A Breach of Section 10(b) and a Contextual Breach of Section 24(2) of the Charter: Cases from Alberta and Ontario.

Published On: Nov 06,2019

Rights to Counsel and the Exclusion of Evidence under the Canadian Charter of Rights and Freedoms =

Two (2) recent cases that concern the implementational duties of Section 10(b) of the Charter and the exclusion of evidence under Section 24(2) wherein the Court found a “contextual” (a temporal) breach of the defendants’ rights, and thus exclude drug related evidence.  Those cases are Regina v. Noel and Regina v. Duong, infras.

In Regina v.  Noel, 2019 ONCA 860 (RD), the Ontario Court of Appeal overturned the accused’s convictions for drug offences and substituted verdicts of acquittal.  The critical issue was whether a violation of Mr. Noel’s Section 10(b) rights under the Canadian Charter of Rights and Freedoms (the “Charter”).   The factual matrix involved the police entry into a home with a warrant, which is commonly referred in the practice of law and policing as a Feeney warrant.  The principles in Regina v. Feeney were distilled by the Supreme Court of Canada, and they remain a valid statement of legal principles.  Pursuant to the execution of the warrant, the police used a dynamic entry into the home of the defendant.  It involves speed and quick movement are the critical components of dynamic entry. This tactic is meant to surprise and overwhelm the suspect(s), and thereby prevent them from taking up arms, hardening their defensive position, harming hostages or destroying evidence.

Upon arresting the accused along with two (2) residents (the accused’s partner and brother), certain quantities of cocaine and marijuana along with cash and a digital scale were located.  That evidence was seized for evidentiary purposes at trial.  Defence counsel sought the exclusion of that evidence by impugning the warrant and the dynamic entry into the home of the defendant under Section 8 of the Charter. It was also alleged that the arrest of the defendant was contrary to Section 9 of the Charter, culminating in an arbitrary detention pursuant to the authority of Regina v. Suburu, 2009 SCC 33 (CanLII) from the Supreme Court of Canada.   The right to consult counsel without delay exists because those who are arrested or detained are apt to require immediate legal advice that they cannot access without help, because of their detention: Regina v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at p. 191; Regina v. Suberu, 2009 SCC 33 (CanLII), [2009] 2 S.C.R. 460, at para. 41: Regina v. Rover, 2018 ONCA 745 (CanLII), 143 O.R.(3) 135, at para. 34.  The trial judge dismissed all these arguments except for an implementational breach of s.10(b). However, the drug evidence was still admitted under s.24(2).

The Ontario Court of Appeal held that the trial judge erred in her s.24(2) ruling where she stated that the seriousness of the breach was attenuated because the police held off on questioning the accused until after contact with counsel.

The seriousness of the breach cannot be attenuated by the fact that the police did not commit another Charter breach. There was no evidence that the accused ever succeeded in speaking to counsel. The loss of the right to counsel is not neutralized because implementation of the right was delayed as opposed to denied.  The Court made the following findings:

[25]      Section 10(b) obliges the police to advise a detained person of the right to speak with counsel without delay and, if the detained person exercises that right, the police must immediately provide the detainee with a reasonable opportunity to speak to counsel: R. v. Suberu2009 SCC 33 (CanLII), [2009] 2 S.C.R. 460, at paras. 38, 42; R. v. Bartle1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at pp. 191-92.

[26]      The s. 10(b) jurisprudence has, however, always recognized that specific circumstances may justify some delay in providing a detainee access to counsel. Those circumstances often relate to police safety, public safety, or the preservation of evidence. For example, in R. v. Strachan1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, the court accepted that the police could delay providing access to counsel in order to properly gain control of the scene of the arrest and search for restricted weapons known to be at the scene. Subsequent cases have accepted that specific circumstances relating to the execution of search warrants can also justify delaying access to counsel until the warrant is executed: see e.g. R. v. Learning2010 ONSC 3816 (CanLII), 258 C.C.C. (3d) 68, at paras. 71-75.

[27]      These cases have, however, emphasized that concerns of a general or non-specific nature applicable to virtually any search cannot justify delaying access to counsel. The police may delay access 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. Even when those circumstances exist, the police must also take reasonable steps to minimize the delay in granting access to counsel: see e.g. R. v. Patterson2006 BCCA 24 (CanLII), 206 C.C.C. (3d) 70, at para. 41R. v. Soto2010 ONSC 1734 (CanLII), at paras. 67-71Learning, at para. 75R. v. Wu2017 ONSC 1003 (CanLII), 35 C.R. (7th) 101, at para. 78.

[28]      Wu, at para. 78, provides a helpful summary of the law. That summary includes the following:

The assessment of whether a delay or suspension of the right to counsel is justified involves a fact specific contextual determination. The case law on this issue reveals some general guiding principles that provide a framework for this assessment:

  1.    The suspension of the right to counsel is an exceptional step that should only be undertaken in cases where urgent and dangerous circumstances arise or where there are concerns for officer or public safety.

  1.    Police officers considering whether circumstances justify suspending the right to counsel must conduct a case by case assessment aided by their training and experience.A policy or practice routinely or categorically permitting the suspension of the right to counsel in certain types of investigations is inappropriate. [Emphasis added.]

[29]      In the present case, the evidence demonstrates that the officers involved in this investigation followed a practice that routinely prevented arrested persons from accessing counsel if the police intended to obtain a warrant to search a place for drugs and believed that the place had a connection to the arrested person. The rationale behind this practice appears to be that there is always a possibility that allowing an arrested person to speak to their lawyer could put the officers executing the warrant at risk or jeopardize the preservation of evidence. Under this practice, the appellant, as the occupier of the place to be searched, was prevented from contacting his lawyer, as were the two women who had been arrested earlier that evening.

(iv)        Should the evidence be excluded?

[35]      While there was no causal connection between the discovery of the drugs and the s. 10(b) breach, there was a close temporal connection. The parties acknowledge that the connection is sufficient to engage s. 24(2): see R. v. Pino2016 ONCA 389 (CanLII), 130 O.R. (3d) 561.

[43]      The trial judge described the negative impact of the breach on the appellant’s right to access counsel as “moderate”. That description was based largely on his finding that the delay of about 1 hour and 20 minutes in allowing the appellant to access counsel had no causal connection to the obtaining of the evidence discovered in the search of the appellant’s residence, and that the police had refrained from questioning the appellant during that time. The trial judge was correct in considering the absence of any causal connection between the s. 10(b) breach and the obtaining of the evidence as a factor mitigating the impact of the breach on the appellant’s Charter-protected interests: Grant, at para. 122.

[45]      The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.

[46]      In this case, instead of providing the appellant with the lifeline to counsel when he requested it, the police put him in the cells. The appellant was held for several hours without any explanation for the police refusal of access to counsel, and without any indication of when he might be allowed to speak to someone. His right to security of the person was clearly compromised. The significant psychological pressure brought to bear on the appellant by holding him without explanation and access to counsel for hours must be considered in evaluating the harm done to his Charter-protected interests.

The court found the s.10(b) violation to be serious and its impact to be significant, as three hours passed from arrest to the first attempt to contact counsel. This was a clear violation of a well-established rule.

A similar result was achieved in Regina v. Hoang Quoc Duong, Action No.: 161211529Q1, by Justice Phillips on June 18, 2019, where the Court said:

Next question, should all evidence be excluded pursuant to Section 24(2) of the Charter?

On the 10(b) Charter breach, the accused, Mr. Duong, argues that when he was detained and arrested relative to a drug investigation, he unequivocally asserted his right to counsel. He was not provided an opportunity to counsel forthwith, and thus this constitutes a violation of his Section 10(b) Charter rights which he says under the revised test set out in R. v. Grant, 2009 SCC 32 at paragraphs 71 to 72 must result in the exclusion of the evidence. The Crown disagrees and says that should I find a breach of Section 10(b), which as noted I have, that it was merely a technical breach, that nothing flowed from it such as further statements from the accused, and that it was of little, if any, impact on the accused as he was only detained roadside for approximately 17 minutes and thereafter released so that he could go on his way and contact his lawyer. The Crown further argues that to take him back to the detachment so that he could phone his lawyer in privacy would have meant that Mr. Duong would have been detained longer than 17 minutes. Constable MacPhail sincerely believed, which I accept, as he said on page 113 of the transcript (as read):

But my intention based on everything was to release him roadside anyways, to get him out of there fast, as to protect his rights, get him released, processed, and gone so he can facilitate all of those legals once he is released.

As pointed out in paragraph 26 of R. v. Keror, 2017 ABCA 273 (as read):

A detainee is vulnerable from the moment of arrest. As a result, the police have an obligation to facilitate access to a lawyer at the first reasonable opportunity, and the Crown bears the onus of establishing that any delay was reasonable: R v Taylor, 2014 SCC 50 at para 24 [2014] 2 SCR 495.

Clearly, in this case the Crown has failed to meet that onus as the accused, Mr. Duong, was never offered the opportunity at any time during his detention. It is apparent from the response of Constable MacPhail that there were “manpower issues” in getting Mr. Duong to a phone room. By the time of the accused’s detention, officer security was not the concern. Constable MacPhail, unlike in R. v. Paulishyn, 2017 ABQB 61, did not have a third officer available to take Mr. Duong back to the RCMP detachment so that he could phone his counsel of choice. Is that sufficient for the police to abrogate itself from the obligation of the police to an accused under Section 10(b) of the Charter, and, if so, does that conduct warrant exclusion of the evidence obtained by Constable MacPhail pursuant to Section 24(2) of the Charter?

I find that Mr. Duong’s right to counsel cannot be abrogated in this way, and that his application to exclude the evidence is granted pursuant to Section 24(2) of the Charter for the following reasons.

As we know from the case law, evidence obtained in contravention of a Charter right does not mean that it is automatically excluded. The Court must determine where there has been a breach of a Charter right, whether the admission of the controlled substance in the proceedings would bring the administration of justice into disrepute.

To conduct this analysis, the Court (as set in Grant at paragraph 71) must weigh the following three factors:

  1. The seriousness of the Charter-infringing state conduct, (and the admission may send the message the justice system condones serious state misconduct.)

  2. The impact of the breach on the Charter-protected interests of the accused. (Here, admission may send the message that individual rights count for little.);

And 3. Society’s interest in the adjudication of the case on its merits.

Dealing first with the seriousness of the Charter breach, I refer to the case of Paulishyn. In this case, Mr. Paulishyn was stopped by a police officer doing a routine traffic stop near Lake Louise, Alberta. The RCMP deployed a police detention dog who detected the

odour of a controlled substance. The police arrested Mr. Paulishyn and searched the vehicle. During the search the police discovered 78 pounds of cannabis marihuana. Due to the large quantity of marihuana that was found, Mr. Paulishyn was transported back to the RCMP. During his detention roadside, Mr. Paulishyn expressed his desire twice to contact counsel but was not given the opportunity to do so roadside. When it was initially thought he would be released roadside, he was advised he could contact a lawyer at his leisure after he was released from custody. Once at the police detachment, he was given the opportunity to contact counsel. Justice Yamauchi at paragraphs 147 and 149 of Paulishyn expressed his concern and indicated that the “Charter 10 beach was more serious.” At paragraph 147 of that case he stated (as read):

This Court has more concern about the Charter s 10(b) rights. There was ample time to allow Mr. Paulishyn to be taken to the Lake Louise detachment either by Cpl. Kane or Cpl. Maetche, or even by Cst. MacPhail. It seems that the officers were more interested in completing their investigation than providing Mr. Paulishyn his right to contact counsel. The evidence was secured, and neither Cpl. Kane nor Cpl. Maetche provided this Court with any evidence that they felt that officer safety was a concern.

Unlike in Paulishyn, where he was ultimately given an opportunity to contact a lawyer in a telephone room back at the RCMP detachment, Mr. Duong was not offered that option at all during his 17-minute detention. Understandably, Constable MacPhail thought he was doing what was best under the circumstances given his limited manpower, resources, and, as he said, taking Mr. Duong back to the detachment to make a phone call to his lawyer “would have delayed his release significantly.” I find, however, there were no exceptional circumstances in this case that warranted the RCMP in not affording Mr. Duong the opportunity to contact his lawyer during the period of his detention. As pointed out in paragraphs 110 to 113 of Paulishyn and in particular 113 (as read):

In R v Tieu, 2017 ABQB 344 (Alta. QB) at para 63, Tilleman J said the following:

The exigent circumstance exception to facilitating a person’s s. 10(b) rights is not and must not become a common or default approach used by police on a regular basis. The justification is necessarily narrow and will only excuse a breach of section 10(b) in genuinely extraordinary circumstances. To find otherwise would effectively condone police behaviour that blatantly disregards the Charter rights of accused persons, while also undermining those situations in which extraordinary circumstances are actually present and a delay is properly justified.

In this case, although the breach on Mr. Duong’s rights did not result in any demonstrated causal effect on the end result, since no further evidence was obtained from him while he was detained in the police cruiser, I do not see any exceptional or exigent circumstances such as officer or public safety to deny the accused, Mr. Duong, the opportunity to call a lawyer in a private location. The marihuana was not going anywhere.  I recognize that under R. v. Taylor, 2014 SCC 50 at paragraph 27, that the police have no legal duty to provide their own cell phone to an arrested or detained individual. Constable MacPhail was correct in not offering his own cell phone to Mr. Duong. However, he was obligated to make the necessary arrangements to have Mr. Duong transported to the detachment to contact his lawyer pursuant to Section 10(b), and he did not do that.

To be told by the police that you have a right to counsel and that you will be afforded the opportunity to exercise that right while you are detained and then to not be given an explanation by the police as to why your right is not being facilitated, I find disconcerting to this Court and I would think to most of the Canadian public. Although I have found no Charter breaches under Sections 8 and 9, nevertheless, I find this “common or default approach” used by the RCMP in this case seriously undermines public confidence and the rule of law and favours exclusion of the evidence.

Now turning to the impact on Mr. Duong’s Charter-protected rights. I recognize that there is less impact here because this was a traffic stop on a highway. However, as the case law points out, a highway is not a Charter-free zone. And every motorist on the highway has a rightful expectation of liberty and privacy, and if detained and arrested, as Mr. Duong was, to a right to counsel pursuant to Section 10(b). R. v. Bartle, [1994] 3 SCR 173, at 191 states the following (as read):

The purpose of the right to counsel guaranteed by s. 10(b) of the Charter is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfil those obligations: R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242-43. This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him- or herself. Accordingly, a person who is “detained” within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty: Brydges, at p. 206; R. v. Hebert, [1990] 2 S.C.R. 151, at pp. 176-77; and Prosper. Under s. 10(b), a detainee is entitled as of right to seek such legal advice “without delay” and upon request. As this Court suggested in R. v. Clarkson, [1986] 1 S.C.R. 383, at p. 394, the right to counsel protected by s. 10(b) is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process. I recognize that neither Constable MacPhail nor Constable Ling sought or did obtain a statement from Mr. Duong while he was detained, and that is to be commended. Nevertheless, he was not provided his Charter 10(b) right at all. The impact to Mr. Duong was not trivial. As found by Justice Yamauchi at paragraph 158 of Paulishyn, I too find that given the importance of Mr. Duong’s Charter-protected rights under Section 10(b) as articulated in Bartle, this favours the exclusion of the evidence.

Now, turning to the third factor, society’s interest in an adjudication on the merits. At this stage the Courts look to consider factors such as the reliability of the evidence and the importance of that evidence to the Crown’s case. R. v. Harrison, 2009 SCC 34, at paragraph 34. Here, there is no doubt that the evidence is reliable. The defence has admitted that the nature of the substance that was seized from a bag in the trunk of Mr. Duong’s vehicle on or about October 17, 2016, was 60 one-half pound bags of marihuana, totalling a weight of 30 pounds, (i.e., being over 3 kilograms.)

I accept that society has an interest in adjudicating this case on its merits since the amount of marihuana that was seized from Mr. Duong’s vehicle is not an insignificant amount. Without the evidence obtained from the search of Mr. Duong’s vehicle, it is evident the Crown will not be able to make out its case.

In Grant at paragraph 83 the Supreme Court stated (as read): The exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution. Here, since the seized marihuana is physical evidence and there are no reliability issues with this evidence, I find this line of inquiry favours admission of the evidence.

Now, turning to the conclusion on the balancing of the Grant factors. As pointed out in paragraph 165 of Paulishyn (as read):

This [Grant] analysis requires the court to examine the quality of the evidence against the means by which the evidence was obtained. This is not a scientific exercise. In fact, even if a court finds that the state misconduct or the impact on the accused is serious, it must still balance all the factors; one factor alone does not determine the Charter s. 24(2) inquiry: Sandhu at paras 69-70.

Given my foregoing reasons, I have concluded the Section 10(b) Charter breach was serious. Its impact on Mr. Duong was not trivial. Balancing all of this, such factors outweigh society’s interest in the adjudication of this case on its merits. In short, this is a case where the evidence should be excluded, for to admit it would bring the administration of justice into disrepute by causing the reasonable member of the public to question the integrity of the justice system. The public must have confidence that when they are offered the right to speak with a lawyer without delay when they are detained, and they wish to exercise that right, that the police will facilitate that right, without delay, as they are obligated to do. The fact the police have manpower issues, which I acknowledge is beyond their control, or, in their view, deem it more expedient to release an accused roadside, is not a reasonable excuse. That approach renders Section 10(b) meaningless and only serves to undermine the intended protection given to the accused under Section 10(b). As a result of the foregoing, this Court concludes that the evidence is excluded as Mr. Duong has requested

If you have been charged with a criminal offence, call Mr. J.S. Patel, Barrister at 403-585-1960.