




C
OURT
    OF APPE
AL FOR ONTARIO

CITATION: R. v. Pileggi, 2021 ONCA 4

DATE: 20210107

DOCKET:
C67080

Doherty,
    van Rensburg and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alceste Pileggi

Appellant

Erin Dann and Sarah Weinberger, for the
    appellant

Kevin Wilson and Sam Weinstock, for the
    respondent

Heard: October 1, 2020 by videoconference

On appeal from the convictions entered by
    Justice Annette Casullo of the Superior Court of Justice on April 3, 2019.

Trotter
    J.A.:

A.

introduction

[1]

The appellant was convicted of a single count of
    possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of
    the
Controlled Drugs and Substances Act
,
S.C. 1996, c. 19

(
CDSA
).

[2]

During the execution of a search warrant, the
    police found a kilogram of cocaine in the appellants basement. At trial, the
    appellant did not dispute that he possessed cocaine for the purpose of
    trafficking. The case turned on an application to exclude evidence obtained
    during the search on the basis that police breached his rights under ss. 8, 9,
    and 10 of the
Canadian Charter of Rights and
    Freedoms
.

[3]

The trial judge dismissed the application. She
    found that: (1) the manner in which the police executed the search warrant did
    not violate the appellants s. 8 rights; (2) the officers decision to handcuff
    the appellant did not violate his s. 9 rights; and (3) the police did not
    violate the appellants right to counsel under s. 10(b), in any of the various
    ways that were alleged. Had she found any
Charter
infringements, the trial judge would not have excluded any of the
    evidence under s. 24(2). The appellant appeals the trial judges ruling.

[4]

I would uphold the trial judges ruling under
    ss. 8 and 9 of the
Charter
. However, I respectfully disagree with two of her conclusions regarding
    s. 10(b). The police violated their duty to hold off by attempting to elicit
    evidence from the appellant before he could retain counsel. Moreover, the failure
    of the police to facilitate contact with the appellants counsel of choice, as
    one of the officers said he would do, combined with the three-hour delay in
    putting the appellant in touch with duty counsel, violated his s. 10(b) rights.
    Notwithstanding these infringements, I would not exclude any evidence
    discovered during the search under s. 24(2) of the
Charter
.

B.

factual overview

[5]

The factual foundation for the
Charter

application
    was based on the evidence called at the preliminary inquiry. The
voir dire

proceeded without any
viva voce
evidence. As discussed below,
    this resulted in certain gaps in the record, especially in relation to one of the
    s. 10(b) issues.

[6]

Based on confidential sources, the police
    believed the appellant was selling oxycodone from his home in New Tecumseth,
    Ontario. On May 3, 2017, the police obtained a tele-warrant to search his home.
    At 1:43 p.m., without first knocking, nine Ontario Provincial Police (OPP)
    officers, at least one (and probably others) with his gun drawn, forcibly
    entered the appellants home. In one way or another, nine officers were
    involved in breaching the door and searching the house.

[7]

Immediately upon entering the house, some of the
    officers went upstairs. The appellant and his wife were in the master bedroom.
    The police handcuffed the appellant but did not handcuff his wife; they ordered
    him to kneel on the floor and permitted her to sit on the bed. Two officers,
    P.C. Black and P.C. Hamilton, remained in the bedroom with them while other
    officers cleared (
i.e.
, performed a safety check) the house, which
    took roughly seven minutes. At that point, another officer, D.C. Wray, came
    into the bedroom and advised the appellant of his right to counsel. The
    appellant said that he wished to speak to a lawyer.

[8]

Officers transported the appellant and his wife to
    the police station separately. The appellants wife spoke to duty counsel
    promptly, at about 3:00 p.m. The appellant did not speak to a lawyer until 5:15
    p.m.

[9]

During the search of the house, the police found
    a large quantity of oxycodone pills, one kilogram of cocaine, drug
    paraphernalia, and $3,695 in Canadian currency. Following the dismissal of his
Charter
application, the trial judge
    found the appellant guilty based on an Agreed Statement of Facts, which
    included his admission to possessing one kilogram of cocaine for the purpose of
    trafficking.

C.

unreasonable search and seizure

(1)

Introduction

[10]

The appellant does not challenge the validity of
    the search warrant; instead, he submits that the manner in which the police
    carried out the search infringed his s. 8
Charter
rights:
R. v. Collins
, [1987] 1 S.C.R. 265, at p. 278. The appellant argues that in
    employing a forced entry, the police used more force than was reasonably
    necessary and acted in accordance with a blanket policy not to knock and
    announce when executing drug warrants. I would reject this submission. The
    police were justified in forcibly entering the house to prevent the destruction
    of evidence, and for safety reasons.

(2)

Evidentiary Background

[11]

Numerous officers testified about the search
    warrant and its execution.

[12]

D.C. Hargreaves swore the Information to Obtain
    the warrant. He was aware that the appellant lived in the house with his wife
    and two young children. In his testimony, D.C. Hargreaves confirmed that the
    appellant had no criminal record. He did not know of any firearms in the house.

[13]

D.C. Hargreaves testified that it was always
    part of their plan to use a battering ram to break down the appellants door
    because drugs can easily be flushed down the toilet. This applied to most
    drugs, except perhaps marijuana. About 90% of the drug warrants D.C. Hargreaves
    had executed involved forced entries. However, he disagreed with the suggestion
    that the OPP had a blanket policy of effecting forced entries whenever they executed
    search warrants for drugs. Rather, practical concerns about the destruction of
    evidence guided his approach. For example, he said: If we were knocking on
    drug trafficking doors, Im going to suggest that we would never seize
    cocaine.

[14]

Sgt. Buligan was the lead officer in the
    execution of the warrant. He was assisted by nine officers. On the day in
    question, he was short-staffed. Because some of his officers had not received
    training on executing search warrants, he enlisted the assistance of seven officers
    from the OPPs Emergency Response Team (ERT).

[15]

Sgt. Buligan testified that, based on their
    investigation, they were concerned about the loss of evidence. That is why they
    forcibly entered the appellants house. He disagreed that he had a blanket
    policy of using a forced entry in searches involving any drug; he too pointed
    to marijuana as an exception.

[16]

Sgt. Buligan explained that other factors are at
    play, including the quantity of drugs, as well as the size and layout of the
    location to be searched. Sgt. Buligan had executed searches in residences with similar
    layouts as the appellants two-story house.  He observed: Im aware that there
    are two washrooms, upstairs and downstairs, sothese types of houses are the
    types of houses where Ive had drugs flushed down the toilet when executing
    warrants.

[17]

There was confusion in the evidence about whether
    the front door of the appellants house was locked when the police arrived to
    execute the warrant. Sgt. Buligan testified that it is preferable to simply open
    an unlocked door because forced entries are not always successful. He thought
    that the ERT officer with the battering ram, P.C. Sharp, would have checked to
    see if the door was locked. This is what is normally done. Sgt. Buligan did
    not check the door himself; he testified that he was at the rear of the line of
    officers waiting to enter the house.

[18]

In contrast, P.C. Sharp believed that Sgt.
    Buligan checked the door and indicated that it was locked. He said: I dont
    have an immediate recollection in mind, but theres no way I would have
    breached the door without him notifying me to breach the door. P.C. Sharp further
    testified that theres no hard and fast rule [on] how we do a warrant entry. As
    I return to below, he was unaware of the knock and announce rule: see
Eccles v. Bourque
,
[1975] 2 S.C.R. 739, at p. 747 and
R. v.
    Cornell
,
2010 SCC
    31, 258 CCC (3d) 429, at para. 18.

[19]

P.C. Black, another ERT officer, testified that
    they do not always use a forced entry, again denying a blanket policy.

(3)

Analysis

[20]

The police must exercise restraint when
    executing search warrants. This is rooted in statute, the common law, and
Charter
jurisprudence.

[21]

Section 12(b) of the
CDSA
authorizes the police to use as
    much force as is necessary in the circumstances when executing a search
    warrant issued under s. 11. Of more general application, s. 25(1) of the
Criminal Code
, R.S.C. 1985, c. C-46
    uses the same language.

[22]

Police officers executing search warrants must
    knock and announce their presence at the place to be searched. In
Eccles v. Bourque
, at p. 747, Dickson
    J. (as he then was) held that, in the ordinary case, the police should give: (i)
    notice of presence by knocking or ringing the doorbell, (ii) notice of
    authority, by identifying themselves as law enforcement officers and (iii)
    notice of purpose, by stating a lawful reason for entry.

[23]

However, these well-established criteria are not
    absolute:
Eccles v. Bourque
,
at pp. 743-47. Public safety
    (including the safety of police officers), as well as preventing the
    destruction of evidence, may relieve the police of the knock and announce
    requirement:
Cornell,
at para. 20.

[24]

The
Eccles v. Bourque
framework has been
    absorbed into our
Charter

jurisprudence: see
R. v. Genest
, [1989] 1 S.C.R. 59, at
    pp. 85-87, and
R. v. Gimson
, [1991] 3 S.C.R. 692, at para. 693. The Supreme Court addressed the
    issue extensively in
Cornell
.

[25]

In
Cornell
, the police obtained a warrant to search for drugs in a private
    dwelling. The police used a hard entry into the home: they rammed the door
    open and did not knock or announce their presence. A tactical team of nine
    officers entered the house with their weapons drawn, wearing body armour and
    balaclavas. As in this case, once they were inside the Cornell residence, the
    police yelled: Police, search warrant. On the facts of that case, the trial
    judge found that the officers actions were reasonable in the circumstances and
    not in violation of s. 8 of the
Charter
. A majority of the Alberta Court of Appeal agreed.

[26]

In upholding the decision of the Court of Appeal,
    a majority of the Supreme Court addressed the circumstances in which the police
    may dispense with the knock and announce requirement, as well as the approach
    to be employed by judges reviewing the conduct of the police.

[27]

In terms of departures from the knock and
    announce rule, Cromwell J. (for the majority) set out the following
    requirements, at paras. 20 and 23:

·

Where the police depart from the knock and
    announce rule, they must explain why they thought it was necessary to do so.

·

The Crown must lay an evidentiary foundation
    that the police had reasonable grounds to be concerned about the possibility of
    harm to themselves or the occupants, or about the destruction of evidence.

·

The greater the departure by the police from the
    knock and announce rule, the heavier the onus to justify what they did.

·

The evidence to justify such behaviour must be
    apparent in the record and available to the police at the time they acted. In
    other words,
ex post facto
justifications will not suffice.

[28]

In applying these factors, courts must be alive
    to the realities of policing. The police are afforded a certain amount of
    latitude when they decide to enter residential premises, based on information
    that is reasonably available to them. As Cromwell J. said, at para. 24: The
    role of the reviewing court in assessing the manner in which a search has been
    conducted is to appropriately balance the rights of suspects with the
    requirements of safe and effective law enforcement, not to become a Monday
    morning quarterback. Similarly, in
R. v. Rutledge
, 2017 ONCA 635, 387 C.R.R. (2d) 78, at para. 26, this court
    observed that: Omniscience is not a prerequisite for a search to be conducted
    in a reasonable manner.

[29]

Further, in terms of the role of an appellate
    court,
Cornell
prescribes substantial deference to the trial judges findings and assessment
    of the evidence: at para. 25. See also
R. v.
    Hobeika
, 2020 ONCA 750, at para. 45. In
Cornell
,
the majority found that the trial judge committed no error in
    concluding that the search was reasonable. I reach the same conclusion in this
    case.

[30]

The trial judge set out the legal principles
    that guided her decision, drawing heavily on
Cornell
. Her analysis was accurate and comprehensive. The appellant
    challenges the trial judges factual findings, and her application of the
    principles in
Cornell
to the facts of this case. I see no error.

[31]

The Crown at trial advanced both justifications to
    depart from the knock and announce rule: namely, the destruction of evidence
    and officer safety. With respect to the potential loss of evidence, the trial
    judge relied upon the officers evidence that drugs in pill form can be easily
    flushed down the toilet, especially in a two-story house where there are
    readily accessible washrooms on both floors. Citing James A. Fontana and David
    Keeshan,

The Law of Search and Seizure in
    Canada
, 10
th
ed. (Markham: LexisNexis,
    2017), the trial judge said: This is not an idle observation. Drugs are
    notoriously easy to dispose of expediently:
R. v.
    Pileggi
,
2019 ONSC
    2097, at para. 31.  At para. 40 of her reasons, the trial judge also accepted
    Sgt. Buligans evidence that he had no idea where Mr. Pileggi might be in the
    home but believed that wherever he was located, he would have quick and ready
    access to a washroom in which to dispose of the pills, if entry were to be
    announced.

[32]

I would adopt the trial judges analysis on this
    point. The police had reasonable grounds to conclude that an unannounced and
    forced entry was required to prevent the destruction of evidence. Given the
    size and layout of the house, as well as the nature of the drugs in question, there
    was a real likelihood that the appellant would be able to destroy the evidence
    quickly and with ease.

[33]

Turning to safety considerations, the trial
    judge accepted the evidence of P.C. Sharp and P.C. Black about how weapons are
    often present at places where they execute search warrants. As P.C. Sharp
    testified, while there may be no information indicating that weapons may be
    located in the place to be searched, it does not necessarily mean that weapons will
    not be there. The trial judge concluded that safety concerns also justified a departure
    from the knock and announce rule.

[34]

I agree with the trial judge that safety
    concerns also justified the officers forced entry. As noted above, P.C. Black
    testified that in his experience, when executing drug warrants, weapons are
    often discovered in residences. Although there was no information available to
    the officers suggesting that there were firearms located at the appellants
    residence, the allegations involved serious drug charges. The all too typical
    toxic combination of drugs and guns is well known to the police and the courts:
R. v. Wong
, 2012 ONCA
    767, at paras. 11-13;
R. v. Rider,
2013 MBQB 116, 292 Man. R. (2d) 174, at para. 20. Police must be
    entitled to some degree to rely upon their collective experience when
    approaching situations that may endanger their lives. As Cromwell J. held at
    para. 20 of
Cornell
:
    [s]ection 8 of the
Charter
does not require the police to put their lives or safety on the
    line if there is even a low risk of weapons being present.

[35]

In paras. 49-52 of her reasons, the trial judge
    rejected the submission that, instead of making an independent assessment of
    the circumstances they faced, the police simply acted in accordance with a
    blanket policy to conduct forced entries when executing search warrants for
    drugs. The appellant submits that she was wrong to do so. I see no basis upon
    which to upset this factual finding. The trial judges conclusion was supported
    by the uncontradicted evidence of three police officers.

[36]

The fact that the police act in the same way in
    the vast majority of cases presenting similar circumstances does not equate
    with the existence of a blanket policy. There is no impropriety in the police drawing
    on their collective experience when performing the same investigative task, so
    long as they remain open to performing their duties differently should
    circumstances permit.

[37]

In this case, there was evidence that the
    officers made an individualized assessment about the appropriate manner of
    search. At the briefing before executing the search warrant, they decided to
    use a battering ram due to concerns about the potential loss of evidence. As
    noted above, these concerns were pronounced because of contextual
    considerations: the nature of the drugs (oxycodone pills that could be flushed)
    and the layout of the house (two levels with the potential for multiple washrooms).

[38]

The trial judge concluded that there was
    sufficient evidence from the preliminary inquiry that justified the officers
    departure from the knock and announce standard. As she explained, at para.
    53:

During the briefing at the attachment (
sic
)
    the particular circumstances of the search at 83 Warman Street were considered,
    and a plan formed on that basis. Further, the facts known to the police prior
    to entering, along with their experience in carrying out many similar searches,
    supported a forced entry.

This assessment was amply supported
    by the evidence.

[39]

I would dismiss this ground of appeal.

D.

arbitrary detention

[40]

The appellant submits that he was arbitrarily
    detained because he was handcuffed without justification, both in his home and
en route
to the police station. He
    contends that this was improper because he presented no safety concerns. I
    agree with the trial judges conclusion that the police acted reasonably.

[41]

Almost immediately after the police entered the
    home, two officers found the appellant and his wife in the master bedroom. As
    the police approached the bedroom, the appellant was standing with his hands in
    the air. His wife was next to him, holding a coffee cup. With his gun drawn, P.C.
    Black ordered the appellant to kneel on the floor. He complied and said: Dont
    throw me to the ground; Ive had four hip replacements. Another officer, P.C.
    Hamilton, handcuffed the appellant to the rear. P.C. Black advised him that he
    was under arrest for the possession of oxycodone for the purpose of trafficking.
    The officers permitted the appellants wife to sit on the bed and did not handcuff
    her.

[42]

P.C. Hamilton and P.C. Black remained in the
    bedroom with the appellant and his wife while other officers cleared the house.
    Once this was complete, another officer, D.C. Wray, entered the bedroom and
    advised the appellant of his right to counsel. P.C. Hamilton removed his
    handcuffs from the appellant and D.C. Wray put his handcuffs on him. The
    officers swapped the handcuffs because the appellant would be taken to D.C.
    Wrays detachment (where P.C. Hamilton did not work). D.C. Wray decided to use
    his own handcuffs because he knew that he would be dealing with the appellant
    later.

[43]

As the police prepared to transport the
    appellant to the police station, the transporting officer, P.C. Wells,
    performed a pat-down search of the appellant. He found a bottle containing five
    oxycodone pills in his pocket. The appellant was placed in the police cruiser
    where he remained handcuffed until he was processed at the station.

[44]

As already noted, the foundation for the
Charter
application was based solely on the
    preliminary inquiry testimony of several police officers. Defence counsel
[1]
did not suggest to any of them
    that it was unnecessary to handcuff the appellant.

[45]

Nevertheless
,
at trial, the appellant
    argued that the police infringed his rights under s. 9 of the
Charter
by handcuffing him reflexively,
    and not reassessing the situation when the handcuffs were exchanged. The trial
    judge rejected this argument at para. 63 of her reasons:

The use of handcuffs was appropriate during
    the safety check of the house. Thereafter, Mr. Pileggi was being transported to
    the detachment for processing.
Police were acting under proper authority,
    with a valid warrant, and they were entitled to apply handcuffs and keep them
    on until Mr. Pileggi was processed at the detachment
. I find it is of no
    moment that DC Wray switched the first pair of handcuffs with a second pair.
    [Emphasis added.]

[46]

On appeal, counsel seizes on the underlined words
    from this passage. She submits that this aspect of the trial judges reasons is
    wrong in law  the execution of a search warrant does not automatically entitle
    the police to handcuff those located in the place to be searched. I agree. However,
    I cannot agree with the further submission that it was unreasonable to handcuff
    the appellant in his home and in the police car.

[47]

The fundamental problem with this argument is
    that there is no evidence that bears directly on this point. There was evidence,
    discussed above, about the safety issues that informed the method of entry into
    the home, which bore on the trial judges s. 8 analysis. Similarly, the issue
    arose in the evidence dealing with the delay in informing the appellant of his
    rights under s. 10(b). In that context, P.C. Black said that it was not safe to
    do so until the home had been cleared. In contrast, the officers did not field
    questions about the necessity of handcuffs at the house, nor during the
    appellants transport to the station. Indeed, P.C. Hamilton  the officer who
    initially handcuffed the appellant  did not even testify.

[48]

Considering this issue in the broader context, I
    cannot find fault with the trial judges conclusion that there was no
    infringement of s. 9 of the
Charter
. All of the evidence points to the unknown variables the police
    face when they enter a home to execute a search warrant, particularly as it
    relates to the presence of others in the place to be searched (an aspect of
    P.C. Blacks testimony that I return to below). In this case, the evidence
    supports the conclusion that the situation was not safe, or completely under
    control, until the house was cleared.

[49]

The police were also justified in using
    handcuffs once they cleared the house. I disagree with the appellants
    submission that his compliance to that point required the removal of the
    handcuffs. There was no guarantee that he would continue to cooperate with the
    police.

[50]

The appellant submits that, because the police
    did not conduct a pat-down search on him before handcuffing him, they did not
    reasonably believe that he posed any safety concerns. I do not find this
    argument persuasive. Whether or not the appellant should have been subjected to
    a frisk search at that point was not addressed with P.C. Black nor P.C.
    Hamilton. In any event, had the police conducted a pat-down search and found
    nothing, this would not necessarily have precluded them from lawfully placing
    the appellant in handcuffs. As it turned out, the pre-transport search of the
    appellant revealed a bottle of oxycodone in his front pocket.

[51]

It is important to note that the police did not
    handcuff the appellant solely for the purpose of facilitating the safe
    execution of the search warrant; he had also been placed under arrest for a
    serious criminal offence. As Binnie J. accepted in
R.
    v. Asante-Mensah
, 2003 SCC 38, [2003] 2 S.C.R. 3,
    at para. 33, an arrest is a continuing act that involves taking the person
    into custody and by action or words restraining him from moving anywhere
    beyond the arresters control, which continues until a detainee is either
    released or remanded into custody (adopting the definition in
Holgate-Mohammed v. Duke
, [1984] A.C.
    437 (H.L.), at p. 441). This factor contributed to the reasonableness of the
    decision to handcuff the appellant, both at his home and during transport.
    During that time, the appellant was an arrestee and the police were entitled to
    restrain him from moving anywhere beyond their control, both for his own safety
    and the safety of the officers.

[52]

The appellant submits that the arbitrariness of
    the police conduct is evident in the decision to allow his wife to sit on the
    bed, without handcuffs. In my view, it suggests the opposite. The police chose
    to handcuff the person at the centre of their investigation. That was the
    appellant; not his wife. Again, the lack of evidence on this point undermines
    the appellants contention.

[53]

The appellant submits that the decision to
    exchange the handcuffs suggested that they were unnecessary in the first place,
    or that the officers should have reassessed the situation at that juncture. I
    disagree. As noted in para. 42 above, the exchange had nothing to do with the
    appellants perceived risk. I agree with the trial judge when she said it was
    of no moment.

[54]

I would dismiss this ground of appeal.

E.

the right to counsel

[55]

The appellant submits that officers infringed
    his s. 10(b) rights in four ways. First, he argues that the police failed to
    fulfill their informational duties by not advising the appellant of his rights
    under s. 10(b) while the house was being cleared. Second, he contends that his
    rights were infringed by the delay in the implementational component by not
    allowing the appellant to contact counsel from his home. Third, the appellant
    submits that Sgt. Buligan infringed s. 10(b) by questioning the appellant
    before he could consult counsel. Last, the appellant contends that the officers
    failure to facilitate the appellants counsel of choice infringed s. 10(b).

[56]

In my view, Sgt. Buligans failure to hold off
    from attempting to elicit evidence from the appellant before he spoke to
    counsel violated his s. 10(b) rights. Additionally, the combined failure of the
    police to facilitate the appellants right to consult counsel of choice and the
    overall delay in placing the appellant in contact with duty counsel further
    violated the appellants rights under s. 10(b).

(1)

The Delay in Providing the Informational
    Component

[57]

The appellant submits that the officers seven
    minute delay in advising him of his right to instruct counsel infringed his
    rights under s. 10(b). The appellant submits that there was no reason why P.C.
    Black or P.C. Hamilton could not have advised the appellant of his s. 10(b)
Charter
rights while they waited for
    the house to be cleared. The appellant submits that their failure to do so
    offended the immediacy requirement in s. 10(b), as discussed in
R. v. Suberu
, 2009 SCC 33, [2009] 2
    S.C.R. 460, at paras. 37-42.

[58]

The evidence does not support this contention.
    The only officer who was asked about this issue was P.C. Black (P.C. Hamilton
    was not called as a witness at the preliminary inquiry). As P.C. Hamilton
    handcuffed the appellant, P.C. Black told the appellant that he was under
    arrest for possession of oxycodone for the purpose of trafficking. In
    cross-examination, P.C. Black insisted that it was not safe to advise the
    appellant of his rights at that point because the bedroom had not been cleared
    and [w]e had no idea if there were any other people in the rest of the
    residence.

[59]

The trial judge accepted this evidence, as she
    explained in para. 82:

It is the context that is important in
    considering the seven-minute delay from the time Mr. Pileggi was arrested, to
    the time he was provided the informational component of his s. 10(b) right.
    Police officers were executing a search warrant using a forced entry.
Searching
    and securing the residence is a legitimate reason for this short delay. I think
    it is reasonable for the police to conduct the search, secure the parties and
    the residence, and in effect, gain control of the situation prior to meeting
    their obligation to inform Mr. Pileggi of his s. 10(b) rights
: see
R. v.
    Strachan
, [1988] 2 S.C.R. 980, at para. 34. Once control of the residence
    was obtained, DC Wray read Mr. Pileggi his rights to counsel immediately. [Emphasis
    added.]

[60]

Counsel for the appellant submits that this
    conclusion is based on an erroneous application of
R.
    v. Strachan
, [1988] 2 S.C.R. 980.
Strachan
involved a delay in the
    implementational component of s. 10(b), not the informational component. In
    reasons concurring with the majority, Lamer J. (as he then was) said, at para.
    34, the delay was justified in preventing any new factors from entering the
    situation until some of the unknowns had been clarified.

[61]

However, the distinction the appellant draws is
    inconsequential. Safety was at the core of Lamer J.s concern in
Strachan
. Public and officer safety may
    impact both the informational and implementational obligations in s. 10(b).
Suberu
addresses this very point in the
    context of the informational component. McLachlin C.J. and Charron J. held, at
    para. 2: The immediacy of this obligation is only subject to concerns for
    officer or public safety, or to reasonable limitations that are prescribed by
    law and justified under s. 1 of the
Charter
.
[2]

[62]

More broadly, the appellant submits that the
    delay was unreasonable. However, on the facts of this case, concerns for
    officer safety justified a brief delay in delivering the informational
    component of s. 10(b). Once the officers secured the premises, they immediately
    turned their minds to the appellant. The delay was a mere seven minutes. This
    was reasonable in the circumstances.

[63]

The trial judge did not err in finding that the
    police did not infringe s. 10(b) by their brief delay in advising the appellant
    of his right to counsel. I would dismiss this ground of appeal.

(2)

The Duty to Hold Off

[64]

The appellant submits that the police failed in
    their duty to hold off in questioning him before facilitating his contact with
    counsel. I agree.

[65]

As already noted, once the house had been
    cleared, D.C. Wray advised the appellant of his s. 10(b)
Charter
rights. The appellant said he
    understood and expressed the wish to call his father to arrange for a lawyer.
    D.C. Wray advised him that he would not be allowed to call his father himself,
    but the police could call on his behalf to ascertain the name of a lawyer. The
    appellant then said that he did not have a lawyer. D.C. Wray advised the
    appellant that he could speak to duty counsel while they attempted to contact
    his father. The appellant seemed agreeable to this course of action. It was at
    this time that the appellant spontaneously said something to the effect that whatever
    the police found belonged to him, and not his wife.

[66]

D.C. Wray escorted the appellant downstairs for
    transport to the police station. Sgt. Buligan intercepted them at the bottom of
    the stairs. He read the search warrant to the appellant. In cross-examination,
    defence counsel suggested to Sgt. Buligan that he was looking for responses
    from him, arent you? He responded: I want him to understand it, a response
    that he understands it.

[67]

At this point in time, Sgt. Buligan did not know
    whether the appellant had been advised of his right to counsel. Sgt. Buligan
    testified that, after reading the search warrant to the appellant, the
    appellant told him that his wife has nothing to do with it. In response, Sgt.
    Buligan asked him whether he would like to tell them where anything was, to
    which the appellant responded no.

[68]

The trial judge concluded that Sgt. Buligan did
    not fail in his duty to hold off questioning until the appellant had consulted
    with counsel. Commenting on the question posed by Sgt. Buligan, the trial judge
    observed at para. 109 that:

On its face this is entirely inappropriate,
    and could certainly push Mr. Pileggis delayed contact with counsel into
    territory bordering on a
Charter
breach.
However, the transcript
    clarifies that while Sgt. Buligan did ask this, it was in direct response to a
    spontaneous statement made by Mr. Pileggi, which was not prompted by a question
[Emphasis added].

[69]

I respectfully disagree with the trial judges
    conclusion on this issue. It is true that the appellant made a spontaneous
    statement, one that was indirectly incriminating. The statement revealed
    knowledge of illegal items in his home, if not control over those items. Since the
    appellant had just been told that he was under arrest for possession of
    oxycodone for the purpose of trafficking, one could infer that he was referring
    to drugs.

[70]

It is debatable whether Sgt. Buligans question
    was in direct response to the appellants utterance. It certainly came immediately
    after the appellants assertion. But the appellants assertion did not call for
    a response. It did not entitle the officer to seek further incriminating
    evidence from the appellant.

[71]

Once a detainee has been informed of his rights
    under s. 10(b) of the
Charter
, and that person indicates that they wish
    to retain counsel, the police have a duty to hold off questioning or otherwise
    attempting to elicit evidence from the detainee:
R.
    v. McCrimmon
, 2010 SCC 36, [2010] 2 S.C.R. 402, at
    para. 17. See also
R. v. Taylor
, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 26;

R. v. Manninen
, [1987]1 S.C.R. 1233, at
    pp. 1242-1244;
R. v. Prosper
, [1994] 3 S.C.R. 236, at pp 269-278. This duty also prevents the
    police from interacting with an accused person, short of questioning, in a
    manner that that triggers a response from the accused  i.e., something that is
    a functional equivalent of an interrogation:
R.
    v. McKenzie
(2002), 167 C.C.C. (3d) 530 (Ont.
    C.A.), at para. 36.

[72]

I need not decide whether reading the contents
    of the search warrant to the appellant was an attempt to elicit evidence.
    Suffice it to say, Sgt. Buligan entered dangerous territory in doing so. The
    law does not require the police to explain the contents of a warrant to
    occupants when a search warrant is executed. Rather, the police must have the
    warrant with them where it is feasible to do so, and  produce it when
    requested to do so:
Criminal Code
, s. 29(1). See also
Cornell
, at paras. 38-43. However, by asking the appellant if he would like
    to tell police where anything was, Sgt. Buligan was seeking incriminating evidence.
    At the time, he did not even know whether the appellant had been advised of his
    right to counsel. He should have asked the officer who accompanied the
    appellant downstairs. This situation called for caution, not hubris.

[73]

The respondent submits that any failure in the
    duty to hold off was fleeting and inconsequential. It is true that the
    appellant declined to answer Sgt. Buligans question. It is also true that the
    question was unsuccessful in eliciting any evidence. However, the breach arose because
    the officer attempted to elicit incriminating information in the first place. In
    other words, it was the purpose of his question, and not the response, that
    violated the duty to hold off. The fact that the question did not yield any
    inculpatory evidence does not neutralize the
Charter

breach. The extent to which the
    violation was fleeting or inconsequential is more properly considered under
    s. 24(2) of the
Charter
.

[74]

I would find that the trial judge erred in
    failing to find this violation of the appellants s. 10(b) rights.

(3)

Facilitating the Right to Counsel at the House

[75]

The appellant submits that he should have been
    afforded the opportunity to consult counsel while he was still in his house,
    before being transported to the police station. I disagree.

[76]

Defence counsel raised this issue during the
    cross-examination of D.C. Wray. He testified that, in his experience over eight
    years of policing, he always waited to facilitate access to counsel until the
    accused person was transported to the police station where they can have a
    private conversation, where we can maintain custody of them. This would not
    have been feasible at the house, which was being searched at the time. The
    appellant was handcuffed; a decision that the trial judge found to be
    reasonable. As explained above, I agree with her conclusion.

[77]

In these circumstances, it is difficult to
    fathom how the police could have accommodated a private conversation at the
    appellants home. Consultation in private is a vital component of the s. 10(b)
    right:
R. v. Playford
,
[1987[ 63 O.R. (2d) 289 (Ont. C.A.),
    at para.
31;
R. v. McKane

(1987), 35 C.C.C. (3d) 481 (Ont. C.A.)
    at p. 134.
The appellants right to consult counsel in
    private would have been compromised by attempting to facilitate contact at the
    house while a search was underway.

[78]

I would dismiss this ground of appeal.

(4)

Delay in Implementation and the Denial of Counsel
    of Choice

[79]

The appellant submits that the police failed in
    their implementational duties by the lengthy delay in facilitating his contact
    with counsel and by failing to arrange contact with his counsel of choice. I
    agree.

[80]

As noted above, D.C. Wray told the appellant
    that he would call the appellants father with a view to contacting a lawyer.
    The appellant was offered access to duty counsel in the meantime. This was at
    1:50 p.m. The appellant was transported to the station, and D.C. Wray remained
    at the scene and continued with the investigation. It was not until he returned
    to the station at 4:55 p.m. that he discovered that the appellant had still not
    spoken to a lawyer. At that time, the appellant accepted an offer to speak to duty
    counsel, who called back at 5:15 p.m. and had a private conversation with the appellant.

[81]

This problem developed because of a lack of
    communication between the officers. D.C. Wray testified that he would have
    expected the transporting officer, P.C. Wells, to attend to this situation.
    However, the record does not show that D.C. Wray took any steps to ensure that
    P.C. Wells had the necessary information to do so. In particular, D.C. Wray had
    no memory of instructing P.C. Wells that the appellant had requested to speak
    to counsel, nor did he recall telling P.C. Wells that he had promised the
    appellant that an officer would call his father to arrange for a lawyer. D.C.
    Wrays notes did not address this issue, and P.C. Wells was not asked about it
    at the preliminary inquiry.

[82]

When the appellant and his wife arrived at the
    station, the police promptly took steps to put them in touch with duty counsel.
    P.C. Jacome called duty counsel at 2:39 p.m. Duty counsel called back at 3:00
    p.m. to speak to Ms. Pileggi. He told P.C. Jacome that he would not be able to
    speak to the appellant and that P.C. Jacome should call back in an hour when
    another lawyer would be available. P.C. Jacome decided to call back almost
    immediately, making her second call at 3:05 p.m. She left a message, as she did
    the first time. At 3:42 p.m., she spoke to the appellant to advise him that duty
    counsel had yet to call back.

[83]

This is where things become murky. Sometime
    after P.C. Jacome spoke to the appellant at 3:42 p.m., but before the appellant
    spoke to D.C. Wray at 4:55 p.m., the appellant asked to speak to a particular
    lawyer. A call was made, during which the lawyers colleague advised that the
    lawyer in question was not available. It is not clear who made the call and at
    what time, or how the appellant obtained the name of the lawyer in the first
    place. By the time D.C. Wray got back to the station, the lawyer had not called
    back. Moreover, it was unclear whether duty counsel ever called back to speak
    to the appellant, or whether the request had been cancelled. Nonetheless, after
    D.C. Wray arrived at the station at around 5 p.m., the appellant agreed to
    speak to duty counsel.

[84]

The trial judge found that this series of events
    did not infringe the appellants right to counsel. First, she held that the
    police did not intentionally [withhold] Mr. Pileggis right to access and
    instruct counsel on a timely basis. She noted at para. 102 that the delay of
    over three hours was inadvertent rather than deliberate. Moreover, the trial
    judge held that the appellant was not denied his counsel of choice because he did
    not actually request a particular lawyer and agreed to speak to duty counsel while
    the police contacted his father.

[85]

Relying on
R. v.
    Mortensen
, 2011 ONSC 6393, the trial judge
    essentially found that the appellant waived his right to speak to counsel of
    choice because he agreed to speak with different counsel and did not complain
    about the advice he received:
Pileggi
,
at paras. 105-106. She also reasoned that
    the delay was tolerable because the police did not question the appellant
    during the 3-hour period:
Pileggi
,
at para. 107.

[86]

I respectfully disagree with the trial judge. The
    failure to follow through on the undertaking to contact the appellants father
    about a lawyer, combined with the overall delay in facilitating contact with
    any lawyer, infringed s. 10(b) of the
Charter
. As this court recognized in
R. v.
    Blake
, 2015 ONCA 684, 341 O.A.C. 23, at para. 14,
    the right to counsel includes the right to contact counsel of choice as well as
    the right to contact a third party to access counsel of choice. See also
R. v. Ector
, 2018 SKCA 46, 362 C.C.C.
    (3d) 462, at para. 48.

[87]

In circumstances where there is delay in
    facilitating access to counsel, the Crown bears the onus of showing that the
    delay was reasonable in the circumstances:
Taylor
, at para. 24;
Hobeika
, at para. 73. As I noted at the beginning of these reasons, the
    preliminary inquiry evidence left gaps in the record; gaps that the Crown did
    not fill by calling further evidence on the
Charter

application.

[88]

Standing alone, the efforts of the police to
    contact duty counsel were reasonable, at least in the early stages. P.C. Jacome
    was diligent in placing calls to the duty counsel phone line. She was
    successful in promptly facilitating Ms. Pileggis access to counsel. She
    employed the same approach with the appellant, but with disappointing results. However,
    after she spoke to the appellant at 3:42 p.m. to advise him that duty counsel
    had not called back, the evidence trails off.

[89]

The appellant submits that P.C. Jacome acted
    unreasonably in placing a second call to the duty counsel line almost
    immediately after being told that she should wait an hour until a different
    lawyer was available. I disagree. She acted diligently in calling right away
    and leaving a message, just as she did the first time around. She was aware of
    the importance of putting the appellant in touch with counsel and followed up
    with him at 3:42 p.m. A more troubling issue is duty counsels instructions to
    P.C. Jacome to wait for an hour before calling back, but there was no evidence
    on this issue.

[90]

But these events at the police station do not
    stand alone. The delay in issue merges with the failure to facilitate the
    appellants contact with counsel of choice. D.C. Wray agreed to speak with the
    appellants father and facilitate contact with a private lawyer thereafter. However,
    he did not contact the appellants father. Instead, he assumed that the transporting
    officer would follow through and make the inquiry, but then it would also
    appear that he failed to advise P.C. Wells of his undertaking to the appellant.
    P.C. Jacomes evidence, and her actions at the time, reveal that she too was
    completely in the dark about D.C. Wrays promise to contact the appellants
    father.

[91]

In
R. v. Willier
, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 24, the Supreme Court
    held that the right to consult counsel of choice is not absolute at the initial
    investigative stage. If counsel of choice cannot be available within a
    reasonable period of time, detainees are expected to exercise their right to
    counsel by calling another lawyer:
Willier
,
at para. 35. A measure of diligence is
    expected of the person in detention in exercising their right to consult with
    counsel:
R. v. Ross
,
    [1989] 1 S.C.R. 3, at pp. 10-11;
Willier
, at para. 35.

[92]

This case does not require the court to confront
    the precise contours of the interaction between the right to consult counsel of
    choice and the availability of duty counsel. The issue in this case may be
    resolved in a much more straightforward manner. The police had undertaken the
    role of ascertaining the name of a lawyer from the appellants father. They
    failed to do so. Granted, at some point at the police station, a call was made
    to a specific lawyer, either by the appellant or at his behest. And while the
    respondent attempts to credit the police with this event, there was no evidence
    about how the circumstances of this attempt to contact counsel unfolded.

[93]

The record demonstrates that the appellant acted
    reasonably throughout. He was amenable to D.C. Wrays suggestion at the house
    that he could consult with duty counsel while the police contacted his father. Likewise,
    the appellant seemed to accept P.C. Jacomes efforts to connect him with duty
    counsel. He ultimately agreed to speak with duty counsel when D.C. Wray
    re-entered the picture. The appellant reasonably relied on the undertaking of
    the police to facilitate his access to a private lawyer, and when this did not
    happen, he agreed to duty counsel. Through no lack of diligence on his part,
    this did not happen until 5:15 p.m., more than three hours after his arrest.

[94]

For these reasons, I would find a second infringement
    of the appellants rights under s. 10(b) of the
Charter
.

F.

exclusion of evidence

[95]

The appellant submits that evidence discovered
    as a result of the search of his home should be excluded under s. 24(2) of the
Charter
. At trial, his request for
    exclusion was based on infringements of ss. 8, 9, and 10 of the
Charter
. Given how I would dispose of
    the appellants submissions with respect to ss. 8 and 9, the ability to exclude
    evidence rests solely on the two infringements of s. 10(b), discussed above.

[96]

At para. 111 of her reasons, the trial judge
    made the alternative finding that, if she were wrong in finding no infringement
    of the appellants rights, she was not satisfied that, when viewed either
    independently or cumulatively, the alleged breaches were such that the evidence
    should be excluded. The trial judge analyzed the alleged breaches under s.
    24(2), employing the framework set out in
R. v.
    Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353.

[97]

Having conducted the s. 24(2) analysis in the
    alternative, the trial judges factual findings are entitled to deference, but
    her conclusions on the application of
Grant
are not:
R. v. Fearon
,
2014 SCC 77, [2014] 3 S.C.R. 621, at
    para. 90;
R. v. Kelsy
,
    2011 ONCA 605, 280 C.C.C. (3d) 456, at para. 60. Nonetheless, I reach the same
    conclusion and would decline to exclude the fruits of the search.

(1)

The Evidence was Obtained in a Manner that
    Violated the Appellants Rights

[98]

As a threshold issue, the appellant submits that
    the evidence was obtained in a manner that infringed his s. 10(b)
Charter
rights. His counsel asserts a
    temporal and contextual connection between the s. 10(b) breaches and the
    discovery of the drugs.

[99]

The respondent submits that no
Grant
analysis is required because the evidence
    that the appellant seeks to exclude was not obtained in a manner that
    infringed or denied the appellants
Charter
rights. The s. 10(b) breaches occurred after the police commenced
    the execution of a valid search warrant. In short, the respondent contends that
    any breach of the appellants s. 10(b) rights was too remote from the discovery
    of the evidence.

[100]

I agree with the appellants submission. For the reasons that
    follow, the violations of the appellants rights were temporally and
    contextually connected with the discovery of the drugs at his residence.

[101]

Courts have taken a generous view of the obtained in a manner
    threshold. In
R. v. Pino
, 2016 ONCA 389, 337 C.C.C. (3d) 402, at para. 56, Laskin J.A.
    described this requirement as just the gateway to the focus of s. 24(2) 
    whether the admission of the evidence would bring the administration of justice
    into disrepute. He further held that courts should examine the entire chain
    of events  between the accused and the police and that the requirement may
    be met where the evidence and the
Charter
breach are part of the same transaction or course of conduct:
Pino
,
at
    para. 72. Finally, Laskin J.A. said that any connection between the breach and
    the discovered evidence may be causal, temporal, or contextual, or any
    combination of these connections, as long as the connection is not too
    tenuous or too remote:
Pino
,
at para. 72. See also
R. v. Wittwer
, 2008 SCC 33, [2008] 2
    S.C.R. 235, at para. 21;
R. v. Rover
, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 35; and
Hobeika
, at para. 77.

[102]

Acknowledging this generous approach to the obtained in a manner
    requirement, the respondent relies on the following passage from
Strachan
, in which Dickson C.J. said,
    at pp. 1005-1006:

The presence of a temporal connection is not,
    however, determinative. Situations will arise where evidence, though obtained
    following the breach of a
Charter
right, will be too remote from the
    violation to be obtained in a manner that infringed the
Charter
. In my
    view, these situations should be dealt with on a case by case basis. There can
    be no hard and fast rule for determining when evidence obtained following the
    infringement of a
Charter
right becomes too remote.

[103]

The respondent contends that there was no causal or temporal
    connection, and any contextual connection was too remote.

[104]

Strachan
must be read in light of the
    subsequent jurisprudence referred to above, which confirms the broad nature of
    the obtained in a manner standard. Engaging in the requisite case-specific
    inquiry, there was both a temporal and a contextual connection between the
    breaches and the discovery of the drugs.

[105]

The first infringement of s. 10(b)  the duty to hold off  occurred
    within minutes of the police entering the appellants home and commencing their
    search. Moreover, the question posed by Sgt. Buligan pertained to the context
    of the search  he asked the appellant if he would like to tell the police
    where anything was. The genesis of the second infringement  the denial of counsel
    of choice and the delay in the implementational component  began just minutes
    after that, in the appellants home, when D.C. Wray promised to contact the
    appellants father. At this point, the search was already underway.

[106]

What occurred at the police station was clearly connected to these
    events, given that D.C. Wray neglected to ensure that the transporting officer was
    aware of his undertaking to call the appellants father. Although part of the
    breach sequence occurred after the lawful search, the two events were largely
    concurrent. It cannot be said that the connection between the discovery of the
    evidence and the infringements was too remote, as contemplated in
Strachan
and
Pino
.

[107]

I agree with the respondent that there was no causal connection
    between the s. 10(b) infringements and the discovery of the evidence. However,
    it has long been the law, from
Strachan
onwards, that a causal connection is not required to pass through
    the s. 24(2) gateway.

[108]

That said, the absence of any such connection remains a relevant
    consideration. In
R. v. Lenhardt
, 2019 ONCA 416, 437 C.R.R. (2d) 328, at para. 11, this court held:
    There need not be a causal relationship to establish a case for exclusion
    under s. 24(2), but the absence of any such connection is a factor weighing
    against exclusion. See also
R. v. Do
, 2019 ONCA 482, at para. 12. I return to the lack of causality when
    discussing the impact on the appellants
Charter
-protected interests, below.

[109]

The evidence was obtained in a manner that infringed the
    appellants s. 10(b) rights.

(2)

Applying the
Grant
Factors

[110]

Balancing the factors established in
Grant
, I am not persuaded that the administration of justice would be
    brought into disrepute by the admission of the evidence discovered during the
    search of the appellants home.

(a)

The Seriousness of the Breach

[111]

In combination, the infringements of the appellants rights under s.
    10(b) were serious.

[112]

In terms of the duty to hold off, I agree with the trial judges
    finding that Sgt. Buligans question was entirely inappropriate. As noted
    above, the officer should have known that he was wading into dangerous
    territory by reading the search warrant to the appellant without being
    requested to do so. The fact that he did not inquire about the status of the
    appellants s. 10(b) rights before doing so is also concerning.

[113]

That being said, I accept the respondents characterization of the
    exchange as fleeting and inconsequential. No further evidence was obtained as
    a result of the question. The appellants previous inculpatory statements were
    both spontaneous.

[114]

The breach involving the failure to properly implement the
    appellants right to counsel was more serious, even though the breach was
    unintentional and occurred largely due to a lack of communication between
    police officers. Mistakes happen, but the appellant was deprived of his right
    to counsel for over three hours as a result.

[115]

Nevertheless, this case does not have some of the aggravating
    features that characterize serious s. 10(b) breaches as seen in some of this
    courts more recent jurisprudence. For example, this case is not like
Rover
,
    in which the police intentionally delayed the appellants access to counsel for
    six hours, based on a police protocol to suspend the right to counsel while
    search warrants are executed. The systemic and institutional nature of the
    police conduct made the breach in that case more serious. As noted above, the
    breach here was far more situation-specific. A perfect storm brewed between
    D.C. Wrays failure to convey his undertaking to the transporting officer, and
    the delay that was arguably more properly attributed to the unavailability of
    duty counsel.

[116]

This case can also be
    distinguished from
R. v. Noel
,
2019
    ONCA 860.

In
Noel
,
the delay
    occurred because no one took charge of arranging a call to counsel when the
    appellant arrived at the police station. The appellant promptly requested
    access to counsel, but was then placed in a cell and left there. The first
    confirmed attempt to call counsel on the appellants behalf occurred three
    hours later, and it was never confirmed that the appellant actually succeeded
    in speaking to counsel. The court found the breach to be serious, noting at
    para. 32: From the beginning, the police appear to have had a somewhat
    cavalier attitude about a fundamental, important, and long-settled
Charter

right to consult counsel without
    delay. Due to the seriousness of the breach and the effect it would have had on
    the long-term interests of the administration of justice, this court excluded
    the evidence under s. 24(2).

[117]

This
    case does not rise to the carelessness demonstrated in
Noel
.
Although D.C. Wray dropped the ball by failing to follow up
    with the appellants father, P.C. Jacome diligently attempted to enlist the
    assistance of duty counsel. Her efforts began with the arrival of the appellant
    and his wife at the station. As the situation developed, she tried to keep the
    appellant up to date. At some point, an attempt was made to contact private
    counsel, but that lawyer was not available. As soon as D.C. Wray arrived at the
    station and realized the problem, he rectified it immediately. All the while,
    no one attempted to elicit information from the appellant.

[118]

This case shares greater similarities with
Hobeika
, in which this court held that
    a five-hour delay between the arrest of the accused and his access to counsel,
    which was left completely unexplained by the police, was a serious breach. In
    that case, the seriousness of the breach was outweighed by the other
Grant
factors. This court upheld the
    trial judges decision not to exclude the evidence. The breaches in this case
    were less serious because of the efforts of P.C. Jacome (as noted in the above
    paragraph) and the shorter period of delay (three hours as opposed to five
    hours).

[119]

In summary, the evidence demonstrates that this was a fact-specific,
    if not idiosyncratic, scenario. The systemic and institutional considerations
    that drove the result in
Rover
are absent in this case. Additionally, the diligence of P.C. Jacome
    in contacting duty counsel and keeping the appellant informed of the developing
    situation sets this case apart from
Noel
, and makes it less serious than
Hobeika
. But despite the factors that may tend to mitigate the seriousness
    of the breach, I conclude that the breach was serious nevertheless. The collective
    negligence involved in allowing the appellants s. 10(b) rights to fall through
    the cracks precludes a finding of good faith: see
R.
    v. Le
,
2009 SCC 34,
    at paras. 143, 147. Moreover, the seriousness of this second breach is
    exacerbated by the first; in combination, they favour exclusion.

(b)

Impact on
Charter
-Protected Interests

[120]

I would not describe the impact on the appellants
Charter
-protected interests as serious.
    As noted above, at para. 107, although the appellant surpasses the obtained in
    a manner threshold, there was no causal connection between the discovery of
    the evidence and the breach of the appellants right to counsel. In appropriate
    cases, this may mitigate the infringement: see
Rover
, at para. 43;
Grant
, at para. 122.

[121]

Notwithstanding the inappropriate overture of Sgt. Buligan at the
    house, the appellant refused to cooperate. He said no. Once out of the house,
    no other officer attempted to elicit information from him while he waited to
    speak to a lawyer. Overall, Sgt. Buligans failure to hold off had a minimal
    impact on the appellants
Charter-
protected interests.

[122]

Turning to the denial of counsel of choice and the three-hour delay,
    I am not satisfied that the impact of the
Charter

breach

on the appellants rights was significant.

[123]

In
Rover
,
    Doherty J.A. described the right to counsel as a lifeline for detained
    persons, in terms of delivering legal advice and guidance to accused persons,
    but also in the sense that they are not entirely at the mercy of the police
    while detained:
Rover
,
at para. 45. Doherty J.A. further
    noted that: The psychological value of access to counsel without delay should
    not be underestimated:
Rover
,
at para. 45. The court considered the
    impact on Mr. Rover to be serious because he was held for several hours
    without any indication of when he might be allowed to speak to someone:
Rover
,
at
    para. 46.

[124]

Here, the appellant was not left to languish alone interminably,
    unaware of what was going on. He was kept apprised of attempts to engage duty
    counsel on his behalf. A call was made to private counsel, but the record is
    unclear as to when that happened and who was involved in the attempt to reach
    the lawyer. The appellant did not testify to shine further light on this issue.
    Nonetheless, the record is sufficiently clear on two crucial points: (1) it was
    always the intention of the police to put him in touch with counsel; and (2) efforts
    to do so were conveyed to the appellant.

[125]

This factor does not favour exclusion.

(c)

Societys Interest in Adjudication on the Merits

[126]

In terms of societys interest in adjudication on the merits, the
    evidence in question is reliable and this was not compromised by the
    infringements of the appellants s. 10(b) rights. The discovery of the drugs
    lies at the heart of the Crowns case. Ultimately, the admission of the
    evidence would enhance the truth-seeking function of the trial. Its exclusion,
    based on constitutional violations that were only vaguely connected to its
    discovery, would damage the repute of the justice system.

[127]

The long-term repute of the administration of justice does not
    favour exclusion of the evidence. The failings of the police were
    situation-specific, but serious nevertheless. However, the evidence was
    discovered by virtue of a properly issued search warrant that police executed
    in a reasonable manner. In these circumstances, exclusion of the evidence would
    only serve to indirectly punish the offending officers, rather than aligning
    with the overall purpose of s. 24(2)  vindicating the long-term repute of the
    criminal justice system:
Hobeika
, at para. 90.

[128]

The admission of the evidence discovered during the search would not
    bring the administration of justice into disrepute. I would decline to exclude
    the evidence under s. 24(2).

G.

conclusion

[129]

I would dismiss the appeal.

Released: DD January 7, 2021

Gary Trotter J.A.

I agree. Doherty J.A.

I agree. K. van Rensburg J.A.





[1]
Ms. Dann, the appellants counsel in this appeal, was not
defence
    counsel at trial.



[2]
This holding is repeated at para. 42 of their reasons.


