R v. Jasfa Brown, 2026 ONSC 2751

CITATION: R v. Jasfa Brown, 2026 ONSC 2751

COURT FILE NO.: CR-24-823

DATE: 2026 11 08

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

Respondent

-and-

David D’Iorio, Noor Sohail, for the Crown Respondent

JASFA brown

Applicant

Janelle Belton, Alison Shields, for the Applicant

HEARD: March 25, 26, 2026

REASONS ON CHARTER APPLICATION

D.E. HARRIS J.

[1] Two issues are raised on this s. 10(b) Charter application brought by Mr. Brown:

A. Was s. 10(b) breached by not giving the informational component of the right until almost 20 minutes after the arrest?

B. How far can the police go in second guessing or rejecting a complaint from an arrestee about his conversation while exercising the right to counsel? The cases which guide the analysis are the companion cases of R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, and R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429.

[2] The applicant was arrested for the offence of discharge of a firearm (x2) during a dynamic entry on his apartment on July 3, 2024 at 6:11 a.m. About ten officers from the Peel Regional Tactical and Rescue Unit attended at the applicant’s apartment on the sixth floor of 1749 Victoria Park Avenue, in Scarborough. They gained entry to the unit by destroying the lock to the apartment with what looked to be a large incendiary device, smashing through the front door and then deploying a “distractionary device” [sic] (also known as a flash-bang grenade). Several officers pointed their rifles with bright lights on them into the apartment. They screamed “police” to alert the occupants of their presence. They then yelled for the occupants to come out with their hands on their heads. The applicant, his spouse and their eight-year-old daughter emerged, and the applicant was immediately arrested. The arresting officers, as was planned, were P.C. Delaney and P.C. Wilde of the Peel Regional Police.

ISSUE #1: WAS THE INFORMATIONAL COMPONENT OF THE RIGHT TO COUNSEL GIVEN “WITHOUT DELAY”?

[3] The body worn camera footage and the other evidence establishes beyond any doubt that imparting the right to counsel was delayed and given outside constitutional limits.

[4] This is the evidence. Upon the tactical squad exploding the lock on the apartment and yelling at gun point for the occupants to come out with their hands on their heads, the applicant emerged at 6:10:11 a.m. He was placed under arrest for discharge firearm and asked if he understood. At this point, there was a lot of commotion in the hallway outside the apartment. The applicant’s spouse and young daughter came out and the tactical squad steered them away from the scene of the arrest down the hallway of the apartment building.

[5] By 6:11:18 a.m., the applicant had been handcuffed and thoroughly frisked. After these tasks had been completed, P.C. Delaney took control of the applicant from the tactical team. The two were on the landing to a stairway and there was a glass partition which partially blocked this area from the hallway and the front door of the Brown apartment. They were behind this partition, somewhat apart from the commotion in the hallway. At 6:11:25 a.m., P.C. Delaney told the applicant that she had a couple of “things” she had to read to him.

[6] From 6:11 a.m. to 6:17 a.m., P.C. Delaney was alone with the applicant in this landing of the stairway area partially enclosed by the partition. Some officers milled around outside the partition. P.C. Delaney testified that the applicant was sweating, and the video seems to show that. The applicant was talking and questioning things, but he was not particularly voluble nor was he uncooperative. Between 6:11 a.m. and about 6:30 a.m., the two remained there in that space. P.C. Delaney was waiting for her partner, P.C. Wilde, testifying that she did not feel comfortable walking the applicant to her car outside through a building that she did not know. Waiting for her partner was a reasonable precaution and was not challenged by the defence. The applicant was then escorted out by the officers. The right to counsel and the cautions were given once the applicant was in the police car beginning at 6:30 a.m.

[7] An examination of what was going on between the arrest at 6:11 a.m. until when the right to counsel was given at 6:30 a.m. demonstrates that there was ample opportunity to give the informational component of the right to counsel. The scene was fully under the control of the police very quickly, within a few minutes of the entry to the apartment. There were almost 20 officers on scene. Most of P.C. Delaney’s time with the applicant was spent in dead silence, with nothing going on between them nor with any of the other officers involved. P.C. Delaney had no other tasks but to be with and control the applicant.

[8] It takes no more than a minute to give the full text of the s. 10(b) right. There was no excuse for not giving it. It seems that P.C. Delaney was working from a script for the arrest that had been written by her superiors. It was not produced but presumably it designated roles for her and for the other officers also. She testified that she stuck to the script and that it had her giving the rights to counsel in the car, not in the apartment building, that is a problem. It could have been that the scene was such that giving the rights to counsel after the dynamic entry would have been impractical. But as it turned out, the body-worn camera footage shows that there was lots of time. Here, the right to counsel could have been given at least 15 minutes before it was.

[9] The phrase “without delay” means immediately: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 37, 41. It is only subject to public or officer safety: Suberu, at para. 42; R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135 (C.A.), at paras. 26-27; R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561 (C.A.), at paras. 61-62. In Rover, Doherty J.A. said that delay is only justified by the police “after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel”: at para. 27.

[10] The police, including P.C. Delaney, did not testify to turning their minds to safety concerns which could justify a delay in imparting the informational component of the right to counsel. In this case, the arresting officer was not involved in clearing the premises like R v. Pileggi, at paras. 57-63. The delay there was only 7 minutes. Nor was there a pressing concern for officer safety like in R. v. Cameron, 2024 ONCA 231, 553 C.R.R. (2d) 52 (Ont. C.A.), at paras. 45-46. The delay there was shorter as well, 11 minutes.

[11] Here, the police had arranged for two officers to be exclusively in charge of the applicant after he was turned over by the tactical squad. That was a good and prudent approach. The other officers on scene enabled the arresting officers the luxury of time and security with the applicant. That cleared away any impediment to promptly providing the right to counsel information.

[12] It may well be that there is a disinclination to give the right promptly when there will be no reasonable opportunity to exercise it until somewhat later. But that is not the law and ignores the “without delay” command of the s. 10(b) right. The psychology of the detainee is important in the dynamic with the police. A detainee is “vulnerable to the exercise of [state] power and in a position of legal jeopardy. The purpose of s. 10(b) is to provide detainees an opportunity to mitigate this legal disadvantage.”: R. v. Willier, at para. 28.

[13] The detainee’s right to silence will likely be challenged by the police and subjected to their superior position to persuade the detainee to talk. The case law emphasizes that the informational component of the right to counsel has an important function to convey that in the face of the intimidating force of police power and control, there will soon be a lawyer in the detainee’s corner, an ally against the superior power of the state.

[14] The court in R. v. Dussault, 2022 SCC 16, [2022] 1 S.C.R. 306, at para. 56, approved Doherty J.A.’s comment in R. v. Rover, at para. 45, that the right to counsel is a “lifeline through which detained persons obtain legal advice and the sense that they are not entirely at the mercy of the police while detained.” The “intangible” benefits of s. 10(b) are now a prominent theme in the case law: also see R. v. Davis, 2023 ONCA 227, 166 O.R. (3d) 401 (C.A.), at para. 41; R. v. Thompson, 2025 ONCA 500, 450 C.C.C. (3d) 383 (Ont. C.A.), at paras. 43-47, 67.

[15] There was no malice or bad faith in not giving the right to counsel promptly. The error was a failure to understand the promptness requirement. The script and adhering slavishly to it led P.C. Delaney to delay giving the s. 10(b) right when there was, in fact, plenty of time to give it. In not providing the right when there was ample time to give it, a flagrant breach of s. 10(b) was committed.

ISSUE #2: SHOULD THE POLICE HAVE GIVEN THE APPLICANT A SECOND OPPORTUNITY TO CONSULT WITH COUNSEL?

THE EVIDENCE

[16] In the car before leaving for the station, P.C. Delaney told the applicant that he was under arrest for firearms charges and also told him that he was being investigated for several murders and an attempted murder. He asked to speak to his own lawyer and wanted to speak to family members to facilitate that. The police contacted the applicant’s father. One lawyer was suggested but summarily rejected by the applicant. Two attempts were made to contact counsel Louis Dallas at 7:57 a.m. and 9:18 a.m., and messages were left. One attempt was then made to contact counsel Craig Bottomley at 10:00 a.m. and a message was left for him as well. At about 10:30 a.m., the applicant was advised that no one had called back. In light of the lack of success in getting ahold of a lawyer of choice, the applicant was offered and accepted the assistance of duty counsel.

[17] After speaking to duty counsel for about six minutes, the applicant was then put into an interview room by himself. He engaged in a monologue in which he stated that the duty counsel he spoke to was not really a lawyer:

Like is, is-, you guys are scamming me. Well, suspect. Yes, suspect, whatever you want, bro. You guys, you guys called a fake lawyer and put me in that room and wasted my call. And the lady said she's not a lawyer. Don't talk to me, I'm not a lawyer. Who did you guys call? This is crazy, bro…See, you guys are just trying to violate my rights over and over again, man. You guys didn't give-, you guys called a fake person, a fake lawyer. The lady says she's not a lawyer. Crazy, bro.

[18] He continued this complaint to Detective Wagner when he entered the room. Det. Wagner is with the Ontario Provincial Police and is a specialist in the interrogation of suspects. He is on the Forensic Interviewing Team – West Region.

[19] These are some of the excerpts from the interview:

WAGNER: Hey, Jasfa. My name's Tom.

BROWN: Yeah. I want my lawyer. I'm not speaking.

WAGNER: I, I hear what you're saying on the, uh-, on the video and I want to explain all that to you, okay? Because we aren't trying to rip you off a lawyer. I can't do that. Anything about your lawyer is...

BROWN: They put some lady, they put some lady on there. Lady said she's not a lawyer. So at the end of the day, I'm not speaking until I get a lawyer.

BROWN: Because you guys said that's a lawyer, lady said I'm not a lawyer…

She just read the same charges as you guys read to me…That's a scam.

WAGNER: Right. So we called duty counsel. That's a-, that was a duty counsel lawyer, I can tell you that it was, all right?

BROWN: She said she wasn't a lawyer.

WAGNER: Maybe she said she's not your lawyer.

BROWN: No, she said, I am not a lawyer.

WAGNER: Uh...

BROWN: Did you-, you have to speak to your lawyer.

WAGNER: Okay.

BROWN: I am only reading this to you because they said to talk to you.

WAGNER: Okay. Did she provide some advice to you at least though,

about the charges?

BROWN: What advice? She just read the charges.

WAGNER: Okay.

BROWN: That's it. Just like...

WAGNER: Yeah.

BROWN: …what you guys did.

WAGNER: Whatever you guys talked about is private, right? Like I'm

not allowed...

BROWN: We didn't-, we...

WAGNER: ...to know, Jasfa, but I wanna make sure that you speak to

someone that is...

BROWN: She just said the charges. That's all she said is the charges.

WAGNER: Yeah, that's right.

BROWN: I didn't even need that phone call because you guys told me

the charges. That's a waste of phone call.

WAGNER: Okay. So listen, what we did-, I'll tell you the process that we've gone through so far, and that's why it's taken so long to even get a chance to, to talk to you, 'cause we want to talk to you and we wanna hear what you have to say if you do...

BROWN: I am here.

WAGNER:…right?

BROWN: I'm not-, I don't wanna say nothing.

WAGNER: Okay.

BROWN: You guys have the wrong person, that's all I'm saying.

WAGNER: Okay.

BROWN: So I need to speak to my lawyer so I can have my lawyer go

get my evidence...

WAGNER: Uh-huh.

BROWN: …and then I can do this speedy trial shit and go home.

WAGNER: Okay. And that's your right, Jasfa, I'm not here to screw around with that, all right? Really, this is all about respect because you've been arrested for something, you need to have the opportunity to talk about what's happened and I wanna give you that opportunity, okay? But you're right.

BROWN: Yeah.

WAGNER: You're totally right about your lawyer stuff, I don't wanna screw you over on that, okay? So let me...

BROWN: These guys already did.

WAGNER: Let me, let me tell you, let me tell you about all...

WAGNER: I can explain it to you if you sit down and listen, Jasfa.

BROWN: I, I need to do that with a lawyer. I don't wanna be explained

nothing...

WAGNER: Mm-hmm.

BROWN: ...by myself. I need my...

WAGNER: Mm-hmm.

BROWN: …lawyer here.

WAGNER: So listen what we did with your lawyer. We've got times and people that we've called for you. We're trying our best to get you a lawyer and...

BROWN: Yeah.

WAGNER: …we know that you spoke with duty counsel. I know that duty counsel is a lawyer. They're just not your lawyer, okay?

BROWN: Oh, no. That lady said she was not a lawyer. She just read-, that's what it's...

WAGNER: Yeah.

BROWN: You guys have it recorded. She'll tell you.

WAGNER: Mm-hmm.

BROWN: She says, I am not a lawyer, don't talk to me. I'm telling you this, you need to speak to your lawyer.

WAGNER: Mm-hmm.

BROWN: I'm not a lawyer.

WAGNER: Mm-hmm.

BROWN: So I'm just like, what, what am I speaking to you? Oh, I don't know, I'm just telling you this...

WAGNER: Mm-hmm.

BROWN: …and that. Yeah, that's just a waste of calls.

WAGNER: That's the first time I've ever heard of that 1 happening in a duty counsel...

BROWN: Yeah. She said she's...

WAGNER: ...number, right?

BROWN: …not a lawyer. She said very serious charges. Yeah, I know.

WAGNER: Mm-hmm.

BROWN: I need a lawyer. I need my lawyer...

(emphasis added)

[20] This excerpt is from the beginning of the interview at about 11:09 a.m. to about 11:15 a.m. The applicant continued to say several times after 11:15 a.m. that he wanted to speak to a lawyer, did not want to say anything and that the person he spoke to was not a lawyer. The interview continued to 12:15 p.m. when Ms Shields from Mr. Bottomley’s office phoned the police station and the interview was stopped to give the applicant an opportunity to speak to her. After he did so, he returned, and the interview continued for some time more.

[21] This was a difficult situation for Officer Wagner. It was clear that the applicant was completely dissatisfied with the conversation he had, but there were several interwoven elements within this. First, the applicant told Officer Wagner that the person who he spoke to on the duty counsel line said that she was not a lawyer. He believed that she was not a lawyer. Second, he said that he did not get legal advice from her, she just read the charges to him. Third, he still wanted to speak to a lawyer, preferably his own. Fourth and last, he did not want to say anything, but he continued to talk when prompted.

[22] Officer Wagner testified that he did not believe the applicant when he said that the person the police contacted on the duty counsel line was not a lawyer. This was a reasonable conclusion. It was conceded by counsel for the applicant on this hearing that the person the applicant spoke to must in fact have been a lawyer. That is the way the free duty counsel line is set up. The police make the call to the dedicated duty counsel line and a duty counsel lawyer speaks to the detained individual. There is no reason to believe that anything different happened on this occasion or that the person was not a lawyer.

[23] Officer Wagner testified that he believed based on what he had heard from other officers that the applicant had spoken to duty counsel for about 20 minutes. Firsthand evidence from Officer Lister showed that the conversation was actually considerably shorter, about six minutes. The officer also testified that he was concerned with timing. Although not from this jurisdiction, he had heard that an accused has to get to court by 1:30 p.m. in order to appear before a Justice of the Peace prior to the close of court. He was conscious of this deadline when dealing with the applicant.

THE LAW

[24] The issue is: Did the police breach the applicant’s s. 10(b) right to counsel by not allowing him to have further consultation with a lawyer and not holding off until that was done? The issue involves the third category in R. v. Sinclair. This category deals with the situation where there is reason to question whether the detainee understood the s. 10(b) right to counsel such that the police should have given him another consultation with a lawyer: R. v. Sinclair, at para. 52.

[25] In R. v. Sinclair, the accused had already consulted with counsel twice but requested another opportunity while at the same time saying that he did not want to say anything. The police officer persisted, and Sinclair eventually confessed. It was argued upon appeal that a detainee has a right to have counsel present during interviews and that there should be a right to a second consultation with counsel. The majority disagreed that there was a right to have counsel present. With respect to a second consultation, it was held that generally there is no right to a second opportunity, although subject to some exceptions. There were three examples given: i. if there were new procedures involving the detainee; ii. a change in jeopardy; or, iii. the third category, the one relevant here, whether there is reason to question the detainee’s understanding of his s. 10(b) right. Sinclair did not fall into any of these categories and so his appeal was dismissed.

[26] The general point was put this way in R. v. Sinclair, at para. 57,

It is assumed that the initial legal advice received was sufficient and correct in relation to how the detainee should exercise his or her rights in the context of the police investigation. The failure to provide an additional opportunity to consult counsel will constitute a breach of s. 10(b) only when it becomes clear, as a result of changed circumstances or new developments, that the initial advice, viewed contextually, is no longer sufficient or correct. This is consistent with the purpose of s. 10(b) to ensure that the detainee’s decision to cooperate with the police or not is informed as well as free. [Emphasis added]

[27] The reasoning behind not allowing further opportunities to exercise the right to counsel is the public interest in gathering evidence and ensuring that the detainee is not able to cause delays for the purpose of frustrating investigations. Charter rights “must be exercised in a way that is reconcilable with the needs of society”: R. v. Sinclair, at para. 58.

[28] In R. v. Thompson, Pomerance J.A. concluded that the appellant should have been permitted a second opportunity to confer with counsel before a strip search was conducted. She summed up the balance that must be maintained emanating from the re-consultation jurisprudence:

39 The need for balance was at the heart of Sinclair. The majority rejected a model that would permit an unfettered right to reconsult counsel, reasoning that it “would not strike the proper balance between the public interest in the investigation of crimes and the suspect’s interest in being left alone”: at para. 63. As the majority put it, “[t]he purpose of the right to counsel is not to permit suspects, particularly sophisticated and assertive ones, to delay needlessly and with impunity an investigation and even, in certain cases, to allow for an essential piece of evidence to be lost, destroyed or for whatever reasons, made impossible to obtain”: Sinclair, at para. 58, quoting R. v. Smith, 1989 CanLII 27 (SCC), [1989] 2 S.C.R. 368, at p. 385 (internal quotation marks and brackets omitted in original).

[29] It is presumed that advice provided by counsel is sufficient unless evidence suggests otherwise. In R. v. Willier, the companion case to R. v. Sinclair, the Court held:

41 While s. 10(b) requires the police to afford a detainee a reasonable opportunity to contact counsel and to facilitate that contact, it does not require them to monitor the quality of the advice once contact is made. The solicitor-client relationship is one of confidence, premised upon privileged communication. Respect for the integrity of this relationship makes it untenable for the police to be responsible, as arbiters, for monitoring the quality of legal advice received by a detainee…. The police cannot be required to mandate a particular qualitative standard of advice, nor are they entitled to inquire into the content of the advice provided.

[30] Is there anything in the evidence which would cast doubt on a detainee’s understanding or exercise of the right to counsel? The Court in dismissing Willier’s appeal said:

42 As noted, s. 10(b) aims to ensure detainees the opportunity to be informed of their rights and obligations, and how to exercise them. However, unless a detainee indicates, diligently and reasonably, that the advice he or she receives is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview. [Emphasis added]

[31] Willier had expressed satisfaction with the advice he received and did not ask for a second consultation. He was offered an open-ended further opportunity but did not avail himself of it. If he maintained a desire for a second consultation, the Court held that he was not reasonably diligent in pursuing it. There was nothing further the police could have done: R. v. Willier, at para. 44.

[32] For other cases that discuss the presumption that legal advice is proper and adequate, see R. v. Braithwaite, [2002] O.J. No. 1955 (Ont. S.C.); R. v. Menard, 2010 BCSC 1416, 11 B.C.L.R. (5th) 162 (B.C S.C.), at para. 40; R. v. Therrien, 2006 BCSC 1739, at paras. 63-76; and R. v. Stubling, 2002 BCPC 642, at para. 16.

[33] The most important judgment for the case at hand is R. v. Lafrance, 2022 SCC 32, [2022] 2 S.C.R. 393. The Court explored the issue of whether the advice given by counsel was adequate and whether the detainee understood it. Lafrance was arrested for the murder. He exercised his right to counsel by speaking to a Legal Aid lawyer. He confirmed to the police afterwards that he had spoken to a lawyer and understood the advice. Several hours into the subsequent police interview, the tone of the interview shifted and became accusatory. Lafrance asked to call his father as it was his “only chance of getting a lawyer.” He said that he was told to get a lawyer before he continued to talk and to sit down personally with the lawyer. The interviewing officer said he had already spoken to a lawyer and had no right to have a lawyer present. The interview continued and Lafrance confessed.

[34] The majority of the Court concluded that Lafrance, based on what he said about sitting down with a lawyer personally before he would continue to talk, was ignorant of his rights. He had either misinterpreted the advice given or the advice was incorrect: R. v. Lafrance, at para. 84. The majority explained:

75…The issue, after all, is not merely whether the detainee was advised; the third category presumes that to have occurred. Section 10(b) requires much more than that (a point repeatedly stressed in Sinclair: see paras. 2, 24-26, 28-29, 32, 47-48, 53, 57 and 65). Rather, it is that the detainee may not have understood the legal advice he or she received including, as the Court of Appeal correctly noted, whether and how to exercise the right to silence, which itself includes “the benefits and drawbacks of cooperating” and “strategies to resist cooperation” where that is the detainee’s choice.

77…A purposive and generous understanding of s. 10(b) and, by extension, of the third Sinclair category, also reflects that practical reality of police-citizen interactions of which I have already spoken, and which obtains a fortiori in circumstances of arrest or detention: the detainee is in a position of disadvantage relative to the state (V. A. MacDonnell, “R v Sinclair: Balancing Individual Rights and Societal Interests Outside of Section 1 of the Charter” (2012), 38 Queen’s L.J. 137, at p. 156). This disadvantage is no small matter, particularly given that the police may employ tactics such as lying during an interrogation. It is only by ensuring that detainees obtain legal advice that accounts for the particular situation they face, conveyed in a manner they can understand, that s. 10(b) can meaningfully redress the imbalance of power between the state (whose agents know the detainee’s rights) and the detainee (who may not). [Emphasis in original]

[35] The disagreement between the majority and the dissent, at least on one level, was based on whether there were indications that Lafrance did not understand his right to counsel. The majority took a broader and more Charter sensitive approach to this issue. The majority held that there was reason to question Lafrance’s understanding, concluding:

86 There was ample reason here to question Mr. Lafrance’s understanding of his s. 10(b) right, bringing his circumstances within the third Sinclair category. While it is true that general confusion or a “nee[d for] help” is not a ground for further consultation with counsel (Sinclair, at para. 55), Mr. Lafrance was not, as my colleagues say, experiencing “mere confusion” or “discomfort” (paras. 82-83 (emphasis deleted)). To explain, and as my colleagues acknowledge, a “changed circumstance” can arise “[w]hen there is reason to question the detainee’s understanding of his s. 10(b) right” (para. 172). That is this case. His confusion was an “objective indicat[or] that renewed legal consultation was required to permit him to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do so” (Sinclair, at para. 55). And this is because the information to which he had a right under s. 10(b) had not been conveyed, either at all or in a manner he understood (para. 52).

APPLICATION TO THE CASE AT HAND

[36] Was there reason to believe that the accused may not have understood the legal advice he received? It is simple enough to enunciate the test to be applied but as usual, much more difficult to apply the test in practice. The real gauge of what the law is and what interests it should protect in any given instance emerges from the application of the law to the facts, not in the bare articulation of the test. In Lafrance, the majority held that the appellant did not understand the legal advice he received. Disagreeing with this, the dissenting judges looked at the passage following the request for his father and a lawyer to be present. There, the appellant Lafrance said that he had received legal advice and understood it.

[37] There is an interpretative difference between the two Lafrance opinions in reference to the appellant’s communication with the police but there is also a broader approach suggested by the majority. In other words, the majority was stricter about what level of understanding was required.

[38] This is an easier case than Lafrance. The interpretation of the applicant’s words and conduct in context is relatively clear. In this instance, there was objectively speaking a lack of understanding.

[39] It was not surprising that Officer Wagner reacted with skepticism to the applicant’s claim that the person he had spoken to said she was not a lawyer. That could not have been correct. However, the Officer ought not to have jumped to the conclusion that based on that, the re-consultation requested by the applicant ought not to have been accommodated.

[40] First, it was not necessarily the case that the applicant was stalling for time or employing delay tactics, contrary to his obligation to act with diligence. It was within the realm of possibility that he was simply mistaken. He had been rousted from his bed by a formidable and intimidating police presence in his home. The police were heavily armed with frightening looking tactical squad weapons, there were many of them and his wife and child were also subjected to this force. Although this was several hours before, it was a shocking event.

[41] The video of him being transported to the station shows that he was remarkably agitated, rude and uncooperative. While that does not inure to his favour, it must be looked at when ascertaining whether he understood the legal advice he received later. It is important to stand in the shoes of the applicant and determine what real understanding he would have had: R. v. Lafrance, at para. 87.

[42] The call with duty counsel was very brief, much shorter than Officer Wagner thought it was. Conveyance of information between officers on issues as fundamental as the right to counsel is important. Objectively, the length of the call was a relevant factor to look at in the applicant’s request to re-consult. It is to regrettable that Officer Wagner did not have the accurate information.

[43] In addition, the applicant told Officer Wagner that the person on the other end of the line just read the charges to him. We have a video of P.C. Delaney reading the charges to the applicant and then warning him about the murders and the attempted murder. There were 13 counts and then the murder warnings. This process took a considerable amount of time. Based on this, there may well have been very little time for conversation with duty counsel.

[44] In light of the solicitude necessary to properly protect the seminal right to counsel—the principal purpose which is to inform a detainee of his right to silence—a police officer must be quite certain they stand on firm ground in denying a right to re-consultation when a detainee complains about his opportunity to speak to counsel. The test is objective, not subjective. Caution must be the watch word. The balance to be struck between proper conveyance of the right to silence by counsel and the requirement of due diligence, will generally favour re-consultation when dissatisfaction is expressed.

[45] Taking an objective approach may often be difficult for the police. There is a strong push to take a statement from the accused because of the desire to get the full picture and, ultimately, the reality that whether inculpatory or exculpatory, a statement generally benefits the police and the prosecution. That was true in this case, where Officer Wagner made no bones about his desire to get a statement from the applicant.

[46] Furthermore, the officer was frank about wanting to get a statement before having to get the applicant to court by 1:30 p.m. as he was told by local police officers that this was the cut-off time. A further consultation could well have frustrated this goal.

[47] In my view, both considerations ought to have been distinctly secondary to ensuring that the applicant had satisfactory advice from counsel. As custodian of the right to counsel but with the potential conflicting purpose of obtaining a statement from the accused, it is important that the police be even handed. The idea that the police obligation under s. 503(1)(a) of the Criminal Code to get an accused before a Justice of the Peace within 24 hours should take precedence over facilitating the right of the accused to exercise his right to counsel cannot be correct. This would have the accused’s less vital interests taking precedent over those more central.

[48] Understandable skepticism on the officer’s part, and factors that may have hindered his objectivity, lead in my view to the Officer making an incorrect judgment with respect to the complaint that duty counsel said she was not a lawyer. The inaccurate statement that the person on the duty counsel line was not a lawyer disproportionately coloured the Officer’s approach. That was understandable perhaps, but it was wrong. The other things that the applicant said were more than simply contextual factors. They were part of the complaints themselves.

[49] There was the general dissatisfaction that was evident in what the applicant said in the interview. There was also a complaint going to the bedrock purpose of the right to counsel. The applicant stated more than once that he did not get any legal advice. To reiterate, this exchange took place:

WAGNER: Okay. Did she provide some advice to you at least though, about the charges?

BROWN: What advice? She just read the charges.

WAGNER: ...to know, Jasfa, but I wanna make sure that you speak to

someone that is...

BROWN: She just said the charges. That's all she said is the charges.

WAGNER: Yeah, that's right.

BROWN: I didn't even need that phone call because you guys told me

the charges. That's a waste of phone call. [Emphasis added]

[50] This complaint was confirmed by the brevity of the conversation itself, particularly taking into account the time it took to review the charges and matters being investigated. Taking the complaints as a whole, from an objective standpoint, Officer Wagner was too quick to dismiss the applicant’s protestations.

[51] It has been the law since the early days of judicial consideration of the s. 10(b) right that an accused must be reasonably diligent in the exercise of his or her right: R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435, at p. 439; R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138, at pp. 154-55; R. v. Smith, 1989 CanLII 27 (SCC), [1989] 2 S.C.R. 368; R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3; R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, at para. 57. The concern is with the detainee stalling and obstructing the work of the police by improper use of the right to counsel. Here, it cannot be said the applicant failed to exercise due diligence and thus ought to be deemed to have sacrificed his right to an opportunity to speak to counsel.

[52] In R. v. Willier, the Court said at para. 42, “…unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied” (Emphasis added). From this perspective, because unlike R. v. Willier, he immediately complained, the applicant was diligent. Was he reasonable? Or was he stalling for time? When all the circumstances are considered—the brevity of the interview, the persistence of the complaint that the person he spoke to was not a lawyer, the dissatisfaction with the advice itself—the applicant’s complaints in context were reasonable.

[53] The police ought to have permitted a second call. While the Crown relied on R. v. Tahmasebi, 2020 ONCA 47, 149 O.R. (3d) 453 (C.A.), at paras. 29 and 37, in that case, there was no reason to infer that there was dissatisfaction on the detainee’s part. The case was correctly interpreted in another case relied upon by the Crown, R. v. Beboning, 2025 ONSC 6390, [2025] O.J. No. 4968 where it was held,

166 In R. v. Tahmasebi, the Ontario Court of Appeal reiterated that there must be objective factors in the circumstances that support a finding that a renewed legal consultation was required. In that case there was no evidence of the actual advice the accused received, and the accused did not give evidence that there was any aspect of it that he did not understand. [Emphasis added]

[54] That is not this case. The police here could during a second call have ascertained for themselves in a brief conversation that the person on the other end of the line was, in fact, a lawyer and then assured the applicant. This could have been done expeditiously with not a lot of time lost.

[55] Between allowing a second opportunity and possibly permitting stalling and delay, if that is what the applicant was doing, the course was clear. The police, after all, did allow a second consultation with counsel when Ms. Shields called at 12:15 p.m. If they did so then, they should have before.

[56] In conclusion, the implementational aspect of the s. 10(b) was breached by the officers not allowing the applicant a second opportunity to consult with counsel.

SHOULD THE EVIDENCE BE EXCLUDED?

[57] There were two violations of the accused’s right to counsel guaranteed by s. 10(b) of the Charter, one informational, the other implementational. In my view, there is no alternative but to exclude all utterances of the applicant made to the police: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

SERIOUSNESS OF THE CHARTER BREACH

[58] The police ought to have known that almost a 20-minute gap between arrest and the provision of the text of the s. 10(b) right constituted a Charter violation. This diverged markedly from the “without delay” command. In the shocking circumstances of a dynamic entry into an apartment with a large phalanx of police officers in the early morning hours, the right to counsel could have been of solace to the applicant.

[59] The implementational breach was also not committed in bad faith. But nor was it in good faith. The Officer did not have an easy judgment to make and made the wrong decision. Yet, standing back, as the Officer should have done, the dissatisfaction of the applicant was palpable. That should have been enough, given the importance of the right to counsel and the lack of exigency, to ring alarm bells. In the end, the violation of the implementation element of the right to counsel is inevitably serious and it was in this case.

THE IMPACT OF THE BREACHES ON THE APPLICANT

[60] There was a dual impact here because of the infringement involved both the informational and implementational components of s. 10(b). In R. v. Lafrance, at para. 97, the majority adopted the earlier statement of the Court that s. 10(b) is “the single most important organizing principle in criminal law”: R. v. P. (M.B.), 1994 CanLII 125 (SCC), [1994] 1 S.C.R. 555, at p. 577. Self-incrimination and the right to silence are protected by the s. 10(b) right. Giving the right to counsel at the time of arrest would likely not have calmed the applicant’s attitude judging from how upset he was when fully informed of the charges later on. But if the applicant had spoken fully to a lawyer, his resolve to remain silent which was manifested throughout the interview would likely have been fortified.

SOCIETY’S Interest in Adjudication on THE Merits

[61] In my view, although I recognize that this factor always leans towards inclusion, it does so only weakly in this case. In R. v. Lafrance, at para. 99, the majority held that the confession evidence was “largely extraneous to the core of the Crown’s case.” As a consequence, the evidence supported inclusion “but not heavily so.” R. v. Lafrance, at paras. 99-100.

[62] This application is the rare exception where the third Grant factor is only slightly above neutral: also see R. v. Ramirez-Chavira, 2021 ONSC 3603 at paras. 61-62. The reason for this is that the evidentiary value of the evidence to the Crown was virtually nil. The purpose for the finding of admissibility sought by the Crown was only to cross-examine the applicant if he takes the witness stand. The use the statements of the accused are to be put to, according to the Crown, are with reference to the applicant’s assertion of alibi. It is said that the alibi was false.

[63] If it can even be said that the applicant raised a defence of alibi, it was threadbare. The applicant said several times in reaction to the allegations of discharge firearm in Brampton, that he has never been to Brampton, although he qualified this later on. He also said in reference to one of the discharge firearm offences nine months before that he usually walks his dog in Toronto at the time that offence was committed

[64] The applicant, as mentioned, was agitated during this exchange and reacted with little thought to the questioning. The assertion that he had never been to Brampton was not absolute. The excuse that he usually walks his dog at the time the offence was allegedly committed was of scant evidentiary value. It might have amused a jury, but as a defence, it was not terribly cogent. Nor was it the type of false statement that could have been used to impeach the applicant’s testimonial veracity. It was not specific evidence but rather, was an assertion based on usual habit and was unsupported by evidence from another person as intrinsic to an alibi defence. It is exceedingly unlikely that the applicant would have raised this evidence as his actual defence to the charges. Likewise, cross-examining the applicant on this evidence would have been largely ineffective.

CONCLUSION ON THE EXCLUSION REMEDY

[65] The seriousness of the Charter violation and the impact on the applicant both points strongly towards exclusion. This is commonly true in the situation when there is substantial right to counsel violations. The third Grant factor, the preference for adjudication on the merits, at most, accrues weakly in favour of admission. Balancing the three, the first two factors strongly counselling exclusion, exclusion ought to be ordered: R. v. Beaver, 2022 SCC 54, [2022] 3 S.C.R. 718 at para. 134.

[66] As a result, the application is allowed and the evidence is excluded.