



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Griffith, 2021 ONCA 302

DATE: 20210507

DOCKET: C66830

Miller, Jamal and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Taylor Adam Griffith

Appellant

Marianne Salih, for the appellant

Avene Derwa, for the respondent

Heard: October 28, 2020 by video conference

On appeal from the conviction entered on
    October 31, 2018 and the sentence imposed on January 11, 2019, with reasons
    reported at 2019 ONSC 358, by Justice Alfred J. OMarra of the Superior Court
    of Justice.

Jamal J.A.:

A.

overview

[1]

The appellant, Taylor Griffith, was convicted of
    offences related to the unlawful possession of a loaded semi-automatic handgun with
    a chambered round ready to fire and possession of crack and powder cocaine
for the purpose of trafficking
. He was sentenced to 6
    years in prison and various ancillary orders, less credit for pre-sentence
    custody calculated at 22 months, requiring him to serve another 4 years and 2
    months. He now appeals his conviction and seeks leave to appeal his sentence.

[2]

The main issue on the conviction appeal is
    whether the trial judge erred in dismissing an application to exclude the evidence
    of the handgun and drugs found on the appellant when he was searched incident
    to arrest. The trial judge found the police had objectively reasonable grounds
    to arrest the appellant in all the circumstances, including their previous observations
    of hand-to-hand transactions of suspected drug trafficking. He also held  and
    the Crown conceded  that the police breached the appellants right to counsel
    under s. 10(b) of the
Charter
by delaying his access to counsel for
    several hours while they executed search warrants at his apartment and storage
    locker.
At the same time, the
trial judge ruled
    that the police had case-specific concerns for officer safety and evidence
    preservation that justified delaying access to counsel until the search
    warrants were executed. The trial judge declined to exclude the evidence under
    s. 24(2) of the
Charter
. He also declined to reduce the appellants
    sentence because of the s. 10(b) breach.

[3]

For the reasons that
follow, I would dismiss the conviction and sentence appeals. I agree
    with the trial judge that the police had objectively reasonable grounds to
    arrest the appellant and to search him incident to arrest. I also agree with
    the trial judge that the police breached s. 10(b) by delaying access to counsel,
    but as I explain below, I would find the breach to have been briefer than the
    trial judge found. The police were justified in delaying access to counsel while
    they executed the search warrants because of the case-specific concerns for
    officer safety that the trial judge himself found. This delay in accessing
    counsel therefore did not breach s. 10(b). However, the further unexplained delay
    in accessing counsel, of one hour and twenty minutes after the search warrants were
    executed, did breach s. 10(b). Despite this breach of s. 10(b)  which appears to
    have been unintentional and situation-specific rather than systemic  I would
    not exclude the evidence under s. 24(2) of the
Charter
. I also see no
    basis to interfere with the trial judges assessment that the s. 10(b) breach did
    not warrant a sentence reduction.

B.

background

[4]

The police received information from a
    confidential informant that the appellant was selling drugs on Eglinton Avenue
    West in Toronto in an area known to have drug trafficking problems. A team of
    four plain-clothes officers from the Major Crime Unit of the Toronto Police
    Service  Detective Constables Quinlan, Mignardi, McCartney, and Pollard 
    placed the appellant under surveillance. The officers were trained and
    experienced in drug investigations and had seen many street-level drug deals.
    They followed and watched the appellant on October 10, 11, 21, and 24, 2017.

[5]

The surveillance was challenging because the appellant
    jumped fences and habitually used alleyways rather than main streets. The
    officers perceived the appellant to
be conscious of
surveillance.
    D.C. Mignardi described his head [as] always on a swivel.

October 10

[6]

On October 10, 2017, D.C.s Mignardi and
    McCartney followed the appellant as he left a library on Eglinton Avenue West
    carrying a satchel. He went down a laneway, over a fence, and used a key to
    enter an apartment building. The officers were familiar with the apartment building
    because they had received complaints that some tenants allowed drug users to consume
    drugs in their units and they had made several drug arrests there. The landlord
    had even given the police a key to the building because of concerns about drug trafficking.
    D.C.s Quinlan and Mignardi testified that they had been in the building a lot.
    D.C. Quinlan said he had conducted three or four drug investigations there that
    led to arrests.

October 11

[7]

The next day, D.C. Quinlan went back to the
    building. He went to a third‑floor apartment that the confidential informant
    told the police that the appellant occupied and he saw the appellant leave the apartment.

October 21

[8]

On October 21, 2017, D.C. Mignardi monitored the
    appellant as he sat on a park bench in a parkette. She was about 20 meters away
    from the appellant and out of sight. The appellant was talking on his
    cellphone. She saw two men approach him on bicycles and interact with him for
    about 30 seconds. She recognized them both as suspected drug users and had seen
    them in the area  one of them daily, panhandling. She knew one of them lived
    in a house full of drug users because she had been in the house twice and had
    seen him inside with crack pipes and drugs scattered around. At first, the men on
    bicycles had their hands in their pockets and then completed a hand-to-hand
    transaction with the appellant, lasting like a second, in which their fists were
    slightly clenched, their hands met, and there was sort of a  swap. It was
    not a fist-bump, but a sort of handshake where the palms swiped together. D.C.
    Mignardi saw no money or drugs and heard no conversation. The two men then rode
    away in the direction they had come, and the appellant immediately got up and walked
    away.

[9]

D.C. Mignardi was convinced the two men had just
    bought drugs from the appellant. She had seen about 50 hand-to-hand drug
    transactions in her career. She had also just completed a drug-investigation
    training course the week before, including on what to look for in hand-to-hand
    transactions  it matched what she had just seen.

[10]

D.C. Quinlan came to assist D.C. Mignardi at the
    parkette. He was about 100 metres away. He saw the two men on bicycles ride by.
    He knew one of them by name as a suspected drug user because he had seized a
    crack pipe from him once before and often saw him panhandling.

[11]

D.C. Mignardi testified that she believed she
    now had grounds to arrest the appellant for drug possession and possession
for the purpose of trafficking
. The officers decided
    not to arrest the appellant that night, however, because they wanted to
    continue the investigation and planned to seek a search warrant. D.C. Mignardi
    testified that the police wanted to see what [the appellant] was up to and to
    learn where he was keeping his product and if there was more product.

[12]

The police continued to follow the appellant
    that evening. He went into a laundromat and came out carrying a garbage bag of
    clothes. They then followed him to a storage locker, which he left empty-handed
    after less than 20 minutes.

October 24

[13]

On October 24, 2017, D.C. Mignardi drafted two search
    warrant applications: one for the appellants apartment and one for the storage
    locker. The police planned to arrest him and then to execute the search warrants
    when they had him in custody.

[14]

The officers tracked down the appellant in
    mid-afternoon and saw him enter a John Howard Society building. They
decided to arrest
him based on the hand-to-hand
    transactions they had seen three days earlier. They tried to locate him in the
    building but could not find him. They then saw him leave the building carrying
    a bag and followed him into a laneway. After a brief struggle in which the
    appellant tried to escape, D.C.s McCartney and Mignardi arrested the appellant
    at 3:55 p.m.

[15]

During the struggle as the appellant was
    arrested, D.C. Mignardi saw a handgun in the waistband of his pants and seized it
    incident to arrest. It turned out to be a loaded semi-automatic handgun with a
    chambered round ready to fire and 11 more rounds in the magazine.

[16]

The police also searched the appellants bag
    incident to arrest and found over an ounce of crack and powder cocaine, $440 in
    cash, and his identification.

[17]

The officers called for a marked police cruiser
    so that the appellant could be videotaped as he was read his rights. He was
    placed in a marked cruiser at 4:00 p.m. At 4:03 p.m., the appellant was advised
    of his right to counsel, as recorded on the in-car camera. He was asked, Do
    you want to call a lawyer now? He replied, Yes, and told the officer the
    name of his lawyer.

[18]

The appellant was then transported to the police
    station. At 4:25 p.m., as he was being processed, an officer reminded the
    appellant of his right to counsel. The appellant reiterated that he wanted to
    speak to the lawyer he had named. The officer told the appellant that the
    police would try to contact his lawyer.

[19]

Meanwhile, the police executed the search warrants.
    They drove to the storage locker, which was about 15 minutes drive away, and searched
    it, beginning at 5:07 p.m. The search took just two minutes. They then took
    photographs and secured the scene. Next, they drove to the appellants apartment,
    and searched it from 5:50 p.m. until 6:20 p.m. They found nothing of
    consequence at either place. They then returned to the police station at 6:28
    p.m.

[20]

At 7:40 p.m.  three hours and forty-five
    minutes after the appellants arrest and an hour and twenty minutes after the search
    warrants had been executed  the appellant
was
    allowed to
speak to his lawyer.
At no time
did
    the police explain to the appellant the reason for the delay in accessing
    counsel.

C.

The trial judges reasons

[21]

At the start of trial, the trial judge dismissed
    an application to exclude the evidence of the gun and drugs seized incident to
    arrest:
R. v. Griffith
, 2018 ONSC 6471. The trial judge ruled: (1) the
    police had objectively reasonable grounds to arrest the appellant, and thus did
    not violate his right not to be detained arbitrarily under s. 9 of the
Charter
;
    (2) the warrantless search of the appellant was a lawful search incident to
    arrest, and thus did not breach his right against unreasonable search or
    seizure under s. 8 of the
Charter
; and (3) the delay in accessing counsel
    until after the search warrants were executed breached the appellants right to
    counsel under s. 10(b) of the
Charter
.

[22]

The trial judge held, however, that the evidence
    should not be excluded under s. 24(2) of the
Charter
. He ruled: (1) the
    police conduct in delaying access to counsel and failing to inform the
    appellant of the reason for the delay, while not done in bad faith, was
    serious misconduct that favoured excluding the evidence; (2) the delay in
    accessing counsel had minimal negative impact on the appellant and there was
    no causal or indeed temporal connection between the s. 10(b) breach and the
    evidence obtained, which mitigated the impact of the breach on his
Charter
-protected
    interests; and (3) the evidence seized was reliable and crucial to the
    prosecution of very serious offences. Balancing the seriousness of the breach,
    the minimal negative impact on the appellants
Charter
-protected
    interests, and societys interest in the adjudication of these offences on the
    merits, the trial judge ruled that the admission of this evidence would not
    bring the administration of justice into disrepute.

[23]

On the admission of the evidence, the appellant
    was found guilty. He was sentenced to a global sentence of six years in prison:
    four years for possession of a loaded prohibited firearm; one year consecutive
    for possession of crack cocaine and powder cocaine
for
    the purpose of trafficking
; one year consecutive for breach of a
    firearms prohibition order; six months concurrent for breach of a probation
    order; and various ancillary orders. After pre-sentence custody credit calculated
    at 22 months, the appellant had 50 months left to serve.

D.

discussion

[24]

I will address the following four issues:

1.

Did the police lawfully arrest the appellant and search him incident
    to arrest?

2.

Were the police justified in delaying the appellants
    access to counsel?

3.

Should the evidence have been excluded under s.
    24(2) of the
Charter
?

4.

Did the trial judge err in his sentencing
    analysis?

Issue #1: Did the police lawfully arrest the appellant and search him
    incident to arrest?

(a)

Overview

[25]

The appellants first ground of appeal asserts
    that the trial judge erred in concluding that the police had lawful grounds to
    arrest him based on what D.C. Mignardi saw in the parkette. He claims that
    because the police did not have lawful grounds to arrest him without a warrant
    or search him incident to arrest, his arrest violated s. 9 of the
Charter
and the search and seizure violated s. 8 of the
Charter
. As I will
    elaborate, I do not accept this submission.
In my
    view, the
police had lawful grounds to arrest the appellant and to search
    him incident to arrest.

(b)

The applicable principles

[26]

Section 495(1)(a) of the
Criminal Code
, R.S.C.
    1985, c. C-46,
provides that a
peace officer may arrest without warrant a person who has committed
    an indictable offence or who, on reasonable grounds, he believes has committed
    or is about to commit an indictable offence.

[27]

A lawful arrest requires the arresting police
    officer to have subjective reasonable and probable grounds to believe that an
    offence has been committed and those grounds must be justifiable from an
    objective viewpoint. The objective assessment depends on the totality of the
    circumstances relied on by the arresting officer, including the
dynamics of the situation
, as seen from the
    perspective of a reasonable person with comparable experience as the arresting
    officer:
R. v. Storrey
, [1990] 1 S.C.R. 241, at pp. 249-51;
R. v.
    Lawes
, 2007 ONCA 10, at para. 4; and
R. v. Anang
, 2016 ONCA
    825, 367 C.R.R. (2d) 289, at para. 14.

[28]

The existence of reasonable and probable grounds
    is founded on
the trial
judges factual
    findings. Although such factual findings attract appellate deference, whether
    the facts as found by the trial judge amount to reasonable and probable grounds
    is a question of law reviewable for correctness:
R. v. Shepherd
, 2009
    SCC 35, [2009] 2 S.C.R. 527, at para. 20;
Anang
, at para. 13.

(c)

Application to this case

[29]

The appellant does not dispute that D.C. Mignardi
    had subjective reasonable and probable grounds to believe that an offence had
    been committed in the parkette. He claims, instead, that her subjective grounds
    were not justifiable from an objective viewpoint. He submits that her belief
that
she saw two drug transactions in the parkette
    rested on unverifiable speculation: she saw no drugs or money exchanged and
    nobody was investigated that night. He says that nothing the police had seen
    during their surveillance of him was incriminating: the appellant walking
    around alone his own neighbourhood and taking short cuts, sitting on a park
    bench alone, or briefly interacting with two men on bikes.

[30]

I do not accept this submission. The appellants
    argument focuses on each factor in isolation and ignores the trial judges factual
    findings on the totality of the circumstances relied on by D.C. Mignardi. Such
    an approach is wrong in law: see
Lawes
, at para. 4. The relevant factual
    findings of the trial judge include D.C. Mignardis training and
    experience and her knowledge
of the participants
in
    the transactions, which informed his conclusion
that
she
    had objectively justifiable reasonable and probable grounds to believe that the
    appellant had committed an indictable offence. The trial judge found:

-

D.C. Mignardi saw the three men engage in very brief hand-to-hand
    transactions, lasting less than 30 seconds, which did not appear to be a
    handshake or other greeting, with limited or no conversation. The trial judge
    summarized D.C. Mignardis evidence as being that the men extended their arms with
    clenched fists as if holding something and then swiping or sliding their palms
    together, which she believed based on her training and experience to be
    exchanging money for drugs. The two men on bikes immediately rode away in the
    same direction as they had come. The appellant walked off in the other
    direction.

-

D.C. Mignardi had been involved in several drug surveillance
    investigations and had seen about 50 hand-to-hand drug transactions in her
    career. She and D.C. McCartney had relevant training.

-

D.C. Mignardi
had relevant knowledge about
    the three people
she saw: (1) she and her colleagues had seen the
    appellant behave
in a manner suggesting to them that
he
was conscious of
police surveillance; (2) the
    appellant was linked to an apartment building that the police knew had drug issues,
    so much so the landlord had given the police a key to the building because of these
    concerns; and (3) she knew the two men on bikes as suspected drug users, and
    her colleague, D.C. Quinlan, knew one man by name as a suspected drug user.

[31]

The appellant relies on
R. v. Brown
,
    2012 ONCA 225, 286 C.C.C. (3d) 481, as he did
at
    trial,
to support his claim that D.C. Mignardi lacked objectively justifiable
    reasonable and probable grounds to arrest him. As the trial judge noted,
    however, the facts in
Brown
were quite different from this case. In
Brown
,
    two police officers were on general patrol in a police cruiser. They
had no prior knowledge of either of the participants
in
    a suspected drug transaction on a street corner. One officer  but not the
    other  saw the suspected seller, the accused, extend his arm as if to hand
    over some drugs, but the suspected buyer did not reciprocate and instead walked
    away abruptly. On these facts, this court concluded that the officers
    observations did not provide any objective basis upon which to believe that
    the two persons were engaged in a drug transaction: at para. 15.

[32]

Here, however, the officers investigating the
    appellant
had prior knowledge about him
and
    the two suspected drug purchasers and they had had the appellant under surveillance
    for several days. On these facts, I see no error in the trial judges
    conclusion that D.C. Mignardi had reasonable and probable grounds to arrest the
    appellant without a warrant. A reasonable person standing in the shoes of D.C. Mignardi,
    with the same training and experience as her in investigating drug cases and
    seeing hand-to-hand transactions, and with the same knowledge of her
    surveillance of the appellant and what she had seen in the parkette, could in
    all the circumstances reasonably believe that drug transactions had occurred. The
    arrest was therefore lawful and the police did not breach s. 9 of the
Charter
.

[33]

It follows from my conclusion that the
    appellants arrest was lawful that the search incident to that arrest was also lawful.
    The appellant does not argue otherwise. The police could search the appellant incident
    to arrest to locate and preserve evidence and to ensure the safety of the
    police, the public, and the appellant  particularly when D.C. Mignardi saw a
    handgun in the waistband of his pants as he was arrested: see
Cloutier v.
    Langlois
, [1990] 1 S.C.R. 158, at p. 186;
R. v. Golden
, 2001
    SCC 83, [2001] 3 S.C.R. 679, at paras. 74-75; and
R. v. Nolet
,
    2010 SCC 24, [2010] 1 S.C.R. 851, at para. 49. The police thus did not breach
    s. 8 of the
Charter
.

Issue #2: Were the police justified in delaying the appellants
    access to counsel?

(a)

Overview

[34]

The second issue is whether the police were
    justified in delaying the appellants access to counsel. As I will elaborate, both
at trial
and on appeal, the Crown conceded
    that the breach of s. 10(b) of the
Charter
lasted from when the appellant
    was arrested, at 3:55 p.m., to 7:40 p.m.  a delay of three hours and
    forty-five minutes, or one hour and twenty minutes after both search warrants had
    been executed at 6:20 p.m.
At the same time,
the
    Crown sought to uphold the trial judges factual finding that the police had
    case-specific concerns for officer safety and the preservation of evidence that
    justified them delaying access to counsel until after the searches were
    completed. The Crown appeared to view these case‑specific concerns as
    mitigating the overall seriousness of the breach. The appellant agreed with the
    Crown as to the duration of the s. 10(b) breach, but disagreed
that
there were any case-specific concerns for
    officer safety or the preservation of evidence that justified the delay in accessing
    counsel.

[35]

I agree with the Crown that the trial judge could
    find on the evidence that the officers had case-specific concerns about officer
    safety that justified delaying access to counsel until they completed the
    searches. Based on that finding, however, I would hold that the initial delay until
    the completion of the searches at 6:20 p.m. did not infringe s. 10(b). The
    subsequent delay in implementing the right to counsel, from 6:20 p.m. until
    7:40 p.m., did infringe s. 10(b).

(b)

Applicable principles

[36]

Section 10(b) of the
Charter
provides
    that everyone has the right on arrest or detention to retain and instruct
    counsel
without delay
and to be informed of that right (emphasis
    added).

[37]

The jurisprudence has confirmed that s. 10(b) requires
    the police to inform a detainee of the right to speak to counsel immediately (an
    informational duty), and if that right is exercised, the police must
    immediately provide the detainee with a reasonable opportunity to speak to
    counsel (an implementational duty):
R. v. Suberu
, 2009 SCC 33,
    [2009] 2 S.C.R. 460, at paras. 38, 42;
R. v. Bartle
, [1994] 3 S.C.R.
    173, at pp. 191-92;
R. v. Rover
, 2018 ONCA 745, 143 O.R. (3d) 135, at
    para. 25; and
R. v. La
, 2018 ONCA 830, 366 C.C.C. (3d) 351, at para.
    38.

[38]

Courts have recognized that specific circumstances,
    including concerns for police safety, public safety, or the preservation of
    evidence, may justify some delay in providing a detainee access to counsel:
Suberu
,
    at para. 42;
Rover
, at para. 26; and
La
, at para. 38. Such
    concerns must be case-specific rather than general concerns applicable to
    virtually any case:
Rover
, at para. 27;
La
, at paras. 39-40. As
    Doherty J.A. explained in
Rover
 decided almost a year after the
    execution of the warrants in this case  the police may delay access to counsel
    only 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:
Rover
,
    at para. 27. Even if such circumstances exist, the police must take reasonable
    steps to minimize the delay in granting access to counsel:
Rover
, at
    para. 27;
La
, at para. 40.

(c)

Application to this case

[39]

At trial,
Crown counsel (not appellate counsel) conceded that the appellants
    section 10(b) rights had been breached by a suspension of his rights until the
    execution of [the] search warrants. The Crown argued that the police were
    justified in delaying the appellants s. 10(b) rights because of case-specific concerns
    for evidence preservation and police safety and submitted that the court should
    consider this in assessing the seriousness of the breach under s. 24(2).
    Defence counsel
at trial
(not appellate
    counsel) did not suggest a different analytical approach. Before this court,
    appellate Crown counsel adopted the same approach, stating in her factum that
    the police decision to delay the appellants access to counsel until the
    search warrants were executed constituted a violation of s. 10(b). Counsel for
    the appellant agreed.

[40]

The trial judge seems to have adopted the Crowns
    approach. He found that the police had case-specific concerns that justified
    delaying the appellants right to counsel in consideration of police/public
    safety and the preservation of evidence. He summarized D.C. Quinlans testimony
    as being
that
there were heightened concerns
    regarding police safety given the arrest involved an accused who possessed a
    loaded firearm, and they did not know if the apartment they were to search,
    where they suspected drugs to be present, was occupied by others. The trial
    judge also found that there was a concern about the possible destruction of
    evidence. Later in his reasons, however, the trial judge ruled that the delay
    in accessing counsel constituted serious misconduct.

[41]

In my view, the trial judge and the parties proceeded
    on the mistaken assumption that a justified delay in accessing counsel breaches
    s. 10(b). That is not the law.

The
    correct approach is reflected by this courts decisions in
Rover
and
R.
    v. Leonard
, 2020 ONCA 802. In
Rover
, Doherty J.A. took no issue
    with the analysis of the trial judge in that case that concerns for officer
    safety and evidence preservation could justify delaying access to counsel: at
    paras. 18, 26-27. He added, however, that the police must have case-specific
    evidence that the police turned their minds to the circumstances
of the case
before delaying access to counsel: at
    paras. 32-33. More recently, in
Leonard
, this court confirmed that a
    reasonable delay in accessing counsel justified by case-specific concerns for
    officer safety does not violate s. 10(b): at para. 15.

[42]

Because the Crowns concession of a breach of s.
    10(b) arising from a justified delay in accessing counsel is an erroneous
    concession of law, this court is not bound by the concession and must analyze
    the situation according to what the law provides:
R. v. Barabash
, 2015
    SCC 29, [2015] 2 S.C.R. 522, at para.
54;
R. v. Shaikh
, 2019 ONCA 895, 148 O.R. (3d) 369, at
    para. 63.

[43]

Applying the correct analytical framework, I now
    turn to consider whether the evidence supported the trial judges conclusion that
    the police had case-specific concerns for police safety and evidence
    preservation that justified delaying access to counsel.

[44]

The appellant asserts
that
there was no case-specific evidence and the police merely followed a
    general practice of delaying access to counsel until the search warrant had been
    executed. He claims the concerns alleged by the police were of a general or
    non-specific nature applicable to virtually every search and therefore cannot
    justify suspending the constitutional right to counsel. He relies on D.C. Pollards
    evidence of the polices general practice of delaying access to counsel until
    after the execution of a search warrant and D.C. Quinlans characterization of that
    practice as just smart policing. D.C. Quinlan also testified that it is
    always better from an officer-safety standpoint to have the target in custody
    before executing the search warrant. D.C. Mignardi similarly agreed with the
    suggestion
that
there is always a risk that
    the target could call someone to facilitate destroying evidence.

[45]

This evidence must, however, be considered in
the context of
other evidence that confirmed the
    police had turned their minds to the specific circumstances
of this case
and had a reasonable basis for
    concluding
that
there were concerns for
    officer safety at a minimum. D.C. Mignardi testified that the police had just
    arrested the appellant with a loaded gun and we didnt want to put any of our

our lives in danger by going to a house
    where [the appellant is] able to phone whoever he wants when hes at [the
    police station]. She also testified that the team had specifically
    consider[ed] safety issues when a decision was made to arrest [the appellant]
    before the execution of the search warrants so that his rights would be
    suspended until the search warrants [were] executed. She noted that searches were
    to be conducted at two locations  the storage locker and the apartment  which
    raised particular safety concerns if the appellant could telephone somebody
    before both searches were completed. D.C. Quinlan similarly testified that the
    officer safety concerns were heightened by the firearm recovered from the
    appellant. He highlighted
that
this was not a
    large operation and included only four officers. Cumulatively, this testimony
    provided an evidentiary basis for the trial judges conclusion that the police had
    a reasonable basis to conclude that concerns for officer-safety justified delaying
    access to counsel until the searches were completed.

[46]

Given this conclusion, I need not decide whether
    the police were justified in delaying access to counsel based on case-specific evidence-preservation
    concerns that rose beyond a general or non-specific nature applicable to
    virtually any search. The police-safety concerns alone justified their
    approach.

[47]

To sum up, I conclude that the police did not
    breach s. 10(b) by delaying access to counsel until the searches were completed
    at 6:20 p.m., but they did do so from 6:20 p.m. to 7:40 p.m., when the
    appellant finally called his lawyer.

Issue #3: Should the evidence have been excluded under s. 24(2) of
    the
Charter
?

[48]

The next issue is whether the trial judge erred
    in not excluding the evidence of the gun and drugs under s. 24(2) of the
Charter
.

[49]

A trial judges decision to admit or exclude
    evidence under s. 24(2) of the
Charter
attracts appellate deference
    absent an error in principle, a failure to consider the proper factors, a
    palpable and overriding factual error, or an unreasonable determination:
R.
    v. Just
, 2020 ONCA 362, 388 C.C.C. (3d) 273, at para.
21;
R. v. McGuffie
, 2016 ONCA 365, 131 O.R. (3d) 643, at
    para. 64;
La
, at para.
37; and
R. v. Grant
,
    2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 86, 127.

[50]

Section 24(2) is triggered where evidence is
    obtained in a manner that violates an accuseds
Charter
rights. A s.
    24(2) inquiry examines the impact of admitting evidence obtained in breach of
    the
Charter
on public confidence in the justice system over the long
    term, based on the factors set out in the leading case of
Grant
: (i)
    the seriousness of the
Charter
-infringing state conduct; (ii) the impact
    of the breach on the accuseds
Charter
-protected interests; and (iii)
    societys interest in the adjudication
of the case
on
    the merits. The courts task is to balance the assessments under these three
    inquiries to determine whether, considering all the circumstances, admission
    of the evidence would bring the administration of justice into disrepute:
Grant
,
    at para. 71;
R. v. Le
, 2019 SCC 34, 434 D.L.R. (4th) 631, at paras.
    139-142.

[51]

Section 24(2) does not create an automatic
    exclusionary rule when evidence is obtained
in a
    manner that infringes
a
Charter
right. The accused bears the
    onus of establishing that, having regard to all the circumstances, the
    admission of the evidence would bring the administration of justice into disrepute:
R. v. Hobeika
, 2020 ONCA 750, 153 O.R. (3d) 350, at para. 76;
R.
    v. Lenhardt
, 2019 ONCA 416, 437 C.R.R. (2d) 328, at para. 11; and
R.
    v. Fearon
, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 89.

Obtained in a manner

[52]

Courts have taken a very broad reading and
    generous view of the phrase obtained in a manner under s. 24(2), the
    threshold requirement of whether the admission of the evidence would bring the
    administration of justice into disrepute:
Hobeika
, at para. 77;
R.
    v. Pileggi
, 2021 ONCA 4, 153 O.R. (3d) 561, at para. 101. The
    jurisprudence has accepted that courts should examine the entire chain of
    events between the accused and the police:
R. v. Pino
, 2016 ONCA
    389, 130 O.R. (3d) 561, at para. 72;
Pileggi
, at para. 101. The
    connection between the breach and the discovered evidence may be causal,
    temporal, or contextual, or any combination of these three connections, as
    long as the connection is not too tenuous or too remote:
Pino
, at
    para. 72;
Pileggi
, at para. 101; see also
R. v.

Wittwer
,
    2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21; and
Rover
, at para. 35.

[53]

Here, before this court, the parties accepted that
    the evidence was obtained in a manner that infringed the appellants
Charter
rights. The Crown did not dispute this, while the appellant submitted
that
there was a contextual and temporal connection
    between the s. 10(b) breach and the impugned evidence. The trial judge made no
    express finding on this point. His reasons appear to have accepted
that
this criterion was satisfied and then addressed
    whether the evidence should be admitted under the test in
Grant
.

[54]

I pause here to note that when addressing the
    impact of the breach  the second
Grant
factor  the trial judge said
    that there is no causal or indeed
temporal connection
between the s.
    10(b) breach and the evidence obtained (emphasis added). Similarly, in his
    sentencing reasons, the trial judge stated that the firearm and drugs [were]
    not
contextually
, causally or [
temporally]
connected to the
    breach of delaying contact with counsel (emphasis added). If these comments
    are read literally, there would have been no need to apply the
Grant
test
    because the threshold for applying s. 24(2) would not have been met.

[55]

The trial judge may have misspoken when he said
    there was no temporal or contextual connection between the evidence and the s.
    10(b) breach. If he did not misspeak, he was in error. Although the evidence was
    not causally connected to the breach of s. 10(b) because it was discovered
    before the breach, there was no basis to find
that
it
    was not temporally or contextually connected to the breach or that the
    connection was tenuous or remote. The discovery of the evidence and the s.
    10(b) breach all arose from the same transaction  the appellants arrest: see
Pino
,
    at para. 73. The connection was temporal because the discovery of the evidence
    was relatively close in time to the s. 10(b) breach and part of the continuum
    of events arising from the appellants arrest: see
Pino
at para. 74.
    The connection was also contextual because the discovery of the evidence arose out
    of the same events flowing from the appellants arrest that led to the s. 10(b)
    breach: see
Pino
, at para. 74. Neither connection was tenuous or
    remote.

[56]

I would therefore find that s. 24(2) of the
Charter
was engaged. I now turn to the three lines of inquiry under
Grant
.

(i)

The seriousness of the
Charter
-infringing state conduct

[57]

The first line of inquiry considers the
    seriousness of the police conduct that infringed the
Charter
and was
    connected to the discovery of the evidence. It asks whether the police engaged
    in misconduct from which the court should dissociate itself, such as where the
    departure from
Charter
standards was significant or where the police
    knew or should have known that their conduct breached the
Charter
; or
    rather whether the breach was merely
of a
technical
nature
or reflected an understandable mistake,
    in which case dissociation is much less of a concern:
Grant
, at paras.
    72-74;
R. v. Harrison
, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 22;
    and
R. v. McSweeney
, 2020 ONCA 2, 384 C.C.C. (3d) 265, at para. 78.

[58]

Courts should dissociate themselves from
    evidence obtained through a negligent breach of the
Charter
:
Le
,
    at para. 143; see also
Grant
, at para. 75. A systemic problem or
    pattern of
Charter
-infringing conduct is an aggravating factor that
    supports exclusion:
Grant
, at para. 75;
Harrison
, at para.
    25.

[59]

Here, the trial judge found that the police
    breached s. 10(b) by delaying access to counsel until after the execution of
    the warrants and then for another hour and twenty-minutes. He also considered
    the police conduct in failing to inform the appellant of the reason for the
    delay. He distinguished
Rover
because he found the delay in accessing counsel
    here was because of case-specific concerns for police safety and evidence
    preservation. He concluded that although the s. 10(b) breach and the failure to
    inform the appellant of the reason for the delay were not done in bad faith,
    they involved serious misconduct, which in the analysis favours exclusion.

[60]

I agree with the trial judges final assessment
    that the s. 10(b) breach was serious, even though I would find the breach in
    accessing counsel as having been briefer than the trial judge found. I also
    agree that the polices failure to inform the appellant of the reason for the
    delay in accessing counsel aggravated the s. 10(b) breach. This was a
    significant breach of established obligations under s. 10(b).

[61]

I would add that the seriousness of the s. 10(b)
    breach arising from the one hour and twenty minutes of unjustified delay in
    accessing counsel must be understood in
the
    particular context of
this case. The police had
already
    delayed
access to counsel for two hours and twenty-five minutes to
    execute the warrants. Once the searches were completed, the police should have acted
    with particular urgency in providing the appellant access to counsel. Instead, they
    let him wait in his cell without access to counsel for another hour and twenty
    minutes.

[62]

I acknowledge that the
police took
some
steps to minimize
    the delay the appellant experienced by obtaining the search warrants before he was
    arrested. This factor was highlighted in
Rover
as mitigating the
    seriousness of the breach by helping to minimize the delay in accessing counsel:
Rover
, at para. 39.

[63]

I also note that the delay in accessing counsel
    after the searches were completed was left largely unexplained. There is no
    evidence to permit a further finding  there is no evidence of a pattern of
    ignoring constitutional rights during detention, of a deliberate decision to do
    so, or any evidence of other constitutional breaches while the appellant was
    detained. This lack of evidence bears on whether the appellant has met his onus
    under s. 24(2) of establishing that the admission of the evidence would bring
    the administration of justice into disrepute:
Hobeika
, at para. 76;
Lenhardt
,
    at para. 12.

[64]

The only evidence in the record pointing in any
    direction appears to suggest that
the failure to
provide
    access to counsel after execution of the search warrants was a fact-specific
    oversight, albeit a serious one. D.C. Mignardi testified that after executing
    the warrants she headed back to the station and started working on the  case
    by inputting information, such as the record of the arrest, in the police
    computer system. She explained
that
there is
    pressure to make sure all your notes [are] in for disclosure purposes right
    away. She did not speak to the appellant. At some point, she learned from
    another officer that the appellant wanted to contact his lawyer. At 7:40 p.m., she
    helped him to do so. She then returned to inputting information in the police
    computer system. She testified that the police did not set out to intentionally
    delay the appellants right to counsel and there was no advantage to the
    investigation or prosecution in doing so. She testified that she was trying to
    fulfill the appellants
Charter
rights, and specifically, his right to
    counsel.

[65]

In mentioning this evidence, I should not be
    taken as suggesting that the police can delay access to counsel to input
    information in their computer system or that an officers assertion
that
they did not intend to breach constitutional
    rights is itself determinative. I simply highlight that the only evidence in
    the record appears to suggest that what happened here was a fact-specific
    oversight and not a systemic or intentional breach of the appellants s. 10(b)
    rights.

[66]

Even if unintentional, what happened here reflected
    an unacceptably negligent approach to safeguarding the appellants s. 10(b) rights.
    The police conduct violated an established constitutional obligation. As this
    court has noted, [t]he law around s. 10(b) is clear and long-settled. It is
    not difficult for the police to understand their obligations and carry them
    out:
R. v. Noel
, 2019 ONCA 860, at para. 34. The officers collective
    negligence in failing to uphold the appellants s. 10(b) rights precludes
    a finding of good faith: see
Le
, at paras. 143, 147;
Pileggi
,
    at para. 119; and
Hobeika
, at para. 81.

[67]

A serious breach of an established
    constitutional right supports exclusion of evidence under s. 24(2), even if the
    breach is not deliberate or systemic or part of a pattern of police misconduct:
Harrison
, at paras. 24-25;
R. v. Paterson
, 2017 SCC 15,
    [2017] 1 S.C.R. 202, at para. 44; and
Hobeika
, at para. 82. That
    principle applies here.

(ii)

Impact of the breach on the appellants
Charter
-protected  interests

[68]

The second line of inquiry under s. 24(2) asks
    whether and to what extent the
Charter
breach actually undermined the
    interests protected by the right infringed:
Grant
, at para. 76;
Le
,
    at para. 151. This involves identifying the interests protected by the
Charter
rights and evaluating how seriously the
Charter
infringements
impacted
those interests. The more serious the
    impact on
Charter
-protected interests, the greater the risk that
    admission of the evidence may signal to the public that
Charter
rights, however high-sounding, are of little actual avail to the citizen,
    breeding public cynicism and bringing the administration of justice into
    disrepute:
Grant
, at paras. 76;
Le
, at para. 151.

[69]

The s. 10(b) right to retain and instruct
    counsel without delay and to be informed of that right allows a detainee to
    obtain advice about how to exercise their rights relevant to their legal
    situation:
R. v. Taylor
, 2014 SCC 50, [2014] 2 S.C.R. 495, at para.
    21;
R. v. Wong
, 2015 ONCA 657, 127 O.R. (3d) 321, at para. 77. This
    helps ensure that a detainees choice to speak to the police is free and
    informed and guards against the risk of involuntary self-incrimination:
Suberu
,
    at para. 40;
R. v. Sinclair
, 2010 SCC 35, [2010] 2 S.C.R. 310, at
    para. 25; and
Wong
, at para. 77. As Doherty J.A. explained in
Rover
,
    the right to counsel is a lifeline for detained persons that provides
    detainees with both legal advice and psychological benefits by conveying to
    them
that
they are not at the mercy of the
    police while detained: at para. 45; see also
Pileggi
, at para. 123.

[70]

Here, the trial judge found that the s. 10(b)
    breach had minimal negative impact on the appellants
Charter
-protected
    interests because he found no causal or temporal connection between the s.
    10(b) breach and the evidence obtained. I agree there was no causal
    connection, but as I have explained, the trial judge either misspoke or erred
    in finding no temporal connection.

[71]

In
appropriate
cases,
    the lack of a causal connection can mitigate the impact of the infringement:
Grant
,
    at para. 122;
Rover
, at para. 43; and
Pileggi
, at para. 120.
    I also note that the police did not
try to
elicit
    information from the appellant, thus avoiding an aggravating feature found in
    several other cases: see e.g.,
La
, at paras. 47-48;
McSweeney
,
    at paras. 79-80;
R. v. Manninen
, [1987] 1 S.C.R. 1233, at pp. 1242-43,
    1245; and
R. v. Prosper
, [1994] 3 S.C.R. 236, at pp. 280, 284.

[72]

I also agree with the appellant that the trial
    judge erred in describing the impact of the breach of s. 10(b) on the
    appellants
Charter
-protected interests as minimal. The appellant was
    deprived of the lifeline of counsel without justification for an hour and
    twenty minutes, after he had
already
been
    deprived of access to counsel with justification for two hours and twenty-five
    minutes. He was also not told the reason for the delay.
[1]
This breach
impacted the appellants
Charter
-protected
    interests, even if the police did not aggravate the breach by seeking to elicit
    information from him.

[73]

The impact of the s. 10(b) breach on the
    appellants
Charter
-protected interests was
nevertheless
less significant than
other cases in which
evidence
    has been excluded under s. 24(2), such as:

-

Rover
, in which the accused was denied
    access to counsel for almost six hours, with no explanation as to why the
    police had refused him access to counsel and without an indication of when he
    might be allowed to do so, leading to significant psychological pressure
    being brought to bear on him: at paras. 44, 46;

-

La
, in which the accused was denied access
    to counsel for over eight and a half hours, during which
time
the police tried to obtain an incriminating
    statement from him: at paras. 7, 47-48; and

-

Noel
, in which the police did not even
    try to contact counsel on the accuseds behalf until three hours after his
    arrest and it was never confirmed that the accused actually spoke to counsel:
    at paras. 29, 31.

[74]

The impact of the breach on the appellants
Charter
-protected
    interests was also comparable to, or less significant than, other cases in
    which evidence has been admitted under s. 24(2), such as:

-

Hobeika
, in which there was an
    unexplained failure to provide access to counsel for just over four hours: at
    para. 79;

-

Pileggi
, in which there was a three-hour
    delay in providing access to counsel, the breach was unintentional and
    occurred largely due to a lack of communication between police officers, and no
    one tried to elicit information from the accused, although the police made
    reasonable efforts early on to contact duty counsel and kept the accused apprised
    of their attempts to contact counsel on his behalf: at paras. 114, 117-18 and
    124.

[75]

Placing the impact of the s. 10(b) breach here
    along the continuum of s. 10(b) breaches in past cases, I would describe
    the impact of the s. 10(b) breach on the appellants
Charter
-protected
    interests as moderate.

(iii)

Societys interest in the adjudication
of the case
on the
    merits

[76]

The last line of inquiry considers factors such
    as the reliability of the evidence and its importance to the Crowns case. It asks
    whether the truth-seeking function of the criminal trial process would be
    better served by the admission of the evidence or by its exclusion:
Grant
,
    at para. 79;
McSweeney
, at para. 81. Reliable evidence critical to the
    Crowns case will generally pull towards inclusion:
Harrison
, at
    paras. 33-34;
McGuffie
, at para. 62; and
McSweeney
, at para.
    81.

[77]

Here, the gun and drugs are reliable evidence and
    essential to the Crowns case for what are
extremely
serious
    offences. The admission of this evidence would better serve the truth-seeking
    function of the criminal trial process than its exclusion. I therefore agree
    with the trial judge that societys interest in the adjudication
of the case
on the merits favours the admission of
    this evidence.

Balancing the factors

[78]

The final step in the s. 24(2) analysis involves
    balancing the factors under the three lines of inquiry to assess the impact of
    admission or exclusion of the evidence on the long-term repute of the
    administration of justice. Such balancing involves a qualitative exercise, one
    that is not capable of mathematical precision:
Harrison
, at para. 36.
    As Doherty J.A. recently noted in
Hobeika
, [t]he nature of the s.
    24(2) inquiry means, in some cases, different judges will reasonably arrive at
    different conclusions with respect to admissibility: at para. 89.

[79]

Here, I have concluded that the evidence was
    properly admitted under s. 24(2). I say this for several reasons. The breach
    of s. 10(b), although serious, appears to have been situation-specific and
    isolated, rather than institutional or systemic. It has not been established
    that the breach was deliberate or intentional. The breach only moderately
impacted
the appellants
Charter
-protected
    interests. The evidence, consisting of the loaded gun and drugs, was obtained
    through a lawful search incident to arrest and, because it was not causally
    related to the s. 10(b) breach, was not compromised by the breach of s. 10(b).
    In these circumstances, excluding the evidence would only punish the police 
    which is not the purpose of s. 24(2)  and would damage, rather than vindicate,
    the long‑term repute of the criminal justice system:
Grant
, at
    para. 70;
Hobeika
, at para. 90; and
Pileggi
, at para. 127. It
    would allow an apparently unintentional, situation-specific police-slip that
    had only a moderate impact on
Charter
-protected interests to lead to
    the acquittal of an armed and dangerous drug trafficker in a city already
    plagued by gun violence.

[80]

Like the trial judge, I thus conclude that the admission
    of the evidence would not bring the administration of justice into disrepute.

[81]

I would dismiss the conviction appeal.

Issue #4: Did the trial judge err in his sentencing
    analysis?

[82]

Finally, the appellant submits that the trial
    judge erred by declining to reduce the sentence he imposed (6 years, less
    credit for pre-sentence custody calculated at 22 months) because of the s.
    10(b) violations. The appellant was 22 years old when he committed the
    offences.

[83]

An appellate court can interfere with a sentence in only two situations:
    (1) if the sentence is demonstrably unfit; or (2) if the sentencing judge made
    an error in principle that had an impact on the sentence:
R. v. Friesen
, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 26;
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras.
    11, 41 and 44; and
R. v. Suter
, 2018 SCC 34,
    [2018] 2 S.C.R. 496, at para. 24.

[84]

The appellant does not argue that the sentence
    was demonstrably unfit. Instead, he submits that the trial judges refusal to reduce
    the sentence because of the s. 10(b) breach was an error in principle that
    justifies appellate intervention. As he did at first instance, the appellant
    relies on the Supreme Court of Canadas decision in
R. v. Nasogaluak
,
    2010 SCC 6, [2010] 1 S.C.R.
206, in support of
his
    submission. That case upheld a sentence reduction for the offences of impaired
    driving and flight from the police when the police used excessive force in
    arresting the accused and breached his
Charter
rights during his
    arrest and detention. Here, by analogy, the appellant asserts that the s. 10(b)
    breach was contextually and temporally connected to his arrest and thus
    warranted a sentence reduction.

[85]

I do not accept this submission.

[86]

A sentencing judge crafting a fit sentence must consider
    all the circumstances of the offence and offender. This includes state
    misconduct, including a
Charter
breach, if it relates to the
    circumstances of the offence and the offender. When, however, the state
    misconduct does not relate to the circumstances of the offence or the offender,
    the accused cannot seek a remedy through the sentencing process:
Nasogaluak
,
    at paras. 3-4, 46-49;
R. v. Donnelly
, 2016 ONCA 988, 135 O.R. (3d)
    336, at paras. 150-54.

[87]

Here, the trial judge considered
Nasogaluak
but
    determined that the circumstances of the s. 10(b) breach did not relate to the offences
    or the offender
in a way that could be
considered
    in sentencing. He held there was no additional harm or prejudice caused by the
    s. 10(b) breach that would act as a mitigating circumstance. He referred to his
    ruling on the
Charter
application that the discovery of the evidence was
    not causally connected to the breach, and thus did not align with the offences
    or to the offender. In support of that conclusion, he cited
R. v. Glykis
(1995), 24 O.R. (3d) 803 (C.A.), which also involved a s. 10(b) breach arising
    from a delay in accessing counsel. Dubin C.J.O. held that the s. 10(b) breach in
    that case should not reduce the sentence because it did not mitigate the
    seriousness of the offence or constitute a form of additional punishment or
    hardship for the accused.

[88]

The trial judges conclusion that the s. 10(b) breach
    here did not warrant a sentence reduction attracts
deference
.
    His conclusion that the s. 10(b) breach did not relate to the circumstances of
    the offences or the offender to affect the appropriate sentence is reasonable.
    The breach of s. 10(b) did not alter the circumstances of the offences.
    Although the delay in accessing counsel no doubt had some effect on the
    appellant, there was no evidence about this.
As a
    result,
I see no error in principle warranting appellate
    intervention.

[89]

I would therefore grant leave to appeal the
    sentence but dismiss the sentence appeal.

E.

conclusion

[90]

I would dismiss the conviction appeal, allow
    leave to appeal the sentence, and dismiss the sentence appeal.

Released: May 7, 2021 B.W.M.

M.
    Jamal J.A.

I
    agree. B.W. Miller J.A.

I
    agree. Coroza J.A.





[1]
Recent
    case law suggests that the failure of the police to inform an accused of the
    reasons for the delay in providing access to counsel, where such delay is
    justified, or to advise the accused when they might be allowed to speak to
    counsel, may constitute an independent breach of s. 10(b) of the
Charter
: see
R.
    v. Rover
, 2018 ONCA 745, 143 O.R. (3d) 135, at
    paras. 45-46 (seeming to agree with the trial judges finding at 2016 ONSC 4795,
    at para. 70, that the police should have advised the accused that they were
    suspending his s. 10(b) right);
R. v. Shang En Wu
, 2017 ONSC 1003, 35
    C.R. (7th) 101, at para. 78. However, since this appeal was not argued on this
    basis, I refrain from further comment.


