



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Leonard, 2020 ONCA 802

DATE: 20201215

DOCKET: C67803

Feldman, Tulloch and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Leonard

Appellant

Erik Van Drunen, for the appellant

Marina Elias, for the respondent

Heard: December 1, 2020, by video conference

On appeal from the conviction entered on February 27,
    2019, by Justice Ian F. Leach of the Superior Court of Justice.

REASONS FOR DECISION

Introduction

[1]

The appellant, Mr. Leonard, was convicted of one count of trafficking of
    a controlled substance, contrary to section 5(1) of the
Controlled Drugs
    and Substances Act
, S.C. 1996, c. 19

(
CDSA
), and one count of possession of a controlled substance
    for the purposes of trafficking, contrary to section 5(2) of the
CDSA
.
    He appeals his convictions, arguing that the trial judge erred in his s. 10(b)
Charter
analysis.

[2]

As will be explained, we see no error in the trial judges s.10(b)
    analysis. He correctly articulated and applied the test to determine whether
    the deliberate delay of facilitating access to counsel was justified in the
    circumstances. Accordingly, we dismiss the conviction appeal.

Background Facts

[3]

Investigators with the Stratford Polices Street Crime Unit (SCU) suspected
    that Mr. Leonard supplied cocaine to a street-level trafficker in Stratford,
    Ontario. The officers prepared a high-risk takedown of Mr. Leonard because a
    confidential informant disclosed that he possessed a long firearm. At 22:35 on
    June 4, 2016, officers arrested Mr. Leonard at gunpoint at a traffic stop. The
    officers conducted a search incident to arrest and found 56g of cocaine in his
    shorts and two mobile phones in his vehicle. No gun was found as a result of
    the search. Mr. Leonard was advised of his rights, and he immediately expressed
    a desire to speak with counsel.

[4]

Mr. Leonard was transported to the police station, where at
    approximately 22:55, Officer McMillan left a voicemail for Mr. Leonards
    counsel of choice, Arakua Lamptey.  Upon learning that Ms. Lamptey was
    unavailable, Mr. Leonard asked to speak to a different lawyer, Amy Robern.
    Officer McMillan placed a call to Ms. Robern at approximately 22:59 but did not
    reach her. Again, Officer McMillan left a voicemail.  Mr. Leonard then
    requested to speak to duty counsel, and at approximately 23:16, Officer
    McMillan left a voicemail message on the duty counsel hotline requesting that a
    lawyer call back and speak to Mr. Leonard.

[5]

At approximately 23:00, the ranking officer of the SCU, Officer Clarke, decided
    to apply for a search warrant to be executed at Mr. Leonards residence. The
    fact that a search warrant was being sought was subsequently communicated to
    Officer McMillan, along with instructions that Mr. Leonard should not be
    permitted to speak with counsel for the time being. When duty counsel called
    back at 23:38, he was advised by Officer McMillan that he could not speak to
    Mr. Leonard because of an outstanding warrant.

[6]

Officer Serf prepared a search warrant application and faxed it to the
    justice of the peace at approximately 00:54 on June 5, 2016. Officer Serf then
    attended in the cellblock at the police station with Officer Weyers to
    interview Mr. Leonard. From 01:59 to 02:05, the officers questioned Mr.
    Leonard. Officer Serf testified that the goal of this questioning was to
    determine whether the police would discover a firearm at Mr. Leonards residence
    when they executed the search warrant and if anyone else was expected to be in
    the home. In addition to these questions, the officers also asked about the
    presence of marijuana and other drug paraphernalia at the house.

[7]

At approximately 03:00, a justice of the peace authorized the Stratford
    Police to execute the search warrant at Mr. Leonards residence at 07:00.
    Officer Clarke then instructed Officer McMillan to facilitate Mr. Leonards communication
    with duty counsel. At approximately 03:10, Officer McMillan called duty counsel
    and left a voicemail. Mr. Leonard spoke with duty counsel at approximately
    03:21. The total delay in speaking to counsel was about 3.5 hours.

[8]

At a blended trial and
voir dire,
the trial judge found that
    police breached Mr. Leonards s. 10(b) rights when they questioned him in the
    holding cellblock. The Crown conceded this breach and indicated that it had no
    intention of adducing into evidence Mr. Leonards statements or the fruits of
    the resulting search of Mr. Leonards residence. The trial judge found that the
    delay of Mr. Leonard's right to speak to counsel was constitutionally compliant
    because it responded to the case's specific circumstances.

[9]

The trial judge declined to also exclude the cocaine evidence that was
    found on the appellants arrest  pursuant to s. 24(2) of the
Charter
,
    reasoning that the s. 10(b) breach occasioned by the interview in the cellblock
    fell within the mid-range of seriousness, had little or no impact on Mr.
    Leonards
Charter
-protected interests, and that societys interest in
    an adjudication on the merits favoured the admission of this reliable and
    non-conscriptive evidence.

Analysis

[10]

Mr.
    Leonard raises the following grounds of appeal:

1.

The trial
    judge erred in his s. 10(b) analysis by not considering whether the officers
    decision to withhold counsel was reasonable; and

2.

The trial
    judge misapprehended the evidence by failing to consider Officer Clarkes
    testimony suggesting that it was common practice for police to delay access
    to counsel when preparing search warrants for arrested persons homes and by
    finding that no s. 10(b) breach occurred because police had turned their minds
    to the specific circumstances at hand.

[11]

We
    are not persuaded by these arguments.

[12]

Regarding
    the first ground of appeal, the trial judge was alive to the concern that any
    delay in granting access to counsel must be reasonable. Indeed, he specifically
    referenced that the delay must be reasonable when he articulated the test to
    determine whether the deliberate delay of facilitating access to counsel was
    justified. He then conducted a detailed review of the circumstances of this
    case and found a demonstrated and justified basis for the polices actions based
    on concerns for officer safety due to credible information about an outstanding
    firearm. Implicit in his reasoning was a finding that the police acted
    reasonably.

[13]

With
    respect to the second ground of appeal, Officer Clarke referred to a common
    practice of police delaying access to counsel when preparing search warrants
    for arrested persons homes. However, that statement has to be considered in
    the context of other evidence that demonstrated that the police had turned their
    minds

to the specific concern about a long firearm being in Mr.
    Leonards residence. That evidence included: the fact that the police engaged
    in a high-risk takedown because they were concerned about the firearm; the
    discussions that took place among the officers about delaying Mr. Leonard's
    contact with counsel because of concerns about the firearm; the interview in
    the cellblock included questions about the firearm; and Officer Clarkes
    testimony that his primary motivation in delaying contact between Mr. Leonard
    and counsel was public and police safety.

[14]

The
    facts of the case at bar are distinguishable from the facts of
R. v. Rover,
2018 ONCA 745, 143 O.R. (3d) 135, which was relied on by Mr. Leonard. In
    that case, there was no evidence that any of the officers turned their mind to
    the specific circumstances of this case before deciding that the appellant would
    be arrested and denied access to counsel for several hours while the police
    sought, obtained, and executed a search warrant:
Rover,
at para. 32.

[15]

Based
    on the foregoing, we see no error in the trial judges conclusion that the
    delay in Mr. Leonard speaking to duty counsel was not a s.10(b) violation. Given
    this conclusion, it is unnecessary to undertake a fresh s. 24(2) analysis, as
    Mr. Leonard does not take issue with the s.24(2) analysis conducted by the
    trial judge on the conceded s.10(b) breach.

Disposition

[16]

The
    appeal is dismissed.

K. Feldman
    J.A.

M. Tulloch
    J.A.

C.W.
    Hourigan J.A.


