2024 QCCQ 418, 2024 QCCQ 418

Labarge c. R. 2024 QCCQ 418 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF LONGUEUIL TOWN OF LONGUEUIL “Criminal and Penal Division” No: 505-01-183071-238 DATE: February 2 nd , 2024 ______________________________________________________________________ BY THE HONOURABLE JEAN-PHILIPPE MARCOUX, J.Q.C. ______________________________________________________________________ KYLE LABARGE Applicant-Accused v. HIS MAJESTY THE KING Respondent-Prosecutor ______________________________________________________________________ DECISION ON A MOTION TO EXCLUDE EVIDENCE FROM A SEARCH ALLEGED TO BE INCIDENT TO THE ARREST AND ALLEGED BREACHES OF THE RIGHT TO RETAIN AND INSTRUCT COUNSEL

Section 8 , 10b) and 24(2) of the Canadian Charter of Rights and Freedoms [1] ______________________________________________________________________ I. INTRODUCTION [ 1 ] The applicant is facing two counts of possession for the purposes of trafficking substances included in

schedule I and IV, committing thereby two indictable offences [2] . He produced a motion to exclude evidence based on several alleged Charter breaches. [ 2 ] Here are the main issues at stake. First, the applicant claims that the warrantless search of his backpack which led to the seizure of various items and drugs infringed his right to be secure against unreasonable search and seizure guaranteed by s. 8 of the Charter .

Second, he argues that when he was arrested for a breach of curfew and then for possession for the purposes of trafficking drugs, his right to be fully informed, to retain and instruct counsel of his choice without delay protected by s. 10b) of the Charter was infringed. Third, in case of any Charter violation, having regard to all circumstances, he contains that the admission of the disputed evidence would bring the administration of justice into disrepute under s. 24(2) , thereby requiring its exclusion. [ 3 ] The respondent denies any Charter violation.

He claims that the backpack search was lawful, was done for police safety purpose and therefore was incident to arrest. There would be no s. 10

b) violation even if both officers only gave the rights verbally because the essential information were given to the applicant, he never asked to speak to a lawyer and he ultimately refused to exercise

his right once he was at the police station. In the alternative where there would be any Charter infringement, the evidence should not be excluded especially regarding the third Grant factor because of the nature and quantity of the illegal drugs found. II. CONTEXT [ 4 ] On January 11, 2023, at 11:22 p.m., officers Chamberland and Beaulieu received a call from the Correctional Service for a curfew verification concerning the applicant, a federal parolee, who had to be at a specific address in Brossard from 10:00 p.m. to 6:00 a.m. and was not answering the phone.

Officers went to the applicant’s door and knocked several times without answer. [ 5 ] Around midnight, they went back to the police car to inform the Correctional Service of this situation. Before making a call, a taxi parked parallel to them and, from the picture they had, they recognized the applicant exiting. They went out with the intent to arrest him, grabbed both his arms, explained their presence, and directed him towards the police car. [ 6 ] At 12:05 a.m., the applicant was immediately arrested for a breach of curfew. He asked the permission to take off his backpack and wanted to go to the bathroom.

Both officers were holding him, and Officer Chamberland had to insist to remove the bag under his protest. The backpack was removed from his hands and placed on the top of the police car. A pat-down search was performed on the applicant who was then handcuffed and placed inside the police car. [ 7 ] From this search, Officer Chamberland found two iPhones on the applicant’s right side. Officer Beaulieu proceeded to the left side and found, inside his jacket pocket, a “pretty big bundle” of money. He found that a little suspicious, as people increasingly use credit cards rather than cash.

Officer Beaulieu explained that the money bundle found was possibly folded, had a thickness of two inches, two inches and a half, and contained mostly bills of $20 with some bills of $50 and $100. [ 8 ] At 12:09 a.m., Officer Chamberland decided to search the backpack and its content before heading to the police station. He found an iPad, an Apple laptop, chargers for both devices and a black bag inside. He decided to search this other bag and found three clear Ziploc bags.

The first had brown powder inside, the second white powder which seemed to be cocaine and the third one white powder that seemed more granulated. Those substances were eventually brought to the drug seizure room where they were weighed. The first bag weighed 146 grams and the “Nik test” was positive for methamphetamine. The second bag weighed 79 grams and the “Nik test” was positive for cocaine.

The third bag weighed 34 grams and the “Nik test” was positive for cocaine. [ 9 ] The certificates of analysts [3] demonstrate, however, that the substances analyzed are two Annex I substances, protonitazene and heroin, as well as one Annex IV substance, bromazolam. Two expert reports [4] concerning the nature and effect of those three substances reveal they are opioids acting as central nervous system depressants that can have very serious consequences for the user including death.

According to one of those experts, protonitazene is poorly documented in literature and there would be no controlled clinical studies on humans. It is a substance that could be as dangerous and powerful as fentanyl. As for the money seized on the applicant, it was around $4,000. [ 10 ] At the time of the arrest, those substances appeared to be illegal drugs and the applicant was arrested for possession of drugs for the purposes of trafficking.

Because of this new arrest, the large quantity of the substances found and the fact that the applicant was already on conditional release concerning narcotics, Officer Chamberland advised his supervisor that they were going to take him to the police station. [ 11 ] For both of his arrests, the applicant’s rights were only given verbally. No caution cards were used or referred to by both officers and the information disclosed was incomplete. The first opportunity to consult a lawyer was given by the officers only at the police station, less than an hour after his first arrest.

As he was not fully informed of his rights upon both arrests, the applicant did not request to exercise them at that time. [ 12 ] The evidence is contradictory as to what happened at the police station. According to the officer’s testimony, after an initial refusal, the applicant said that he personally had a lawyer, but did not want to provide her name since he did not want her to know he was arrested. After a few unsuccessful steps taken at the officers’ initiative to reach duty counsel, they concluded that the applicant refused to exercise his right to consult a lawyer.

According to the applicant's testimony, he gave the officers the first name of his lawyer since he did not remember her last name and asked multiple times to have access to his cellphone to get her contact information. Those demands were ignored, and he refused to talk to another lawyer. III. ANALYSIS OF S. 8 ARGUMENTS: SEARCHES ALLEGED TO BE INCIDENT TO ARREST [ 13 ] A warrantless search is prima facie unreasonable, and thus contrary to s. 8 of the Charter . The Crown, here the respondent, bears the onus of demonstrating on a balance of probabilities that a warrantless search was reasonable [5] .

In this case, the respondent argues that the warrantless searches were lawful as incidental to the applicant’s lawful arrest for breach of curfew. [ 14 ] At common law, search incident to arrest is an extraordinary power because unlike other police powers, it requires neither a warrant nor reasonable and probable grounds [6] .

It generally permits the police to search a lawfully arrested person and to seize anything in their possession or the surrounding area of the arrest to guarantee the safety of the police and the arrested person, prevent the person's escape, or provide evidence against him [7] . [ 15 ] This extraordinary power is not however unlimited [8] .

It requires that (1) the individual searched has been lawfully arrested; (2) the search is truly incidental to the arrest such that there is some reasonable basis for the search connected to the arrest and the search is for a valid law enforcement purpose, including police and public safety, evidence preservation, or evidence discovery and (3) the nature and extent of the search are reasonable [9] . [ 16 ] As for the second requirement, the police law enforcement purpose must be subjectively connected to the arrest, and the officer's belief that the purpose will be served by the search must be objectively reasonable [10] .

Whether such an objective exists will depend on what the police were looking for and why [11] .

[ 17 ] There are both subjective and objective aspects to this issue [12] . The subjective element of the test means that the Court cannot characterize a search as being incidental to an arrest when the officer is acting for purposes unrelated to the arrest [13] . As for the objective element, it ensures that the police officer's belief that he has a legitimate reason to search is reasonable in the circumstances [14] . [ 18 ] To meet this standard, the police do not need reasonable and probable grounds for the search. Instead, they only require "some reasonable basis" to do what they did [15] .

This is a much lower standard than reasonable and probable grounds [16] . The example given in Caslake is of particular interest in this case: “ 20 […] To give an example, a reasonable and probable grounds standard would require a police officer to demonstrate a reasonable belief that an arrested person was armed with a particular weapon before searching the person. By contrast, under the standard that applies here, the police would be entitled to search an arrested person for a weapon if under the circumstances it seemed reasonable to check whether the person might be armed . […] [17] ” [underlining added] a.

The Pat-Down Search [ 19 ] The Court must first consider if the pat-down search performed by both officers meets the requirements for a search incident to arrest. This search on the applicant was made immediately upon arrest at 12:05 a.m. before he was handcuffed and placed inside the police car. [ 20 ] The first requirement for a valid search incident to arrest is undisputed: the applicant was lawfully arrested for breach of curfew. He was observed by both police officers outside his address around midnight while his curfew was from 10:00 p.m. to 6:00 a.m.

Officer Chamberland explained the situation to the applicant in English and immediately arrested him for this reason. Even if the applicant claims in his testimony that he was not informed of the fact that he was arrested, he admitted he knew he was late for his curfew, that it was the reason why both police officers were there and that they grabbed him by the arms. In any event, the Court accepts officer Chamberland’s testimony on this specific matter which was clear and straightforward. [ 21 ] Second, there was some reasonable basis for this search as it was a direct result from the arrest.

The applicant, a federal parolee breaching his curfew, had to be handcuffed and placed inside the police car. Both officers explained that their intent at that point was to bring the applicant to the police station. [ 22 ] Third, the search was clearly performed for police safety. Officer Chamberland explained that the point of this search was to remove the objects the applicant had on him, as there is a safety concern every time he proceeds to an arrest, it is the way they were taught and the logical way to proceed.

Officer Beaulieu explained that they removed all objects from the applicant’s pockets for their safety since their intent was to take him to the police station which is a controlled environment where they need to avoid any possibility of a weapon being present. [ 23 ] A search of a legally arrested person for weapons or other dangerous articles is necessary as an elementary precaution to preclude the possibility of their use against the police, the nearby public or the arrestee himself [18] .

Therefore, a pat-down search, a relatively non-intrusive procedure, is permitted as it reconciles the public’s interest in the effective and safe enforcement of the law and its interest in ensuring the freedom and dignity of individuals [19] . [ 24 ] Fourth, the search was conducted reasonably by both officers who patted the applicant down only to determine whether he had anything on him to avoid any possibility of a weapon being present. They examined the pockets when they found something without removing clothing and the search took a few seconds.

Accordingly, the pat-down search met the requirements for a valid search incident to arrest [20] . b. The Backpack Search [ 25 ] The Court must then consider if the backpack search performed by Officer Chamberland meets the criteria for a search incident to arrest. This search occurred four minutes after the arrest, at 12:09 a.m., after the applicant was detained, handcuffed, and seated at the rear of the police car. [ 26 ] At that time, Officer Chamberland took the backpack from the top of the police car and searched it and its contents without the applicant’s consent.

According to his testimony, he proceeded this way for four reasons: (1) the applicant was in possession of the backpack during his arrest, (2) the applicant did not want to let it go, (3) the backpack was heavy and (4) it was going to be placed in the police car since the applicant was going to be brought to the police station. [ 27 ] As discussed, the first requirement is met; the applicant was lawfully arrested for a breach of curfew.

Under the second step, since the respondent is only relying on safety concern as a valid law enforcement purpose to justify this search, the Court must determine whether the respondent has met its burden to demonstrate that there was some reasonable basis for this search connected to the arrest and whether this search was done for police and public safety. [ 28 ] As Justice Lamer explained in Caslake , the police must be able to subjectively explain why they searched by reference to a valid purpose related to the arrest, such as police safety, and that reason must be objectively reasonable [21] .

Therefore, in deciding whether the search was a lawful incident to arrest, the Court must determine: (1) the purpose for which the officer conducted the search, (2) whether that purpose was a valid law enforcement purpose connected to the arrest; and (3) whether the purpose identified for the search was objectively reasonable in the circumstances [22] . [ 29 ] Officer Chamberland’s testimony remains unclear whether the reasons he subjectively mentioned to conduct the backpack search were for a valid law enforcement purpose or not.

He never referred explicitly to safety concerns to perform this search while he was able to do so in his testimony concerning the pat-down search discussed earlier. Officer Beaulieu’s understanding was that it was done for safety reasons because they were going to the police station, and they needed to make sure there was nothing in that backpack that could be dangerous as a weapon.

[ 30 ] However, Officer Chamberland is the only one who decided to search the backpack and admitted in cross-examination that he never referred to any security issues in his report or his personal notes. Those notes, as the earliest record created after the facts, may be the most accurate and the closest to what the officer saw or experienced [23] .

As Justice Doherty emphasized in Santana , “the purpose relied on to justify the search at trial must have been the actual reason the police conducted the search [24] ”, not “after-the-fact justifications that did not actually cause the police to conduct the search [25] ”. [ 31 ] In short, the Court would have to implicitly infer from the evidence [26] that the purpose of Officer Chamberland’s search was police safety.

Even considering that Officer Chamberland’s subjective intent was truly for safety purpose [27] , the respondent fails to demonstrate that it was connected to the arrest and that it was objectively reasonable in the circumstances. At that point, there was simply no connection to the arrest for a breach of curfew and there was no objectively reasonable basis related to police safety. [ 32 ] First, the applicant was already arrested, detained, handcuffed, and seated in the police car [28] . Second, the backpack was removed from the applicant and under the exclusive control of the officers.

Third, both police officers were outside the police car with the backpack, and nothing suggests that the applicant could have access to it again in a near future since they were going to the police station [29] . Fourth, officers knew the applicant had no weapons on him and even if he did not want to let go the backpack, he then remained calm and collaborative.

This is unlike the facts of Cloutier where the accused was unpleasant, highly agitated, and verbally abusive such as to arouse a concern for the police officer’s safety [30] . [ 33 ] Fifth, even if officers knew he was a federal parolee, they had no information suggesting that the applicant could be dangerous or that the backpack could contain any kind of weapon. Sixth, the bag was heavy from officer Chamberland’s perspective, but he did not notice anything else.

He did not pat it down to determine, for example, if there was something hard akin to a weapon [31] . [ 34 ] Finally, even if the respondent is not taking that path, Officer Chamberland never referred to the two cellphones and the money bundle found on the applicant to justify that second search. He never claimed he was looking for evidence, neither did his partner.

Therefore, this search was not performed to discover evidence. [ 35 ] Although the context was different [32] , this is not a situation like the one in Tim , where the evidence showed that the officer had just found bullets on the accused during a first pat-down search and then saw more bullets falling from his pants therefore expressing concerns whether he might have missed some items which justified a second pat-down search [33] .

The second search in our case is about a backpack no longer in the possession of the applicant and under the exclusive control of the officers. [ 36 ] In some ways, our case is similar to Jodoin , where police officers decided to perform a complete search of the accused’s backpack after the accused was legally arrested and searched. The backpack was first patted down to ensure officers’ safety and to search for evidence revealing, in the side pocket, the presence of a knife due to the thinness of the fabric which then led to the complete search of the bag to find weapons [34] .

The circumstances of that case led the officers to erroneously believe that they could carry this search incident to the arrest based on the existence of arrest warrants and reasonable grounds to believe that he was committing a breach of condition [35] .

The s. 8 violation was admitted by the Crown in appeal and the only issue was whether the evidence discovered in that backpack should be excluded [36] . [ 37 ] The present circumstances are also akin to the facts in Santana where a police officer searched a vehicle which led to the discovery of the accused’s jacket after being legally arrested for outstanding warrant, handcuffed, and placed in the back of the cruiser with the intention to drive him to the police station.

The officer understood he was entitled to search the immediate area around where the accused had been sitting in the vehicle at the time of the arrest “for officer safety [37] ”. Before putting the jacket into the police cruiser to take it back to the police station with the accused, he searched the pockets checking for weapons or other objects relevant to police safety [38] .

The Court endorses this conclusion from Justice Doherty: “ 31 I see no connection between legitimate law enforcement interests engaged upon the appellant's arrest and Officer Bliss's search for, and seizure of, property from the Jeep, which Officer Bliss believed belonged to the appellant. Officer Bliss was not looking for evidence relating to the reason for the arrest. He had no reason to believe any officer or member of the public was in danger from anything in the vehicle. Clearly, the appellant posed no danger as he was in handcuffs in the back of the police cruiser.

Officer Bliss wrongly believed he was entitled to seize the appellant's property because the appellant was under arrest and was being taken back to the police station. By unlawfully searching the vehicle and taking possession of the jacket, Officer Bliss created a justification for the search of the pockets of the jacket before it was placed in the police cruiser .” [underlining added] [ 38 ] Under the third step of the analysis, the Court must determine whether the nature and extent of the search performed by Officer Chamberland were reasonable in the circumstances.

First, he did not pat the backpack down looking for any possible weapon before conducting the search. Second, he performed a complete search of the backpack and found various items which gave no indication that there could be any kind of weapons inside the bag. He found another black bag that he searched as well in the same manner, and this is where he found the drugs.

In those circumstances, the nature and extent of this search was not reasonable. [ 39 ] Even if the backpack had to be brought to the police station because of the applicant’s arrest, this does not mean that police automatically had the power to perform a complete search without more consideration. The backpack was taken, which is a “seizure” within the meaning of s. 8 of the Charter since police officers took a thing from a person without that person’s consent [39] , but a warrant was required to search its content under the circumstances [40] .

The authority of the police to take possession of a bag held by an accused during his arrest is not what is at stake. It is rather the authority to search that bag as incident to arrest, which is fact-specific [41] . [ 40 ] It must be remembered that the search incident to arrest power does not impose a duty; the police must be in a position to assess the circumstances of each case to determine whether a search meets the underlying objectives [42] . It is not enough to simply invoke it was “a search incident to arrest” as Officer Chamberland did in his cross-examination.

To exercise this power, the criteria must, in fact, be met. Here, considering all the circumstances, the Court concludes that the third requirement for a search incident to the arrest is not satisfied. [ 41 ] Therefore, the respondent fails to demonstrate the second and third requirements to justify a search incident to arrest. For all the reasons set out above, Officer Chamberland did not act lawfully when he searched the backpack, and his actions constituted an

unreasonable search and seizure in violation of s. 8 of the Charter . IV. ANALYSIS OF S. 10B) ARGUMENTS: ALLEGED BREACHES OF THE RIGHT TO RETAIN AND INSTRUCT COUNSEL [ 42 ] S. 10b) of the Charter provides that everyone has the right on arrest or detention “to retain and instruct counsel without delay and to be informed of that right” [43] .

In Bartle , Justice Lamer summarized the three duties that this provision imposes on the police: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger) [44] . [ 43 ] Failure to comply with any of these three duties is a s. 10b) Charter violation [45] . [ 44 ] The purpose of these three duties is to protect any person whose detention puts them in a situation of vulnerability relative to the state [46] .

While under the control of the police, the person suffers a deprivation of liberty and is at risk of involuntary self-incrimination [47] . Therefore, s. 10b) allows the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights [48] . [ 45 ] Accordingly, a detainee is in immediate need of legal advice to protect his right against self-incrimination and to assist him in regaining his or her liberty [49] .

A detainee is entitled as of right to seek such legal advice “without delay” and upon request, to ensure he is treated fairly in the criminal process [50] . a. First Police Duty: Informational Component [ 46 ] This first police obligation, referred to as the informational component, implies that the police must inform the detainee of his right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel [51] .

This first duty is triggered immediately upon arrest or detention [52] . [ 47 ] In Bartle , the Supreme Court emphasized that it is critical for this duty to be comprehensive in scope and that it be presented by police authorities in a timely and comprehensible manner [53] .

This duty is essential, because “[u] nless they are clearly and fully informed of their rights at the outset, detainees cannot be expected to make informed choices and decisions about whether or not to contact counsel and, in turn, whether to exercise other rights, such as their right to silence [54] ” [ underlining added ] . [ 48 ] It follows that a detainee should be fully advised of available services before being expected to assert that right [55] , particularly given that subsequent duties on the police are not triggered unless and until a detainee expresses a desire to contact counsel [56] .

Therefore, in all cases police must advise detainees of the existence and immediate availability of legal aid and duty counsel [57] . This means that the detainee must be informed of any opportunity to access immediate, free legal advice, such as the existence of a 1-800 telephone number [58] . [ 49 ] In sum, the detained must understand from the outset when he is entitled to exercise his right to counsel and how he is permitted to do so [59] .

This duty has been established 34 years ago in Brydges [60] and has constantly been reiterated by the Supreme Court since then [61] . [ 50 ] Generally, this obligation is easily met by officers reading the standard caution card provided which usually contains all the information required [62] .

Indeed, in most cases, one can infer from the circumstances that the detainee understands what he has been told and the police are not required to go further, unless the detainee indicates a desire to retain counsel, in which case they must comply with the second and third duties [63] . [ 51 ] In the presence of special circumstances, such as a linguistic barrier, it could be insufficient to merely rely on a mechanical rights recitation if there is a positive indication that the detainee does not understand his right to counsel [64] .

In those circumstances, police officers must take additional steps to ensure that the detainee comprehends the rights guaranteed by s. 10b), and the means by which they can be exercised [65] . Reasonable effort to explain to the detainee his rights is required [66] . [ 52 ] Since the informational obligations s. 10b) are not onerous, it is not unreasonable to insist that the police resolve any uncertainty that might exist regarding the detainee knowledge of his rights [67] . [ 53 ] Ultimately, the detainee must, in fact, understand the full extent of his rights and how they can be implemented [68] .

For example, the detainee must be aware that he has the right to consult counsel without delay and that duty counsel service is available to him [69] . b. Application to the Facts [ 54 ] From the very beginning, the applicant asked the officers if it was possible to talk in English. Officer Chamberland switched to English for him to understand, which was not a problem for him.

Until the backpack search, Officer Chamberland was the only one speaking with the applicant. [ 55 ] At 12:05 a.m., Officer Chamberland informed the applicant verbally that he was arrested for breaching his curfew, as well as of his right to consult a lawyer, to remain silent and that everything he says from now on could be written down and used in court. For some unexplained reason, he did not use the caution card he had with him to read his rights and significant information was missing. He did

not inform the applicant that he had the right to consult counsel without delay and that he could have free and immediate access to duty counsel service or legal aid. [ 56 ] At 12:09 a.m., given the nature and quantity of substances found in the backpack, as well as the money and the two cellphones found on him, Officer Chamberland advised the applicant that he was then arrested for possession of drugs for the purpose of trafficking. At 12:12 a.m., Officer Beaulieu verbally gave the applicant his rights in the presence of Officer Chamberland who does not remember what his colleague said exactly.

Officer Beaulieu does not remember as well the words he used at that moment neither where he was. He gave him his rights from memory concerning this new accusation, his right to remain silent and to communicate with a lawyer. Again, significant information is missing. [ 57 ] Officer Beaulieu explained that “they [70] ” sometimes use the caution card with all the information needed but most of the time, when “they” arrest someone, “they” only give them their rights verbally, including in English.

Asked by the respondent what is the difference between situations where they use the caution card and when they only do it verbally, Officer Beaulieu was straightforward: “they” use the caution card for impaired driving cases. [ 58 ] In cross-examination, asked what the difference between an impaired driving case and a drug possession case is, as for the use of the caution card, he stopped referring to what “they do” and specified his own habits referring to impaired driving cases: “j’utilise la carte habituellement dans ces cas-là, c’est une mauvaise pratique de ma part, mais c’est uniquement parce qu’on se fait poser mille questions au procès si on ne lit pas la carte ”. [ underlining added ] [ 59 ] He further admitted that he has no specific reason not to use the caution card in this case, other than laziness.

His testimony reveals that he always has the caution card on him and that it contains all the information and the exact wording he has to say. He acknowledges that everything is well explained on the caution card, while the rights given from memory is more of a

summary. His

summary in this specific case was very simple: a reminder of his right to silence and right to contact a lawyer, without more. Moreover, he does not remember exactly what he said and how the applicant reacted when this

summary was given. [ 60 ] Officer Beaulieu claimed he was speaking in English at that point, but according to the applicant’s testimony, he did not understand anything officer Beaulieu said since it was in French, and he does not understand that language. When both officers were talking together in French, he did not understand either. He only understood officer Chamberland when he was speaking in English. [ 61 ] While the officers’ testimonies reveal that most exchanges with the applicant were in English, they admitted that some were in French, without knowing when it occurred.

Even if Officer Beaulieu has a good understanding of the English language, he conceded that it is possible that the applicant said something that he did not understand. He explained that his partner was much more bilingual than him and that he does not remember the exact words he said. [ 62 ] In any event, even if both officers did speak in English to the applicant after both arrests, the s. 10b) informational component is still fundamentally flawed. It is clear from both officers’ testimonies that significant information was missing.

This is especially problematic here since Officer Beaulieu had to fully explain to the applicant his s. 10b) rights in English, which is not his first language as clearly demonstrated by his testimony. He had the English version of the caution card but carelessly did not use it, based on his own bad habits. [ 63 ] In addition, despite the language barrier, nothing suggests that both officers asked the applicant if he understood his rights or even asked him if he wanted to consult counsel without delay.

This is consistent with the fact that, as we shall see, both officers decided without any real assessment of the factual situation that the first opportunity to speak to counsel would only be at the police station since they were already going there. [ 64 ] Finally, there is no evidence that the applicant expressed any waiver of any of his informational rights.

A valid waiver of the informational component of s. 10b) is rare, the standard is very high, and the onus remains on the prosecution to demonstrate that the detainee already fully understands his rights, fully understands the means by which they can be exercised, and adverts to those rights [71] . No such thing was done here. [ 65 ] As a result, the Court finds two s. 10b) breaches from both officers’ conduct upon each arrest. c. Second Police Duty: Implementation Component [ 66 ] If a detainee indicates that he wishes to exercise his rights, the police must provide a reasonable opportunity to do so [72] .

The detainee must also be reasonably diligent in exercising his rights; otherwise, the correlative duty on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended [73] . [ 67 ] This police duty creates a constitutional obligation on the arresting officer to facilitate access to counsel at the first reasonably available opportunity [74] . Indeed, since the detainee is in the control of the police, he cannot exercise his right to counsel unless the police provide him with a reasonable opportunity to do so [75] .

From this obligation flows a duty for the police officer to act proactively "to turn the right to counsel into access to counsel [76] ". [ 68 ] Since the expression "without delay" means "immediately" for the purposes of s. 10(b), only barriers to access or “exceptional circumstances” can justify the brief suspension of this constitutional right [77] , such as a rule of law, a threat to police or public safety, an imminent risk that evidence will be lost or destroyed, or the fact that another police operation in progress may be compromised [78] .

Here are examples of circumstances relevant to assess the reasonableness of the delay: a search is in progress, the proximity of the police station, the police officers’ safety, the presence of a telephone at the scene, issues relating to the confidentiality of any call made and the need to stabilize the scene of the arrest [79] . [ 69 ] The duty to facilitate access to counsel means allowing the detainee to use the telephone for that purpose if one is available [80] . Where a telephone is available at an earlier occasion, there is no justification for delaying the opportunity to contact counsel until arrival

at the police station [81] . The detainee does not need to make an express request to use the telephone, because the duty to facilitate contact with counsel includes the duty to offer him the use of the telephone if one is available [82] . [ 70 ] While common law does not require police officers to allow its use in any given situation [83] , the ready availability of a telephone is still a relevant factor to consider in determining whether a detainee had a reasonable opportunity to consult counsel [84] . Police officers must take this fact and all other circumstances into account when making their decision [85] .

However, it must be reiterated that common law does not yet impose a specific duty on police officers to provide their own telephones to detainees or to have inexpensive devices on hand so that detainees can exercise their right to retain and instruct counsel without delay [86] . [ 71 ] In short, the temporary suspension of the right to counsel can only be justified on compelling grounds, which must be analyzed on a case-by-case basis [87] . Indeed, "constitutional rights cannot be displaced by assumptions of impracticality [88] ”; barriers to access must be proved, not assumed [89] .

While the reasonableness of a given delay is a factual and highly contextual inquiry, the burden is always on the prosecution to prove the circumstances, exceptional or not, that make the delay reasonable [90] . d. Application to the Facts [ 72 ] As discussed earlier, the implementation duty is triggered only if a detainee expresses the wish to exercise his right to counsel.

Considering the previous findings, it comes as no surprise that the evidence does not indicate a desire from the applicant to retain counsel at the scene of both arrests; he was not fully informed of his constitutional rights from the outset as required by the Supreme Court. [ 73 ] Therefore, even if this second police duty was not technically triggered before being at the police station, that is so because of the officers’ own actions.

First, they decided the applicant could only exercise his rights at the police station and this is probably why he was not asked if he wished to contact counsel at the scene of both arrests [91] . Second, it is clear the first opportunity given to the applicant to exercise his rights was only at the police station in a meeting room.

Third, he did not explicitly or implicitly waive his right to counsel before heading to the police station. [ 74 ] In other words, it is not because the applicant failed to express his intent to exercise his rights or because of a lack of diligence from his part after being fully informed of his rights that his constitutional rights were postponed.

Accordingly, the situation is different from Speck where the accused was informed of his rights more than once [92] , including verbally upon his arrest and with a written from at the police station [93] and, most importantly, where the informational component was not at stake [94] .

In those specific circumstances, combined with the fact that the parties debated this issue, s. 10b) implementation component must be examined. [ 75 ] In addition to the fact the applicant was not fully informed of his rights upon his arrests, the evidence shows that the officers had decided to wait to get to the police station before taking any step for him to consult counsel.

Moreover, they did so without any real assessment of the factual situation. [ 76 ] Officer Chamberland explained his decision for two reasons: first, because the applicant was going to be transported there and second, because of some general confidentiality issue; it is better to speak with a lawyer in a room than in the back of a police car in front of a parking lot.

In cross-examination, Officer Chamberland explained that, after the applicant was handcuffed and placed inside the police car, he could have let him use one of the cellphones found, but they decided, for unexplained reasons, that the applicant could exercise his right only at the police station. [ 77 ] Officer Beaulieu explained that the first opportunity to contact a lawyer was at the police station because it was at night, they were close to the police station, there was only a 30-minute delay to get there, and they had to go there as fast as possible because the applicant wanted to go to the bathroom.

He never referred to any confidentiality issue. Officer Chamberland explained that they left the scene at 12:15 a.m. and arrived at the police station at 12:32 a.m., thus a 17-minute delay. Any delay was reasonable from the officers’ perspective since they were already going to the police station. [ 78 ] It is well known that, as a general rule, the police may not assume in advance that it will be impracticable for them to facilitate access to counsel [95] .

On the contrary, they must be mindful of the particular circumstances of the detention and take proactive steps to turn the right to counsel into access to counsel [96] .

As the testimony of both officers tends to show that they never really turned their mind to the possibility that the applicant could have access to counsel at the scene of both arrests and that any given delay to speak to counsel at the police station would be reasonable, the central question still “remains whether the delay was reasonable having regard to all of the circumstances, whether those circumstances were considered by the police or not” [97] .

Those circumstances must be grounded in the facts and be assessed in light of the evidence, not on hypotheses or some immutable rule that it is never reasonably possible in practice [98] . [ 79 ] Considering all the circumstances, none of the reasons given by both officers to postpone the right to counsel at the police station are reasonable, especially when the Court considers the following: (1) two cellphones were seized, (2) the applicant was calm and collaborative,

(3) Officer Chamberland admitted he could have let the applicant use one of the cellphones in the police car, (4) nothing suggests that the confidentiality of any call made was a real concern while they were two officers dealing with the applicant, (5) the police station was nowhere near the scene contrary to what officers stated and (6) it approximately took one hour from the arrests until the first opportunity given to the applicant to speak to counsel, which is a substantial delay. [ 80 ] In light of Officer Chamberland’s testimony, it must be reiterated that lack of confidentiality is not a sufficient reason to refuse any possibility to consult counsel [99] .

Confidentiality belongs to the detainee, who may prefer to have a conversation that is not fully confidential rather than be deprived of the benefit of a lawyer’s legal advice [100] . In other words, a detainee may partially waive one component of the right to counsel concerning the need to contact counsel in a confidential manner, which does not necessarily justify a refusal by the police to allow this right to be exercised [101] .

Therefore, even if there was a real confidentiality issue, this does not, in itself, justify Officer Chamberland’s position. [ 81 ] Here, the fact that officers assumed the delay would be reasonable makes it more difficult for the prosecution to show that it was in fact reasonable [102] . Considering all the above, the Court finds that this delay was not reasonable, and the first reasonable opportunity was at the scene of the arrests. Therefore, the respondent fails to meet its burden, and the officers’ actions constitute a third

s. 10b) breach. e. Third Police Duty: To Hold Off [ 82 ] Implied in the second component is a third duty on the police to hold off [103] , i.e., refrain from eliciting evidence from the detainee until he has had reasonable opportunity to consult counsel.

This duty also prevents the police from interacting with the detainee, short of questioning, in a manner that triggers a response because this would be the functional equivalent of an interrogation [104] . [ 83 ] Again, in addition to the fact the applicant was not fully informed of his rights upon his arrests and therefore did not invoke his right to counsel at that time, the evidence demonstrates that this third duty linked to the implementation component discussed earlier was also infringed; the applicant was questioned and searched by officers before being given an opportunity to contact counsel. [ 84 ] First, during transport, the applicant responded he did not have any phone number and did not know the two cellphone numbers found when questioned about it.

Second, at the police station, the applicant’s clothes were searched again. A $20 bill and some coins were found in an inside pocket of his pants. At 12:54 a.m., two identity cards from Ontario that did not belong to the applicant were also seized. Those were possibly inside the backpack, according to Officer Chamberland’s notes. Third, during the booking procedure, the officers asked the applicant who those documents belonged to, and he answered to a friend. There was a name on those documents and neither officer investigated him because it was late in their shift.

Finally, a work list with handwritten notes was also found. [ 85 ] It is only then, around 1:00 a.m., that officers went to a meeting room and finally gave the applicant the first opportunity to speak to counsel. Therefore, the obligation on the officers to refrain from taking further investigative steps to elicit evidence before access to counsel is provided was breached [105] , which is a fourth s. 10b) breach. f. Invalid waiver [ 86 ] What happened at the police station when officers gave the applicant his first opportunity to exercise his right to counsel is contradictory.

It is nonetheless clear that even at the police station, the applicant was not fully informed of his rights. No caution card was ever read to the applicant and the deficient information given by both officers upon arrests were not corrected. [ 87 ] Officers asked the applicant for the first time if he had a lawyer. According to their testimonies, he first responded that he did not have a lawyer and he did not want to talk to any.

They insisted on making sure that he could exercise his rights and the applicant said that he had a personal lawyer but did not want to tell them who it was because he did not want her to know he was arrested. [ 88 ] Both languages were used at the police station, and Officer Chamberland does not remember when they exchanged in French or in English. The applicant did mention twice “I don’t want to talk to another lawyer” after attempts to reach duty counsel, which is the only verbatim statement noted in the officers’ report from the whole intervention.

In cross-examination, Officer Beaulieu agreed that the applicant said he had a personal lawyer, and, from this noted statement, the applicant meant that he only wanted to speak to her. [ 89 ] According to the applicant’s testimony, he confirmed to the officers he had a lawyer and mentioned her first name, Alexandra, since he did not remember her last name. He then asked to have his cellphone several times to get her contact information to reach her as he was able to do so in the past. Officer Chamberland simply ignored him.

The applicant told them he did not want to talk to another lawyer, and he ultimately never spoke to anyone. [ 90 ] From the conflicting evidence presented, there was either a lack of diligence from the applicant [106] refusing to disclose the name of his lawyer and refusing to speak to any other lawyer or a lack of diligence from the officers [107] ignoring the applicant’s multiple demands to have access to his cellphone to get his lawyer’s information since he did not remember her full name.

Even if it is difficult to reconciliate the fact that the applicant mentioned twice that he did not want to talk to another lawyer while at the same time completely refusing to disclose the name of his lawyer to the officers, the Court do not need to resolve these discrepancies. [ 91 ] The applicant manifested at some point his desire to exercise his right to counsel, which can be inferred from the officer’s attempts to reach duty counsel during approximately 10 minutes, the only verbatim statement noted by the officers, and the applicant’s testimony to this effect.

The applicant changed his mind when he said that he would call his lawyer later. That is when officers concluded that the applicant waived his right to counsel. [ 92 ] It must be remembered that the applicant was under arrest for more than one hour, was still not fully informed of his rights and the officers attempt to reach duty counsel only lasted around 10 minutes. They never explained that the applicant still had the right to consult counsel and that refusing to speak to another lawyer could lead to a waiver of his right and he would therefore not be able to receive any legal advice despite his detention.

The officers had to ensure that the applicant was informed that their unsuccessful attempts to reach counsel did not exhaust his s. 10b) right [108] . In fact, they still had the obligation to fully inform the applicant of his rights especially to support any waiver claim. [ 93 ] In those circumstances, the respondent had the burden of establishing an unequivocal free and voluntary waiver, which is a very high standard to meet [109] . To be valid and effective, a waiver must be premised on a true appreciation of the consequences of giving up the right, which is simply not demonstrated here.

As the applicant was never fully informed of his rights, the evidence is contradictory and reveals he changed his mind at some point when he decided he would call his lawyer later and that no Prosper warning was given [110] , the Court is not satisfied from the evidence there was a valid waiver of the applicant’s s. 10b) constitutional rights. [ 94 ] This fifth s. 10b) breach led to an important outcome: the applicant never had access to legal advice from any counsel while he was detained. V.

ANALYSIS OF S. 24(2) ARGUMENTS: EXCLUSION OF EVIDENCE [ 95 ] In the case of one or more violations, s. 24(2) of the Charter is not a rule of automatic exclusion of the unconstitutionally obtained evidence [111] . Two distinct concepts must be considered in order to determine whether they should be excluded: first, the

threshold requirement , which consists in asking whether the evidence was "obtained in a manner" that infringes a right guaranteed by the Charter [112] and second, if this first condition is met, the evaluative component , which consists in asking whether, given all the circumstances, admitting the evidence is likely to bring the administration of justice into disrepute [113] . If these two conditions are met, the contested evidence must be set aside [114] . The Court concludes that this is the case.

Here is why. [ 96 ] The analysis operates from the point of view of a reasonable person informed of all relevant circumstances and the values underlying the Charter [115] , and focuses on the long-term maintenance of the integrity of, and public confidence in, the justice system [116] . It is not directed at punishing police misconduct or compensating the accused [117] .

The Court must evaluate “thoroughly [118] ” each of the three lines of inquiry set out in Grant in its assessment under s. 24(2), namely: (1) the seriousness of the Charter -infringing state conduct; (2) the impact on the accused’s Charter -protected interests; and (3) society's interest in the adjudication of the case on its merits. The Court must finally balance each of these factors in a qualitative manner since mathematical precision is impossible [119] . a.

The Threshold Requirement [ 97 ] This requirement insists that there be a nexus between the Charter breaches and the evidence, absent which s. 24(2) has no application [120] . Determining whether evidence was "obtained in a manner" that infringed the Charter involves a case-specific factual inquiry into the existence and sufficiency of the connection between the Charter breach and the evidence obtained [121] .

The Supreme Court takes a generous approach to this requirement [122] : a temporal, contextual or causal link, or a combination of the three, is required between the breaches and the evidence obtained [123] . [ 98 ] The Court concluded that there is a continuum of multiple s. 8 and 10b) breaches from the backpack search at 12:09 a.m. until both officers erroneously concluded the applicant waived his right to counsel around 1:12 a.m., so over a period of about one hour.

Examining the “entire chain of events [124] ”, the main incriminating evidence discovered, 259 grams of hard drugs inside the backpack, was immediately after the s. 8 breach which demonstrates a clear causal link. [ 99 ] This evidence was also gathered just before most of the s. 10b) breaches that occurred at the scene of both arrests before heading to the police station.

The last s. 10b) breach at the police station concerning the invalid waiver is not too remote or tenuous from the drugs seized approximately one hour before [125] and the Court concludes that all breaches are part of the same course of conduct [126] . Even if there was no causal connection, there is at least a temporal and contextual link between those s. 10b) breaches and the evidence found [127] .

The discovery of evidence was close in time to those Charter breaches, and it flowed directly out of the same encounter with the police [128] . [ 100 ] These are not strictly "consequential" violations within the meaning of Zacharias , but rather cumulative independent violations, which increase the seriousness of the Charter -infringing state conduct and evidence a pattern of misconduct [129] . Accordingly, the Court concludes that a sufficient link exists to initiate the review required under s. 24(2) of the Charter , for all breaches [130] . b.

The Evaluative Component [ 101 ] The Court must now assess whether it has been established, having regard to all the circumstances, that the admission of the evidence gathered by the police from which the applicant seeks exclusion is likely to bring the administration of justice into disrepute. The onus is generally on the applicant to establish the above [131] . [ 102 ] The respondent argues that if there was any s. 10b) violation, there would be no causal link with the drug seized and therefore it would not require exclusion.

As for any s. 8 breach, it would necessarily be situated at the less serious end of the scale of culpability since the applicant was legally arrested, was going to be detained at the police station and the drugs would have been discovered anyway by the officers. [ 103 ] In any event, the third Grant criterion would strongly pull towards the inclusion of evidence considering the large quantity of the drugs seized and their nature, one being a protonitazene which could be as dangerous and powerful as fentanyl.

This evidence is reliable and critical to the respondent’s case and its admission is necessary, so the applicant must respond to the serious charges against him. i. The Seriousness of the Charter -Infringing State Conduct [ 104 ] In evaluating the gravity of the state conduct at issue, the Court must situate that conduct on a scale of culpability [132] . The graver the state's misconduct is, the stronger the need to preserve the long-term repute of the administration of justice would be, by disassociating the court's processes from that misconduct [133] .

To properly situate state conduct on the scale of culpability, the Court must also evaluate whether the presence of surrounding circumstances attenuates or exacerbates the seriousness of the state conduct [134] . [ 105 ] At one end of the scale is conduct that constitutes a wilful or reckless disregard of Charter rights, a systemic pattern of Charter- infringing conduct, or a major departure from Charter standards [135] .

At the other end of the scale are less serious Charter breaches, including breaches that are inadvertent, technical, or minor or those that reflect an understandable mistake [136] . [ 106 ] Both officers were experienced: Officer Beaulieu had twelve years of experience and Officer Chamberland four and a half years. They essentially admitted what they did without any attempt to embellish the facts. For example, they admitted that the applicant was calm and collaborative and that no caution card was ever used.

However, they exhibited no form of self-criticism about any of their actions, other than Officer Beaulieu who admitted his bad habit based on laziness to explain why he does not use the caution card other than for impaired driving cases. [ 107 ] Their initial intervention was justified as the applicant was outside his house breaching his curfew and they had to arrest him for that offence. While the pat-down search was legal, the backpack search solely based on police safety was not, as discussed earlier.

This after-the-fact justification about police safety on which both officers never referred to in their report or personal notes tends to show a misleading state conduct which favours exclusion of the evidence [137] . As discussed earlier, there was simply no connection to the first

arrest and no reasonable basis related to police safety since the applicant was calm, handcuffed and detained. [ 108 ] Both officers admitted that there was no urgency and there was no explanation as for the four-minute delay between the first arrest and the backpack search. They did not explain why they did not let the applicant leave his bag at home as requested. They did not consider whether they needed a warrant before the search.

Asked whether he thought this search could violate the applicant privacy rights, Officer Chamberland simply reiterated that it was a search incident to the arrest, as if it was a magical incantation.

Finally, even if Officer Chamberland did not find any kind of weapon inside the backpack, he kept searching the black bag he found inside the backpack in the same manner. [ 109 ] As for the argument that the backpack would have been searched anyway once at the police station during the booking procedure, it must be remembered that inventory search per se does not serve a valid objective in pursuit of the ends of criminal justice because its purposes relate to concerns extraneous to the criminal law [138] .

If the police wish to tender the fruits of an inventory search into evidence at a criminal trial, the search must be conducted under some lawful authority [139] . Consequently, warrantless searches for inventory purposes carried out for administrative reasons infringe

section 8 of the Charter [140] . [ 110 ] In addition, none of the officers stated that the search was conducted to discover evidence or subjectively believed he could find evidence related to any given crime. Nothing suggests that a warrant could have been obtained in those circumstances.

Therefore, the Court cannot conclude that the evidence could have been obtained without a Charter violation [141] . [ 111 ] Concerning the s. 10b) breaches, as one right to counsel infringement is generally considered serious [142] , we are dealing here with multiple violations of this constitutional right [143] , the most important one being the informational component for both arrests.

Officer Beaulieu’s testimony on this aspect is deeply disturbing. [ 112 ] Based solely on his own deliberate actions, he never uses the caution card with all the information needed when he arrests someone, other than for an impaired driving offence. He takes the time to read this card for this specific offence for one reason: to avoid being asked tons of questions about it at the trial. Clearly, Officer Beaulieu willfully disregards the extent of his obligations when he arrests someone for a criminal offence.

The situation was not different for the applicant. [ 113 ] Both officers’ flagrant failure to respect the informational component cannot be mitigated in any way. As the Supreme Court held in Bartle , this is not an onerous duty and is something police officers “can do by simply reading the standard caution [144] ”.

Even if this is obvious, it was not done here like many other cases, according to Officer Beaulieu’s testimony. [ 114 ] This conduct, in itself, constitutes a combination of wilful and reckless disregard of Charter rights, systemic pattern of Charter - infringing conduct and major departure from Charter standards.

Moreover, the deficient notetaking, combined with imprecise and poorly documented testimonies of both officers regarding a fundamental constitutional right such as the right to counsel, suggests a lack of consideration for the applicant’s constitutional rights [145] . [ 115 ] In short, this systemic way of proceeding is a major error and an unreasonable misunderstanding of well-settled law for 34 years [146] . As a reminder, the Supreme Court in Brydges granted a 30-day transition period to allow police departments across Canada to prepare new caution cards in accordance with the law [147] .

Police officers need to refer to these caution cards or make sure they do not miss any important information it they decide to do it from memory, which comes with its own inherent risks. [ 116 ] The present situation is even more concerning than in Brydges [148] or Orbanski [149] , because the applicant was not advised that he could exercise his right without delay , despite the clear wording of

section 10(b) [150] . The situation is therefore similar to Bartle , where the police caution had not made it clear to the accused "that he could immediately avail himself of the assistance of counsel and that such assistance was available to everyone " [emphasis added].

In addition, as it was the case in Bartle , the information about duty counsel and particularly the 1-800 number, which is printed on the standard caution card, were readily at hand [151] and both officers carelessly did not use it. [ 117 ] The approximate one-hour delay suspension of the right to counsel without any reasonable and compelling reasons as discussed earlier is similar to the 54-minute delay in Tremblay and 77-minute delay in Freddi where the Court of Appeal clearly stated that those situations cannot be tolerated [152] .

In short, at no point did the officers do anything to facilitate the applicant access to counsel before being at the police station [153] . This situation is intrinsically linked to the informational component breaches. [ 118 ] The significance of the passage of time is heightened in the circumstances of this case, as there were numerous opportunities for the officers to fully advise the applicant of his right to retain and instruct counsel [154] and implement this constitutional right without delay.

Meanwhile, the police duty to hold off was not implemented which exacerbates the Charter -infringing state conduct. Finally, the officer conduct culminated in an invalid waiver leading to a complete absence of legal advice from counsel. [ 119 ] The Court therefore finds a flagrant pattern of Charter breaches that cumulatively increase the seriousness of the Charter - infringing state conduct [155] . These cumulative independent breaches indicate a pattern of misconduct [156] .

In this context of abuse, the Court must keep “ in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge” [157] . [ 120 ] Considered cumulatively [158] , these numerous breaches reach the most serious end of the culpability scale and strongly militate in favour of exclusion. These are serious police misconduct from which the Court must dissociate itself. ii.

The Impact on the Applicant’s Charter -Protected Interests [ 121 ] As for the second Grant factor, the Court must evaluate, from the accused’s perspective [159] , the extent to which the breaches undermined the interests protected by the rights infringed [160] . Like the first inquiry, this inquiry is into the degree of seriousness [161] . Here, given the numerous breaches, the impact on the applicant's rights is necessarily greater [162] . The Court must examine all the breaches to get an accurate picture of the effects of those breaches [163] .

[ 122 ] Where a s. 8 violation has occurred, the inquiry focuses on the protected interests of privacy, and more broadly, human dignity [164] . The backpack searched clearly belonged to the applicant, and he did not want to let it go. It was taken from him without consent.

Even if the applicant had a reduced expectation of privacy because the search occurred on a public road at night [165] and he was seen there illegally in breach of his curfew which led to his arrest and his backpack being seized [166] , he still had a privacy interest in it. [ 123 ] As “[i]ndividuals have a reasonable expectation of privacy in their pockets [167] ” when they walk along the sidewalk, they also have a similar expectation of privacy in a backpack in their physical possession.

The applicant was exiting a taxi near his house and held the backpack with both his hands when Officer Chamberland insisted on removing the backpack under his protest .

Given the specific location of the backpack and the applicant’s spontaneous reaction, this situation involves a greater intrusion on the applicant’s privacy interests than a situation where, for example, the backpack, would be discovered inside a vehicle occupied by him [168] . [ 124 ] Inside the backpack, other than the drugs found in the black bag, Officer Chamberland discovered valuable personal effects, such as an iPad, an Apple laptop, and chargers for both devices .

Even if nothing suggests those devices were searched by the officers, it nevertheless demonstrates the private nature of the backpack content. [ 125 ] As a result of the backpack search, the applicant was arrested and then brought to the police station to be detained which significantly restricted his liberty and movement. However, he was first legally arrested, handcuffed and detained for the breach of curfew and officers explained that their intent was to bring him to the police station from that point.

Therefore, the applicant was already not free to go before the backpack search and this mitigate the impact of the backpack search to some extent [169] . [ 126 ] Concerning the cumulative s. 10b) breaches before the applicant being at the police station, his legal vulnerability was significant, especially when he was arrested for the second time after the drugs discovery and, correspondingly, so was his need for assistance from counsel [170] . S. 10b) of the Charter is “the single most important organizing principle in criminal law [171] ”.

Any breach of this provision "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 [172] ". [ 127 ] Even in the absence of a causal link between the s. 10b) breaches and the evidence, a sufficient temporal and contextual link exists as stated earlier.

While the impact of those breaches was certainly not as serious as it would have been had there been a causal connection between the breaches and the obtaining of the evidence, their cumulative effect was nonetheless significant on the applicant’s rights [173] . [ 128 ] He was left in a state of ignorance by both officers and was unnecessarily deprived of any contact with any lawyer while he was detained that night [174] . The right to counsel is a lifeline for detainees from which they can obtain, not only legal advice and guidance, but also the sense that they are not entirely at the mercy of the police [175] .

This psychological value of access to counsel without delay should not be underestimated [176] . [ 129 ] Taken together, s. 10b) breaches combined with s. 8 breach necessarily result in a more significant impact on the Charter - protected interests of the applicant [177] . Considering all the above, the second Grant factor strongly favours exclusion. iii.

Society's Interest in the Adjudication of the Case on its Merits [ 130 ] At this third stage of the analysis, the Court must consider society's interest in having the case tried on its merits, i.e., whether the truth-seeking function of the criminal trial would be better served by allowing the use than by excluding it [178] .

The factors to be considered are (1) the reliability of the evidence, (2) its importance to the prosecution and (3) the seriousness of the offence, although this last factor can work both ways [179] . [ 131 ] The evidence in this case, the hard drugs, including protonitazene which could be as dangerous and powerful as fentanyl, is real, reliable, and crucial to the respondent case. T he dangers posed by trafficking in hard drugs such as heroin and cocaine have long been recognized and cannot be underestimated [180] . Those dangers are even greater for fentanyl and its analogues [181] .

Those principles remain applicable even if the applicant is facing two counts of possession for the purposes of trafficking. [ 132 ] Given the quantity and the nature of the drugs found, even if there is still some debate as to the exact nature of the drugs seized opposed to the drugs analyzed, the offences remain nevertheless very serious [182] , while the applicant was on parole for a similar offence. [ 133 ] While the charges against the applicant are very serious and the evidence seized is highly reliable, the Court must be careful to dissociate itself and the trial process from the violation of longstanding constitutional norms reflected in the Supreme Court’s Charter jurisprudence [183] . [ 134 ] This third Grant factor nevertheless pull towards inclusion of evidence. iv.

Balancing [ 135 ] The Court must now determine whether, considering all the factors, admitting the evidence is likely to bring the administration of justice into disrepute [184] . While the first two lines of inquiry typically work in tandem in the sense that both pull towards exclusion of the evidence, they need not pull with identical degrees of force to compel exclusion [185] .

It is the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion [186] . [ 136 ] When analyzing these two factors, it should be borne in mind that they never favour admission of evidence, and can, at most, weakly favour exclusion [187] . When the third factor strongly favours the use of evidence, the combined effect of the first two factors may be insufficient if they weakly or moderately favour exclusion [188] . [ 137 ] After weighing all the above factors, the Court concludes that the evidence must be excluded. The first two criteria act in

tandem here, both pulling the balance strongly in favour of exclusion [189] . The sum of the serious multiple Charter breaches and their significant intrusive impacts on the applicant’s rights lead the Court to conclude that exclusion of the evidence is necessary to avoid bringing the administration of justice into disrepute. As the Supreme Court has long recognized, as a general principle, the end does not justify the means [190] . [ 138 ] The Court must dissociate itself from the general conduct of both officers despite the very serious charges against the applicant.

Given the need to underline for the police the importance of complying with their duties in relation to bag searches like this one which was not incident to arrest and to the applicant’s right to counsel infringed multiple times [191] , it would better serve the repute of the administration of justice on the long term to exclude the evidence in this case. [ 139 ] This is a case where the first and second Grant factors, taken together, militate strongly in favour of exclusion and, as a result, the third factor cannot tip the balance in favour of admission.

In conclusion, the Court is convinced, pursuant to s. 24(2) of the Charter , that it must order the exclusion of all evidence gathered from the backpack search. FOR THESE REASONS, THE COURT : [ 140 ] GRANTS the motion to exclude evidence; [ 141 ] DECLARES that the applicant’s Charter rights protected under s. 8 and s. 10b) have been infringed; [ 142 ] EXCLUDES all the evidence gathered from the backpack search. __________________________________ JEAN-PHILIPPE MARCOUX, J.Q.C.

Me Jacqueline Sanderson Attorney for the Applicant-Accused Me Kiran Ross Attorney for the Respondent-Prosecution Dates of hearing: September 29 th , 2023, December 7 th and 8 th , 2023