R. v. Pileggi

R. v. Pileggi Collection Decisions of the Court of Appeal Date 2021-01-07 Neutral citation 2021 ONCA 4 Docket numbers C67080 Judges Doherty, David H.; van Rensburg, Katherine; Trotter, Gary T. Subject Criminal Decision Content COURT OF APPEAL 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 appellant’s 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 appellant’s 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 appellant’s 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 judge’s ruling. [4] I would uphold the trial judge’s 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 appellant’s 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 appellant’s 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 appellant’s 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 appellant’s 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, I’m 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 OPP’s 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 appellant’s 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 appellant’s two-story house. He observed: “I’m aware that there are two washrooms, upstairs and downstairs, so…these types of houses are the types of houses where I’ve had drugs flushed down the toilet when executing warrants.” [17] There was confusion in the evidence about whether the front door of the appellant’s 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 don’t have an immediate recollection in mind, but there’s no way I would have breached the door without him notifying me to breach the door.” P.C. Sharp further testified that “there’s 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 judge’s 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 judge’s 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, 10th 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. Buligan’s 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 judge’s 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 appellant’s 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 judge’s 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 judge’s 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: “Don’t throw me to the ground; I’ve 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 appellant’s 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. Wray’s 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 judge’s 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 judge’s 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 appellant’s 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 judge’s 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. Black’s 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 appellant’s 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 arrester’s 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 appellant’s 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 appellant’s 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 appellant’s counsel of choice infringed s. 10(b). [56] In my view, Sgt. Buligan’s 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 appellant’s right to consult counsel of choice and the overall delay in placing the appellant in contact with duty counsel further violated the appellant’s 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, aren’t 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. Pileggi’s 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 judge’s 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. Buligan’s question was in “direct response” to the appellant’s utterance. It certainly came immediately after the appellant’s assertion. But the appellant’s 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. Buligan’s 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 appellant’s 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 appellant’s 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 appellant’s 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 appellant’s 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. Wray’s 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 lawyer’s 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 appellant’s right to counsel. First, she held that the police did not “intentionally [withhold] Mr. Pileggi’s 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 appellant’s 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. Pileggi’s 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 counsel’s 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 appellant’s contact with counsel of choice. D.C. Wray agreed to speak with the appellant’s father and facilitate contact with a private lawyer thereafter. However, he did not contact the appellant’s 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. Jacome’s evidence, and her actions at the time, reveal that she too was completely in the dark about D.C. Wray’s promise to contact the appellant’s 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 appellant’s 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. Wray’s 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. Jacome’s 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 appellant’s 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 appellant’s 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 appellant’s 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 judge’s 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 Appellant’s 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 appellant’s 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 appellant’s s. 10(b) rights was too remote from the discovery of the evidence. [100] I agree with the appellant’s submission. For the reasons that follow, the violations of the appellant’s 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 appellant’s 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 appellant’s home, when D.C. Wray promised to contact the appellant’s 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 appellant’s 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 appellant’s Charter-protected interests, below. [109] The evidence was “obtained in a manner” that infringed the appellant’s 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 appellant’s home. (a) The Seriousness of the Breach [111] In combination, the infringements of the appellant’s rights under s. 10(b) were serious. [112] In terms of the duty to hold off, I agree with the trial judge’s finding that Sgt. Buligan’s 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 appellant’s s. 10(b) rights before doing so is also concerning. [113] That being said, I accept the respondent’s characterization of the exchange as “fleeting and inconsequential.” No further evidence was obtained as a result of the question. The appellant’s previous inculpatory statements were both spontaneous. [114] The breach involving the failure to properly implement the appellant’s 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 court’s more recent jurisprudence. For example, this case is not like Rover, in which the police intentionally delayed the appellant’s 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. Wray’s 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 appellant’s 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 appellant’s 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 judge’s 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 appellant’s 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 appellant’s 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 appellant’s 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. Buligan’s failure to hold off had a minimal impact on the appellant’s 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 appellant’s 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) Society’s Interest in Adjudication on the Merits [126] In terms of society’s interest in adjudication on the merits, the evidence in question is reliable and this was not compromised by the infringements of the appellant’s s. 10(b) rights. The discovery of the drugs lies at the heart of the Crown’s 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 appellant’s counsel in this appeal, was not defence counsel at trial. [2] This holding is repeated at para. 42 of their reasons.