R. v. Kettle, 2022 NLSC 36

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Kettle , 2022 NLSC 36 Date : March 9, 2022 Docket : 202104G0070 Her Majesty The Queen v. Robert Kettle and Dianne Anderson Before: Justice Peter N. Browne Place of Hearing: Corner Brook, Newfoundland and Labrador Dates of Hearing: January 11, 2022; February 14, 2022; and February 16, 2022

Summary: Robert Kettle and Dianne Anderson were charged with trafficking cannabis and the possession of cannabis for the purpose of trafficking contrary to sections 10(1) (

a) and 10(2) of the Cannabis Act . They made a pre-trial application under section 24(2) of the Charter to exclude statements by Kettle to the arresting officer and the subsequent physical evidence seized during execution of a search warrant of their residence. The Court held that the police failed in their constitutional obligation to implement Kettle’s

section 10(

b) right to counsel without delay. In the result, the subsequent statements made by Kettle to the arresting officer as to the location of the physical evidence were excluded as was the physical evidence itself.

Appearances: Mark Mills Appearing on behalf of Her Majesty The Queen Trevor A. Stagg Appearing on behalf of Robert Kettle Robby D. Ash Appearing on behalf of Dianne Anderson Authorities Cited: CASES CONSIDERED: R. v. Suberu, 2009 SCC 33; R. v. Bartle, (SCC), [1994] 3 S.C.R. 173, 92 C.C.C. (3d) 289(S.C.C.); R. v. Rover, 2018 ONCA 745; R. v. T.G.H, 2014 ONCA 460; R. v. Debot, (SCC), [1989] 2 S.C.R. 1140, 52C.C.C. (3d) 193 (S.C.C.); R. v. Pileggi, 2021 ONCA 4; R. v. Nelson, 2010 ABCA 349; R. v. Taylor, 2014 SCC 50; R. v. Manninen, (SCC), [1987] 1 S.C.R. 1233, 34 C.C.C. (3d) 385 (S.C.C.); R. v.

Ross, (SCC), [1989] 1 S.C.R. 3, 46 C.C.C.(3d) 129 (S.C.C.); R. v. Black, (SCC), [1989] 2 S.C.R. 138, 50 C.C.C. (3d) 1 (S.C.C.); R. v. Brydges, (SCC), [1990] 1 S.C.R. 190, 53 C.C.C. (3d) 330 (S.C.C.); R. v. Feeney, (SCC), [1997] 2 S.C.R. 13, 115 C.C.C. (3d)129 (S.C.C); R. v. Cairns (2004), (ON CA), 182 O.A.C. 181, 60 W.C.B. (2d) 228 (Ont. C.A.); R. v. O'Donnell, 2004NBCA 26; R. v. Hebert, (SCC), [1990] 2 S.C.R. 151, 57 C.C.C. (3d) 1 (S.C.C.); R. v. Noel, 2019 ONCA 860; R. v.Grant, 2009 SCC 32; R. v. Price, 2020 NLSC 124; R v MacInnes, 2020 BCSC 2232; R. v.

Griffith, 2021 ONCA 302; STATUTES CONSIDERED: Cannabis Act, S.C. 2018, c. 16; Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act,1982 being

Schedule B to the Canada Act 1982 (UK), 1982, c. 11 REASONS FOR JUDGMENT Browne, J.: INTRODUCTION [1] Robert Kettle and Dianne Anderson (“Kettle” and “Anderson”) have been charged with trafficking cannabis and possession ofcannabis for the purpose of trafficking contrary to sections 10(1)(

a) and 10(2) of the Cannabis Act, S.C. 2018, c. 16. [2] They brought this application under

section 10(

b) and section 24(2) of the Canadian Charter of Rights and Freedoms,

Part I ofthe Constitution Act, 1982 being

Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (“the Charter”) to exclude evidence seizedduring the execution of a search warrant. [3] The parties filed briefs which indicated, with some exceptions, there was an agreed statement of facts. However, during thehearing it became evident that there was a significant divergence regarding what occurred after Kettle was detained in the RCMP policecruiser following his arrest. [4] While the parties disagree over whether Kettle was shown a copy of the warrant upon entry to his residence, the evidence wasclear that he read the warrant prior to speaking to counsel. Moreover, there is no issue that the search was a violation of

section 8. [5] The application focused on the implementation component of

section 10(

b) following Kettle’s affirmation that he wished tospeak with counsel. Kettle and Anderson argue the police should have taken steps to facilitate his request at the scene. Rather, they saythere was a conscious decision or gross negligence on behalf of the police to delay implementation until Kettle was taken back to thedetachment. [6] They point to the Crown’s evidence and contend it establishes the police avoided any discussion about the implementation ofthe right to counsel during a planning meeting held prior to the execution of the search warrant.

Instead, they argue the police justassumed implementation could be dealt with back at the detachment. [7] The Crown’s position was the delay in implementation was permissible due to privacy concerns at the scene and the time it

took to secure the scene, transport Kettle and Anderson from Searston, NL to Port aux Basques, NL and process them into custody. [ 8 ] As part of this divergence, the parties disagreed as to the voluntariness of statements made by Kettle regarding the location of the evidence, specifically cannabis and money. Kettle and Anderson say that the police began questioning Kettle about the location of the search items without “holding off” and implementing any steps to grant immediate access to legal counsel.

The Crown states that Kettle made an unprompted utterance about the location of the search items which was not elicited by any police questioning. [ 9 ] For the reasons that follow, I find that Kettle and Anderson have established a breach of

section 10(

b) of the Charter . As a result of this breach, the statement Kettle provided to the police is excluded as is the subsequent physical evidence obtained during the execution of the search warrant of Kettle’s residence. background [ 10 ] On August 30, 2019, the RCMP obtained a warrant to search the residence of Kettle and Anderson for evidence relating to suspected breaches of the Cannabis Act . The warrant was to be executed between the hours of 17:00 – 23:59.

Prior to execution, the police team met at a location near the community of Doyles, NL to plan the search and assign roles. [ 11 ] At approximately 19:30 hours, several members of the RCMP attended the residence for the purpose of executing the warrant. They entered the residence and found Kettle, Anderson and their adult son inside. [ 12 ] At 19:33 hours, Kettle was arrested by Cst. Kevin Albert (“Cst. Albert”) on the front steps of his residence. Cst. Albert provided Kettle the police caution from memory and escorted him to his police vehicle.

Around 19:38 hours, Kettle was advised of his right to counsel for a second occasion. The parties agree that Kettle indicated he wished to exercise his right. Around 19:41 hours, Kettle provided Cst. Albert with information regarding the location of the evidence in his residence. [ 13 ] This information was conveyed by Cst. Albert to Cst. Levasseur-Brie and Cst. Sutra-Cole.

Sometime between the hours of 19:41 - 19:50, cannabis and cash were located in a bedroom closet, underneath a bed and in a cupboard and were subsequently seized. [ 14 ] Kettle and Anderson were escorted to the RCMP detachment in Port aux Basques and placed in cells. Anderson was provided with the opportunity to speak with counsel at 20:57 hours and Kettle was given the opportunity at 21:25 hours. [ 15 ] They were released from custody at 23:15 hours. EVidence Robert Kettle Examination-in-chief [ 16 ] On the evening of August 30, 2019, Kettle was at home with Anderson and his son, Justin.

He was in the kitchen when he heard a knock on the door. He got up from the table and went down the hallway to see who was there. Before opening the door he looked out and saw the police on his patio. [ 17 ] When he opened the door, the police came in immediately and handcuffed his hands behind his back. On questioning by Anderson’s counsel, Kettle testified that there were three to four police officers and he was told he was under arrest.

He was not given the reason for the arrest, was never told they had a warrant and was never asked to identify himself. [ 18 ] As he was being escorted to the police cruiser, Kettle told the arresting officer he had a bad shoulder and the handcuffs were causing him pain. In response, the officer removed the handcuffs and allowed him to put his hands in front of his torso before reapplying them. [ 19 ] As to what occurred while Kettle was detained in the police cruiser, his responses to his own counsel concerning the passage of time were confusing and contradictory.

Despite this, Kettle asserted that the arresting officer read him his rights including the right to counsel to which he responded, “Yes, I’d like to get ahold of a lawyer”. On questioning from Anderson’s counsel, Kettle confirmed that the arresting officer never offered him the use of a cell phone, a police phone or the possibility of using the landline in his residence. According to Kettle, the area in his driveway where he was being detained had good cell coverage. [ 20 ] After several minutes passed, the officer asked whether there was anything in the house they should know about.

Kettle claims that in response to this question he told the officer the cannabis and cash were located in a box underneath the bed, in a duffle bag covered by blankets in the bedroom closet and in a cupboard. He testified he did so because the arresting officer gave him the impression that if he provided this information the police would not tear his house apart. Cross-examination [ 21 ] Kettle agreed that the arresting officer was respectful and not aggressive in any way during the entirety of his detention and that he, in turn, was trying to be cooperative.

Kettle knew that the officer was interested in the cannabis. Again, in response to questioning, Kettle explained that he was an agreeable person and felt he was helping the RCMP. He volunteered to the Court that “weed was legal anyways so I had nothing to hide”. [ 22 ] Once Kettle was brought to the detachment, he was placed in a cell quickly and a long time passed before he got the opportunity to call legal counsel. He admitted that he was given a copy of the warrant to read before he spoke with legal counsel. Constable Kevin Albert Examination-in-chief

[ 23 ] Cst. Albert has been a member of the RCMP since 2018 and has been stationed in Port aux Basques for the entire duration of his service. He was assigned the responsibility of arresting Kettle during a planning meeting held prior to the execution of the warrant. [ 24 ] When he arrived at Kettle’s residence there were several other officers on the scene and Kettle was in custody. The arrest occurred outside the house below the front steps. [ 25 ] Cst. Albert testified he placed Kettle under arrest following the police caution and the right to counsel, which he provided him from memory.

He did this again on a second occasion from the police issued card when Kettle was detained in the police cruiser. Also, as part of the arrest and detention process he informed Kettle he was being charged with the sale of cannabis without a licence. [ 26 ] According to Cst. Albert, cell service in the Searston area was poor and he did not allow people to use his personal cell phone. At this point in his career he did not have a police issued cell phone. When asked whether he ever gave Kettle the impression that the police planned to ransack his house, Cst.

Albert denied ever doing so. [ 27 ] After Kettle made the utterance about the location of the evidence, Cst. Albert admitted he passed on the information to Cst. Levasseur-Brie. Cst. Albert did not participate in the search. On further questioning, he testified his experience and training taught him to check underneath beds and in closets as possible storage locations for drugs. Cst.

Albert did not stick around to see if the information Kettle provided bore out because he felt it was important to get Kettle back to the detachment to allow him to contact counsel in private. [ 28 ] As for the timeline following Kettle’s arrest, Cst. Albert says he was on the scene for somewhere between 16 - 17 minutes and that it took 37 minutes or more to drive back to the detachment where they processed and placed Kettle in cells at around 20:35 hours. In the area where the cells were located there was only one room where a detained person could speak privately with legal counsel.

In terms of the timing as to when Kettle was provided the opportunity to call legal counsel, he believed Kettle was second following Anderson. Kettle spoke to legal counsel at 21:25 hours. Cross-examination [ 29 ] Cst. Albert re-confirmed his examination-in-chief that the details of the warrant were explained to Kettle while he was detained in the police cruiser and that following the reading of the police caution and right to counsel he was writing in his log book when Kettle made an utterance about the location of the evidence.

He was firm that at no point did he elicit the information or start up a conversation with Kettle. [ 30 ] Anderson’s legal counsel spent a significant portion of his cross-examination on the pre-search meeting and any discussion which occurred about the plan of arrest. Cst. Albert admitted that during the meeting the team never discussed how it would implement Anderson’s and Kettle’s right to contact legal counsel without delay while on the scene.

Rather, the plan was to bring whoever was arrested back to the detachment and provide them with the counsel room in the cells area. [ 31 ] When asked if he or other members of the team considered alternatives such as bringing a satellite phone or offering the accused a police issued phone, Cst. Albert was initially ambiguous in his answers citing that this would raise privacy concerns but later admitted that it was not something they directed their minds to.

Counsel for Anderson then suggested that the police knew that Kettle’s right to counsel would be effectively suspended because of the 42 kilometer distance between Searston and Port aux Basques. [ 32 ] Cst. Albert also agreed with Anderson’s counsel that approximately three minutes after Kettle confirmed his wish to speak with counsel Kettle told him the location of the evidence. He also conceded that while this was a very important fact, he did not record in his log book that this was a spontaneous utterance. [ 33 ] Upon further questioning, Cst.

Albert agreed if Kettle had his own cell phone, or his wife’s or son’s, he could have used it but he did not inquire about this possibility because he understood the area had poor service. When asked if he had a cell phone booster, Cst. Albert replied he did not know what that was. Finally, when asked whether the team thought about the possibility of securing a room in Kettle’s residence first, which contained a landline, so as to allow for a private place to contact counsel, again Cst.

Albert said this was not something that was discussed. issues [ 34 ] The parties are in agreement that the issues are the following: a. Was the delay between the time of arrest and access to counsel a breach of

section 10(b)? b. Was the information provided by Kettle to the police in violation of his

section 10(

b) right to access counsel? c. What is the onus and standard of proof Kettle and Anderson must meet when seeking relief under section 24(2)? d. If the Court finds there was a violation, should the statements made by Kettle be excluded under section 24(2)? e. Should I decide to exclude the statements under section 24(2), was the derivative evidence that was seized by the police during the execution of the warrant independently discoverable? Issues a. and b.: Did the police delay in implementing Kettle’s right to access counsel without delay? If so, was the information he provided to the police in violation of his

section 10(

b) right? The law relevant to

section 10(

b) analysis

Onus [35] The onus is on Kettle and Anderson to establish on the balance of probabilities that there has been a breach of the right to retainand instruct counsel without delay. The meaning of “without delay” [36] Once a detained person has indicated a desire to speak to counsel, he/she/they should be afforded the opportunity to do sowithout delay. [37] In R. v.

Suberu, 2009 SCC 33, at paragraph 42, the Supreme Court of Canada described the term in the following manner: [42] What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room formisunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a rightthat imposes specific obligations on the police.

In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b).Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, thepolice have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediatelyupon detention. [38] The right exists for the purpose of ensuring that someone who is arrested or detained is likely to require immediate legal advicethat they cannot access without help due to their detention (see R. v.

Bartle, (SCC), [1994] 3 S.C.R. 173, 92 C.C.C. (3d)289 (S.C.C.) at para. 191; R. v. Suberu at para. 41; and R. v. Rover, 2018 ONCA 745 at para. 34). [39] Detention also raises questions of immediate importance relating to the detainee's rights during detention, including the rightagainst self-incrimination (see Bartle, at para. 191 and R. v. T.G.H, 2014 ONCA 460 at para. 4). [40] Beyond this, the right to counsel is also important in providing reassurance and advice on such questions as how long thedetention is likely to last, and what can or should be done to regain liberty (see R. v.

Debot, (SCC), [1989] 2 S.C.R.1140, 52 C.C.C. (3d) 193 (S.C.C.) at p. 1144 and R. v. Suberu, at para. 41). As Doherty J.A. said in R. v. Rover at para. 45: [45] The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice andguidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the policewhile detained.

The psychological value of access to counsel without delay should not be underestimated. [41] A routine policy of delaying an arrested person’s exercise of the right to counsel until a search warrant is executed violates s.10(b). While it may sometimes be justifiable for police to delay for this purpose, any such delay must be based on specific pressingcircumstances, such as a risk of destruction of evidence or police or public safety (see R. v. Rover). [42] Crown counsel Mr.

Mills suggested that post-Suberu, there has been extensive jurisprudence from Canadian courts examiningwhat may constitute a permissible delay by the police. Access to a landline while a search warrant is being executed in a house [43] In R. v. Pileggi, 2021 ONCA 4, the Ontario Court of Appeal found that the police were justified in waiting to permit theaccused to speak with counsel until he was transported back to the police detachment. [44] It rejected the accused’s argument that the police ought to have provided him with access to the telephone in his house whilethe warrant was being executed.

At paras. 75 – 77, Trotter J.A. said the following:

(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, beforebeing 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 ofpolicing, he always waited to facilitate access to counsel until the accused person was transported to the police station "where they canhave a private conversation, where we can maintain custody of them".

This would not have been feasible at the house, which was beingsearched at the time. The appellant was handcuffed; a decision that the trial judge found to be reasonable. As explained above, I agreewith her conclusion. [77] In these circumstances, it is difficult to fathom how the police could have accommodated a private conversation at the appellant'shome. Consultation in private is a vital component of the s. 10(

b) right: R. v. Playford (1987), (ON CA), 63 O.R. (2d)289, [1987] O.J. No. 1107 (C.A.), at para. 31; R. v. McKane, (ON CA), [1987] O.J. No. 557, 35 C.C.C. (3d) 481(C.A.) at p. 134 (QL). The appellant's right to consult counsel in private would have been compromised by attempting to facilitate contactat the house while a search was underway. [45] It should be noted that in making this finding, Trotter J.A. later qualified its context by observing the police were diligent inhelping the detained persons get in touch with duty counsel and said the following at paras. 88 and 89:

[88] Standing alone, the efforts of the police to contact duty counsel were reasonable, at least in the early stages. P.C. Jacome wasdiligent in placing calls to the duty counsel phone line. She was successful in promptly facilitating Ms. Pileggi's access to counsel. Sheemployed the same approach with the appellant, but with disappointing results. However, after she spoke to the appellant at 3:42 p.m. toadvise 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 immediatelyafter being told that she should wait an hour until a different lawyer was available. I disagree. She acted diligently in calling right awayand leaving a message, just as she did the first time around. She was aware of the importance of putting the appellant in touch withcounsel 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 hourbefore calling back, but there was no evidence on this issue.

Waiting until returning to the police detachment [46] In R. v. Nelson, 2010 ABCA 349, the Alberta Court of Appeal found that where the police have a significant distance to travelprior to reaching a secure location to allow access to counsel does not necessarily lead to the result that a breach of

section 10(

b) hasoccurred. [47] In Nelson, the Court of Appeal ruled that a delay of 1.5 hours from the time of the accused’s arrest until he was placed incontact with counsel did not constitute a Charter breach. However, the implementation breach did not result in an incriminatingstatement from the accused. At para. 8, the Court noted [8] The trial judge held that when the police first arrested the appellant at the airport, they should have inquired about using theRCMP facilities at the airport to permit the appellant to exercise his right to counsel.

However, no evidence was obtained from theappellant until after he spoke with his counsel of choice in person. Although the trial judge held that this implementation delay was a s.10(

b) breach, he found no connection between this breach and the statement obtained from the appellant. The provision of a police cell phone to facilitate contact with counsel [48] In R. v. Taylor, 2014 SCC 50 at para. 27, the Supreme Court held that police are under no obligation to permit an accused touse their personal cell phone to exercise their right to counsel: 27 The majority in the Court of Appeal was of the view that in light of Cst. MacGillivray's acknowledgement that he could have providedhis own cell phone, the "'mistake' in failing to provide it" gave rise to a breach of s. 10(b).

The Crown takes issue with this finding, and Iagree that in light of privacy and safety issues, the police are under no legal duty to provide their own cell phone to a detained individual. [49] However, the duty to facilitate contact with counsel entails the duty to offer an available telephone to the detainee (R. v.Manninen, (SCC), [1987] 1 S.C.R. 1233, 34 C.C.C. (3d) 385 (S.C.C.); R. v. Ross, (SCC), [1989] 1S.C.R. 3, 46 C.C.C. (3d) 129 (S.C.C.); R. v. Black, (SCC), [1989] 2 S.C.R. 138, 50 C.C.C. (3d) 1 (S.C.C.); R. v. Brydges, (SCC), [1990] 1 S.C.R. 190, 53 C.C.C. (3d) 330 (S.C.C.); and Bartle, supra).

This includes ensuring that there is atelephone located on the premises (R. v. Feeney, (SCC), [1997] 2 S.C.R. 13, 115 C.C.C. (3d) 129 (S.C.C)). The duty tooffer an available telephone is met as long as the person is provided with access to a telephone (Taylor, supra). The person must also beable to consult with counsel in private (see R. v. Cairns (2004), (ON CA), 182 O.A.C. 181, 60 W.C.B. (2d) 228 (Ont.C.A.) and R. v. O'Donnell, 2004 NBCA 26). “Holding off” on questioning or conduct of an investigative nature to elicit evidence [50] In R. v.

Hebert, (SCC), [1990] 2 S.C.R. 151, 57 C.C.C. (3d) 1 (S.C.C.) at paras. 76 and 80, the SupremeCourt addressed the issue of non-investigative versus investigative questioning: 76 . . . When the police use subterfuge to interrogate an accused after he has advised them that he does not wish to speak to them, theyare improperly eliciting information that they were unable to obtain by respecting the suspect's constitutional right to silence: thesuspect's rights are breached because he has been deprived of his choice.

However, in the absence of eliciting behaviour on the part ofthe police, there is no violation of the accused's right to choose whether or not to speak to the police. If the suspect speaks, it is by his orher own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police. 80 The essence of the right to silence is that the suspect be given a choice; the right is quite simply the freedom to choose -- the freedomto speak to the authorities on the one hand, and the freedom to refuse to make a statement to them on the other.

This right of choicecomprehends the notion that the suspect has been accorded the right to consult counsel and thus to be informed of the alternatives andtheir consequences, and that the actions of the authorities have not unfairly frustrated his or her decision on the question of whether tomake a statement to the authorities. [51] The Charter violation under consideration in Hebert was s. 7 (the right to remain silent). While the majority did not engage in as. 10(

b) analysis, it did note that it was a related right and made the following observation in dicta at para. 52: 52 The most important function of legal advice upon detention is to ensure that the accused understands his rights, chief among which ishis right to silence. The detained suspect, potentially at a disadvantage in relation to the informed and sophisticated powers at the

disposal of the state, is entitled to rectify the disadvantage by speaking to legal counsel at the outset, so that he is aware of his right not tospeak to the police and obtains appropriate advice with respect to the choice he faces. Read together, ss. 7 and 10(

b) confirm the right tosilence in s. 7 and shed light on its nature. Position of the parties The Crown [52] Mr. Mills states that shortly after being read his rights, Kettle made a spontaneous utterance that was unprompted and notelicited by questioning from the police. He points to what he called the internal inconsistencies of Kettle’s evidence, in particular hisembellishment of the timeline it took the police to get him in touch with counsel. In Mr. Mills’ view, it was part of an overall transparentattempt to make the police look bad concerning their implementation of the right to counsel. [53] Mr.

Mills invited the Court to find that Cst. Albert’s evidence was more reliable based on his timing entries and his overalldemeanor during testimony. By way of example, he pointed to Cst. Albert’s acknowledgement during cross-examination that he shouldhave recorded the circumstances surrounding the utterance by Kettle in his log book; however, because Cst. Albert did not make an entryabout this fact, the Court should not draw an inference that it did not occur. The Defence [54] Mr. Stagg and Mr.

Ash acknowledged during oral submissions the case turned on whether the Defence discharged their onus inestablishing that the police failed in their constitutional obligation to implement Kettle’s immediate right to counsel. [55] The focus of their argument centered on the evidence which disclosed the police simply defaulted to relying on the practice ofgetting Kettle and Anderson back to the detachment to allow them to contact counsel in the private room reserved for this purpose. [56] In the Defence’s view, this demonstrated a cavalier attitude by the police of “we will get to it when we get to it” concerning theimportance of the right to counsel.

They argue the police had a real and meaningful opportunity to address the immediacy component ofthe right during the planning meeting where they could have discussed options such as the availability of cell boosters, the availability ofa satellite phone or securing a landline within the residence. Instead, they made no effort to do so. Analysis of alleged s. 10(

b) breach [57] It is uncontested Kettle was arrested by Cst. Albert and then detained in his police cruiser. It is also uncontested that Kettle wasadvised of his right to counsel and indicated to Cst. Albert he wished to avail of that right. What occurred thereafter is the main issue ofcontention. Counsel have challenged the creditability and reliability of the other party’s testimony about what happened subsequently. [58] The Ontario Court of Appeal in R. v. Noel, 2019 ONCA 860 restated the importance of facilitating access to counsel in a timelymanner.

At paras. 23 - 25, it stated: 23 The right to consult counsel without delay exists because those who are arrested or detained are apt to require immediate legal advicethat they cannot access without help, because of their detention: R. v. Bartle, (SCC), [1994] 3 S.C.R. 173, at p. 191; R v.Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 41: R. v.

Rover, 2018 ONCA 745, 143 O.R. (3) 135, at para. 34. 24 For example, an arrest and the search of one's home can raise urgent legal issues about the lawfulness of the arrest and the obligationto submit, as well as the validity of the search warrant and the scope of authority that the search warrant gives to the police. Suchinformation could be useful in preventing an unjustified search, before it happens: R. v.

Debot, (SCC), [1989] 2 S.C.R.1140, at p. 1144. 25 Detention also raises questions of immediate importance relating to the detainee's rights during detention, including the right againstself-incrimination: Bartle, at p. 191; R. v.

T.G.H, 2014 ONCA 460, 120 O.R. (3d) 581, at para. 4. [59] In dicta at paras. 18 – 19, the Court of Appeal made the following observation: 18 Specifically, the trial judge found the seriousness of the breach to have been "attenuated somewhat in this case, because the policecomplied with their obligation to hold off questioning the arrestee until after contact with counsel was facilitated." This passage containstwo errors. 19 First, had the police attempted to use Mr. Noel as a source of self-incriminating evidence before he had a reasonable opportunity tospeak to counsel, that would have been yet another s. 10(

b) breach. The seriousness of the breach the trial judge did find cannot beattenuated by the fact that the police did not commit an additional breach of Mr. Noel's rights. [60] I find that during the pre-search planning meeting, no consideration was given as to how the team would facilitate the right tocounsel on the scene immediately following the execution of the warrant.

[ 61 ] This meeting presented the police with more than a reasonable opportunity to discuss possible options as to how best to implement this right immediately as opposed to waiting until Kettle and Anderson were back at the detachment. The options included use of satellite phones, police issued cell phones, et cetera.

Instead, they assumed there was no cell service available in the area and relied upon a default practice of providing detained persons with opportunity to consult legal counsel in a private room at the detachment. [ 62 ] While I do not find that this was deliberate on the part of the police, it was nonetheless an egregious error in judgment rising to the level of gross negligence. Not to address this inalienable Charter right while discussing how to conduct the search and who to arrest is an affront to a person’s right to counsel.

It matters not whether the cell service near Kettle’s residence in Searston was poor, no effort was made by the police to discuss how to attempt to implement this right at the scene. [ 63 ] Nor does it matter whether Kettle’s statement was a spontaneous utterance or elicited by a direct question from, or impression created by, Cst. Albert that his residence would be ransacked. The important factor is that Kettle was detained when he made the statement.

In situations where persons are detained by the police there is an objective imbalance of power that causes them to feel they are at the mercy of the police. [ 64 ] I hold that no steps were taken at the pre-planning meeting to implement Kettle’s right to counsel. This egregious failure to plan for the implementation of his Charter right denied Kettle of an immediate lifeline to guard against the possibility of self- incrimination while his home was being searched. Accordingly, it constituted a violation of his s. 10(

b) right to counsel. For these reasons, I accept that Kettle and Anderson have established the onus of proving a breach of s. 10(

b) on the balance of probabilities. Issues c. and d.: What is the onus and standard of proof that must be met when seeking relief under s. 24(2) once a s. 10(

b) violation has been established? The law relevant to s. 24(2) - exclusion of evidence The standard of proof [ 65 ] The onus is on Kettle and Anderson to establish on the balance of probabilities that relief should be granted under s. 24(2). [ 66 ] The inquiry is an objective one, which asks whether a reasonable person, informed of all relevant circumstances and, the values underlying the Charter , would conclude that the admission of the evidence would bring the administration of justice into disrepute (see R. v. Grant , 2009 SCC 32 at paras. 67 - 68 ).

Should the statement be excluded? [ 67 ] According to the Supreme Court in Grant , when applying the s. 24(2) analysis courts must assess and balance three considerations. This was stated concisely by my colleague O’Brien, J. at para. 51 in R. v.

Price , 2020 NLSC 124 : [51] In Grant , the Supreme Court Canada stated that in applying s. 24(2), courts must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: a. the seriousness of the Charter infringing state conduct; b. the impact of the breach on the Charter protected interests of the accused; and c. society's interest in the adjudication of the case on its merits (see paragraph 71). a.

The seriousness of the Charter infringing state conduct [ 68 ] In order to determine the effect of the admission of the evidence on public confidence in the justice system, a court must consider the seriousness of the violation in terms of the gravity of the offending conduct by the state authorities who are required to uphold the rights guaranteed by the Charter (see Grant , para. 73 ). [ 69 ] When I assess the seriousness of the breach, I have considered Cst.

Albert’s evidence that in the meeting prior to the execution of the search warrant there was no discussion about how he or other members of the team could immediately implement the right to counsel at the scene of the search. The totality of this evidence was clear, the right to counsel did not come up as a topic for consideration. [ 70 ] As the arresting officer assigned to Kettle, once he provided him with the police caution and right to counsel in the police cruiser, Cst.

Albert made no effort to implement the right immediately because he assumed that cell service was poor and there was no ability to provide for privacy at the scene. Instead, he planned to suspend its implementation until he returned Kettle to the detachment to be processed.

While not obligated to provide Kettle with his own personal cell phone, he could have inquired whether there was a police issued phone or one available from Anderson or Kettle’s son. [ 71 ] Had the police directed their minds to this issue in advance of the execution of the warrant then it would have seriously reduced the risk of self-incrimination and they would have acquitted their duty to show reasonable diligence in realizing their implementation obligations under s. 10(b) (see R v MacInnes , 2020 BCSC 2232 ).

[ 72 ] Even if the breach could be described as unintentional, what happened here reflects an unacceptable and negligent approach to safeguarding Kettle’s s. 10(

b) rights. The police conduct violated an established constitutional obligation. As recently noted by the Ontario Court of Appeal in R. v. Griffith , 2021 ONCA 302 at para. 66 : 66 . . . "[t]he law around s. 10(

b) is clear and long-settled. It is not difficult for the police to understand their obligations and carry them out": R. v. Noel , 2019 ONCA 860 , at para. 34 . The officers' collective negligence in failing to uphold the appellant's s. 10(

b) rights precludes a finding of good faith: see Le , at paras. 143, 147; Pileggi , at para. 119 ; and Hobeika , at para. 81. [ 73 ] I find the failure of the police to consider any possible options to implement Kettle’s right to counsel immediately following his arrest to be a serious breach of s. 10(b). b. The impact of the breach on the Charter -protected interests of the accused [ 74 ] Under this factor of the Grant analysis, para. 76 of Grant states as follows: 76 . . .

The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. [ 75 ] To determine the seriousness of the limitation on the accused's Charter- protected interests, it is necessary to look to the interests engaged by the limited right and then examine the degree to which the limitation impacted on those interests (see Grant , at para. 77 and R v Price at para. 57 ). [ 76 ] As noted by the Supreme Court in Hebert , the intersection of s. 10(

b) and s. 7 includes a person’s right against self- incrimination. This analysis was explored further by the Supreme Court in Grant at para. 95 : [95] The second inquiry considers the extent to which the breach actually undermined the interests protected by the right infringed. Again, the potential to harm the repute of the justice system varies with the seriousness of the impingement on the individual's protected interests. As noted, the right violated by unlawfully obtained statements is often the right to counsel under s. 10(b).

The failure to advise of the right to counsel undermines the detainee's right to make a meaningful and informed choice whether to speak, the related right to silence, and, most fundamentally, the protection against testimonial self-incrimination. These rights protect the individual's interest in liberty and autonomy. Violation of these fundamental rights tends to militate in favour of excluding the statement. [ 77 ] While the Supreme Court referenced the failure to advise, the failure to immediately implement is a conjoint aspect of s. 10(b).

Kettle was never provided with a meaningful and informed choice not to say anything to Cst. Albert because the opportunity to contact legal counsel was never presented to him until he was returned to the detachment. c.

Society’s interest in the adjudication of the case on its merits [ 78 ] Under the third factor of the Grant analysis, I must consider and balance the negative impact of the admission of the evidence on the repute of the administration of justice with the impact of failing to admit the evidence (see Grant at para. 79 ). [ 79 ] Disrepute will result when evidence is admitted that has the effect of depriving an accused of a fair hearing if the public perceives its admission as “judicial condonation of unacceptable conduct by the investigational and prosecutorial agencies”.

On the other hand, disrepute may also result from the exclusion of evidence as it may undermine the truth-seeking function of the criminal justice system and “render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute” (see Grant , para. 81 ). [ 80 ] I have considered and balanced the three Grant factors and have determined the statement made by Kettle to Cst. Albert should be excluded.

More harm to the administration of justice would result if the statement was admitted as it would effectively condone the failure by the police to direct their minds to the immediacy component of implementing the right to counsel. [ 81 ] The police had the opportunity to canvass possible options during the planning stage prior to the execution of the warrant and did not. This constitutes a complete disregard of an accused’s right to counsel. Kettle should have been afforded with some opportunity to implement his right while detained in the police cruiser.

Instead, there was a conscious decision by the police to suspend it until Kettle was returned to the detachment. In the circumstances, this was too late and meaningless for Kettle. Issue e.: Should the evidence seized at Kettle’s residence be considered derivative and excluded?

Derivative evidence and the discoverability doctrine. [ 82 ] In Grant , the Supreme Court also addressed the conundrum facing courts in determining whether the physical evidence seized qualified as derivative evidence which was discovered as the result of an unlawfully obtained statement. [ 83 ] The Court moved away from the notion that evidence should be categorized as being either “conscripted” where the accused statement was necessary to the location of the evidence or “discoverable” where the evidence would have been obtained in any event (see Grant , para. 119 ). [ 84 ] Instead, they opted for a revised approach in which discoverability should not be determinative of admissibility (see Grant , para. 121 ).

The Court noted it still retained a useful role in assessing the actual impact of the breach on the protected interests of the accused by allowing the court to assess the strength of the causal connection between the Charter -infringing self-incrimination and the resultant evidence. [ 85 ] The more likely the evidence would have been obtained without the statement the lesser the impact of the breach on the

accused’s underlying interest against self-incrimination. Conversely, where it cannot be determined with any confidence whether the evidence would have been discovered absent the statement then discoverability will have no impact on the section 24(2) inquiry (see Grant , para. 122 ) [ 86 ] However, should the Court find that egregious police conduct severely impacted the accused’s protected interests then it may exclude the evidence notwithstanding the evidence may be reliable (see Grant , paras. 116 - 127 ).

Analysis [ 87 ] I have already determined the failure of the police to plan for the implementation of the right to counsel at the scene of the search constituted a grossly negligent disregard that led to a serious breach of s. 10(b).

Had immediate steps been taken upon Kettle’s detention it would have significantly reduced, if not eliminated, the possibility of a self-incriminating statement. [ 88 ] As such, I find the breach weighs heavily in favour of exclusion of the cash and cannabis found during the search of Kettle’s residence. [ 89 ] As for the impact of the breach, I have also considered the intersection of s. 10(

b) with s. 7 and how the failure to immediately implement the right to counsel at the scene significantly affected Kettle’s right to make a free and informed choice about whether he should speak or cooperate with the police. [ 90 ] During closing argument, the Defence focused on the importance of the temporal connection between the statement and the location of the cannabis and the cash saying that they were concealed and not in plain view. They referred the Court to the Supreme Court of Canada decision in R. v.

Debot , at para. 8 : 8 . . . [d]etermining the exclusion or admission of evidence obtained as a result of an unreasonable search is quite different from determining the exclusion or admission of evidence obtained as a result of a search which was perfectly valid but which was carried out contemporaneously with a s. 10(

b) violation. While the violation of s. 8 is directly linked to the obtaining of the evidence, the violation of s. 10 could be very remote: indeed it could be totally unrelated to the finding of the evidence. For example, in this case the appellant was subjected to a warrantless "frisk" search authorized by s. 37 of the Food and Drugs Act. The search was carried out contemporaneous to a violation of the appellant's s. 10(

b) rights under the Charter . But as Wilson J. notes in her discussion of s. 24(2) in this case, the evidence obtained was real evidence the existence of which, and I hasten to add its seizure, was totally unrelated to the Charter violation. This link, or in this case the lack of it, of course makes a great difference when assessing whether the repute of our system of justice will be harmed by the admission of the evidence. [ 91 ] Crown counsel Mr. Mills admitted that the police could not unhear what they were told by Kettle. However, the evidence was not well concealed and in examination-in-chief Cst.

Albert testified that as part of his training he was taught to search underneath beds and to look through closets. The Defence argument that there was a temporal and causal connection is a tenuous one at best. Instead, the Court should make a common sense finding that it was discoverable thus lessening the impact on the accused and favouring admission. [ 92 ] Even though Cst. Albert testified that he was trained to look underneath beds and to check closets, he was the arresting officer and did not participate in the search of Kettle’s residence.

Moreover, there is most certainly a temporal connection between the timing of Kettle’s statement, its communication by Cst. Albert to Cst. Levasseur-Brie and the location of the cannabis and cash. [ 93 ] Given the totality of this evidence, it would involve speculation on my part as to whether the cash and the cannabis would have been found without the statement from Kettle.

I am reminded that as part of the Grant analysis, if I cannot determine with any confidence that the evidence would have been discoverable absent the incriminating statement, then discoverability will not have any impact on my s. 24(2) analysis. On this basis, the second Grant inquiry favours exclusion of the evidence. [ 94 ] As for the third Grant inquiry, it presumptively favours admission, as without the physical evidence of the cannabis and cash the Crown, in all likelihood, will not be able to proceed with the prosecution.

However, I am again reminded of the Grant analysis that if I find there was egregious police conduct that impacted Kettle’s protected interest, I can exclude the evidence notwithstanding its reliability and importance to the Crown’s case. [ 95 ] In the final analysis, when I weigh and balance all of the Grant considerations, I find that the admission of the evidence would bring the administration of justice into disrepute.

The reckless conduct of the police in not directing their minds to the importance of implementing Kettle’s right to counsel immediately following his arrest and detention impacted his Charter- protected interest. Notwithstanding the cannabis and cash constitute reliable evidence, it should be excluded. disposition [ 96 ] Kettle and Anderson have established a breach of their

section 10(

b) right to counsel. The statement made by Kettle to Cst. Albert is not admissible into evidence pursuant to section 24(2). The cannabis and cash seized from his residence are not admissible into evidence pursuant to section 24(2). _____________________________ Peter N. Browne Justice