and the safety of the public and the officers.

[57] In my view, Detective Teixeira also attempted to mitigate this delay by directing that Mr. Palden’s call be provided not when the warrants were granted and executed, but at an earlier point once the perimeters were secured and Mr. Sherritt arrested.

[58] This contrasts with the decision in R. v. Samuels, 2024 ONCA 786, where a decision was made by the police to not apply for a search warrant until after the accused had been arrested to avoid having to use the Emergency Task Force to enter the apartment. The court found there was no legal or practical impediment to the police obtaining a search warrant before the appellant was arrested, either the day before and requesting an extended execution period, or by applying for it on the morning before the appellant's arrest. In this case, the decision to arrest Mr. Longmore and Mr. Palden was a spontaneous one triggered by the police observations that day.

[59] The total time from Mr. Palden’s arrest at 6:50pm until a call was made to duty counsel was 2 hours and 39 minutes. Given the practical issues related to having Mr. Palden transported to and booked at the station, the earliest time at which Mr. Palden could have been provided access to counsel was at 8:45pm. Mr. Sherritt was arrested at 9:05pm and a call to duty counsel was made at 9:29pm, 24 minutes later.

[60] There is no doubt that access to counsel provides a “lifeline” for detained persons which includes a psychological component that cannot be understated. In this case, the delay in providing Mr. Palden his call to duty counsel was justified up until the time of Mr. Sherritt’s arrest. Although the delay until duty counsel was called was only 24 minutes long, no one ever spoke with Mr. Palden to tell him there was going to be a delay, why there was a delay or that duty counsel had in fact been called. Duty counsel did not end up calling back until 10:10pm. I do note there was no attempt to elicit any statement from Mr. Palden prior to his call with duty counsel.

[61] In my view, the time when police should have told Mr. Palden there was going to be a delay was at 8:45pm once the booking was complete. They should have then promptly facilitated the call once Mr. Sherritt was arrested at 9:05pm. The call was not made until 9:29pm. This is not in and of itself a serious Charter violation, but the difficulty is that Mr. Palden to this point had not been told of any delay or why. Mr. Palden was not informed that a message had been left with duty counsel. This is problematic given the delay that had already occurred.

[62] After making the call to duty counsel, Officer Dean let the drug squad know and never followed up to ensure contact with duty counsel was made. Duty counsel did not call back until 10:10pm. Given the delay that had already occurred, Officer Dean or another officer should have followed up with Mr. Palden at a minimum to keep him informed: Rover, at para. 70; Wu at para. 78.

[63] However, I am not persuaded by the submission that the police conduct in this case was part of a policy or “routine” practice. Detective Teixeira acknowledged that a decision to hold off in allowing a detained person access to counsel does happen, but it depends on the circumstances. I accept this evidence. In this very case, for example, Mr. Sherritt was provided access to counsel without any delay.

[64] For the foregoing reasons I am satisfied that Mr. Palden’s s. 10(b) rights were violated from 8:45pm when he was not advised there was going to be a delay in facilitating his call with duty counsel, until 10:10pm when he was provided with his access to duty counsel. This includes that the call to duty counsel should have been facilitated as soon as possible once Mr. Sherritt had been arrested.

E. Section 24(2) Analysis

[65] Section 24(2) of the Charter requires the court to exclude evidence obtained in a manner that infringes the Charter if the admission of the evidence would bring the administration of justice into disrepute. The onus is on the accused to establish a case for exclusion. The Supreme Court stressed in R. v. Grant, 2009 SCC 32, paras 69-70, that the focus of s. 24(2) is the long-term repute of the justice system.

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

(i) The seriousness of the Charter-infringing state conduct;
(ii) The impact of the breach on the Charter-protected interests of the accused;
(iii) Society’s interest in the adjudication of a case on its merits.

[67] It is well established that a pattern of Charter breaches may cumulatively increase the seriousness of the Charter-infringing state conduct: Grant, at para. 75. This determination of whether there has been a pattern of misconduct is a factual one and must be done on a case-by-case basis: R. v. Zacharias, 2023 SCC 30, paras 47-49, 56.

[68] Section 24(2) of the Charter is “triggered” where evidence is “obtained in a manner” that violates an accused’s Charter rights. This is assessed using a purposive and generous approach. When looking at the entire chain of events in this case, I am satisfied that the evidence of the drugs was “obtained in a manner” that triggers a s. 24(2) analysis. The connection between the breach in this case and the evidence of the drugs is a combination of temporal and contextual. The court must then determine whether admitting the evidence would bring the administration of justice into disrepute by considering the three lines of inquiry described in Grant.

[69] The police approach to facilitating Mr. Palden’s right to counsel between 8:45pm and 10:10pm was a serious breach of s. 10(b) reflecting a somewhat indifferent attitude to Mr. Palden’s rights. This was not quite a conscious disregard for the Charter, but a failure to appropriately prioritize the rights of Mr. Palden. While the police decision to temporarily suspend or delay implementation of Mr. Palden’s s. 10(b) rights was reasonable, they did not inform him of the delay and ensure that the delay or suspension was no longer than necessary. It is within the context of the prior delay, and the lack of follow up and information to Mr. Palden, that the delay must be situated.

[70] Given the relatively short period of delay and the fact that police did not question him about the allegations prior to his speaking to counsel, the impact on his Charter-protected interests was of modest significance. There is no evidence or suggestion that the police took advantage of the s. 10(b) delay or gained any advantage from the delay. While there is a temporal and contextual connection between the violation and the evidence collected, there is no causal connection because the drugs had been discovered prior to the breach ever occurring: Rover, at para. 43.

[71] The third factor weighs strongly in favour of the admission of the evidence. The evidence is clearly reliable and excluding this evidence would mean the end of the Crown’s case with respect to a significant quantity of a serious drug. The seriousness of the offences underscores the heightened public interest in having the case tried on its merits. While the seriousness of the offence cuts both ways when assessing this factor, there is no question that there is a strong interest in the adjudication of this offence on the merits.

[72] On balance, the first factor favours exclusion, while the second only does so moderately. The third factor weighs strongly in favour of admission, tipping the balance in favour of not excluding the evidence pursuant to s. 24(2) of the Charter.

[73] The application to exclude the evidence is dismissed.

J.K. Penman
Released: January 24, 2025