R. v. Mason, 2022 BCPC 285

Citation: R. v. Mason 2022 BCPC 285 Date: 20221219 File No: 65478-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REX v. ANDREW JOSEPH MASON RULING ON VOIR DIRE OF THE HONOURABLE JUDGE B. CRAIG Counsel for the Crown: Julia M. Hung Counsel for the Defendant: William Jessop Place of Hearing: Richmond , B.C. Dates of Hearing: October 19, 20 and November 24, 2022 Date of Judgment: December 19, 2022

Introduction [1] Mr. Mason is charged on four counts that he possessed heroin, fentanyl, methamphetamine, and cocaine, respectively, for thepurpose of trafficking, on April 17, 2020. [2] The police stopped Mr. Mason’s vehicle that evening for an alleged traffic infraction. When Mr. Mason refused to get out of thevehicle so that the officers could conduct a pat-down safety search, he was arrested for obstruction of justice, forcefully removed fromhis vehicle and searched. Officers made observations that lead them to believe that Mr. Mason was trafficking in drugs. Mr.

Mason wasarrested for possession of drugs for the purpose of trafficking. His vehicle was searched and he was strip-searched at the police station,where officers located various drugs that make out the counts on the Information. [3] Mr. Mason argues that the officers had no basis to stop his vehicle. He says the officers used the purported traffic infraction as aruse for what was really a drug trafficking investigation.

He argues that he was arbitrarily detained, contrary to s. 9 of the CanadianCharter of Rights and Freedoms (“the Charter”), and that the searches of his person and vehicle were unlawful, contrary to s. 8 of theCharter. Finally, he argues that the officers breached his right to counsel under s. 10(

b) of the Charter when they delayed advising himof that right and delayed giving him an opportunity to exercise that right. [4] The Crown concedes that the officers breached Mr. Mason’s s. 10(

b) rights when they delayed giving him an opportunity tocontact legal counsel. The Crown disputes the other alleged breaches of the Charter. The Crown argues that the officers had propergrounds to stop Mr. Mason’s vehicle for a traffic infraction, and were justified in searching the vehicle and Mr. Mason after makingobservations that Mr. Mason may be hiding weapons or drugs on his person or in the vehicle. Finally, the Crown says the initial delaybefore the officers advised Mr.

Mason of his right to counsel was justified, given the dynamic way the events unfolded from the time ofthe stop of the vehicle. [5] I heard evidence from four police officers on the voir dire. The main evidence came from Constables Hor and Galbraith, whoconducted the traffic stop on Mr. Mason’s vehicle. The other two officers, Cst. Farfard and Cst. Anwar attended after the Mr. Mason wasdetained and searched. Issues [6] I must decide the following issues:

i) Was Mr. Mason arbitrarily detained when the officers stopped his vehicle pursuant to a purported traffic violation? ii) Was the search of Mr. Mason’s person and vehicle lawful? And iii) What was the extent of the officer’s breach of Mr. Mason’s right to legal counsel? Was Mr. Mason arbitrarily detained? [7] There is no issue that Mr. Mason was detained by the police when they stopped his vehicle. The issue is whether that detentionwas arbitrary, and contrary to s. 9 of the Charter. If I find that the officers stopped Mr.

Mason based upon an observed violation of theMotor Vehicle Act (“the Act”), then the resulting detention is authorized by the Act and is not arbitrary: R. v. Kaddoura, 2009 BCCA 113at para. 12-13. Nor is the detention arbitrary if I find that the officers stopped Mr. Mason for a dual purpose, that is, an observed trafficoffence and based upon suspicion of a criminal offence: R. v. Madill, 2005 BCSC 1564.

If, however, I find that the officers had nogenuine traffic or vehicle safety concern, and used their powers under the Act as a ruse to conduct a criminal investigation, then thedetention would be arbitrary and contrary to s. 9 of the Charter: R. v. Woody, 2018 BCSC 2275, relying upon R. v. Nolet, 2010 SCC 26at para. 36 and Brown v. Durham Regional Police Force (1998), (ON CA), 43 O.R. (3d) 223 (ONCA) at p. 238. [8] To determine this issue I must examine the authority claimed by the officers to justify their actions at each step of theinvestigation to determine whether, at any point, the officers infringed Mr.

Mason’s rights under s. 8 or s. 9 of the Charter: Nolet atpara. 23. [9] The Crown, quite rightly, points out that the Crown is not required to prove that the accused committed the traffic offence tojustify the detention. The Crown only needs to prove that the officers had reasonable grounds to believe the accused committed a trafficoffence: R. v. Clarke, (ONCA). [10] The Crown submits that the officers’ suspicion that Mr. Mason may also have been drug trafficking is irrelevant, so long as theofficers had a reasonable belief that he committed a traffic offence, relying upon Kaddoura.

In Kaddoura, a police officer was asked byother officers to pull over the accused’s vehicle to identify the occupants as part of a drug investigation. When the officer located thevehicle, he noted that it had a broken taillight. The trial judge found that the officer arbitrarily detained the accused because his purposein pulling over the vehicle was to identify the occupants pursuant to a drug investigation. [11] The Court of Appeal found the trial judge erred in finding an arbitrary detention.

The Court held that the detention of the accusedwas not arbitrary and the officer was fully entitled to stop the vehicle based on his observations of the broken taillight, an offence underthe Motor Vehicle Act. The fact that the officer had an additional reason for the stop – to identify the driver – did not transform thelawful stop into an unlawful one (para. 12). [12] To determine whether the officers had proper grounds to stop Mr. Mason’s vehicle, I must determine whether the officers“actually formed a ‘legitimate intention’ to make the detention…for road safety purposes”: R. v.

Mayor, 2019 ONCA 578 at para. 7. TheCourt of Appeal in Mayor gave the following direction:

10. Consequently, the court must make a factual determination as to whether the officer had a road safety purpose in mind or whether the officer was using the Highway Traffic Act power as a ruse to conduct a criminal investigation. In determining the police purpose, the court must consider all the circumstances, including the evidence of the officers, the evidence of the detained person, the circumstances of the stop, and the police conduct during the stop: Brown , at p. 238; Gonzales , at para. 67. [ 13 ] I will first consider the officers’ explanation of the purpose for the stop.

I will then consider the circumstances of the stop and the police conduct during the stop. Finally, as part of the relevant surrounding circumstances, I will address the circumstances from a week before this incident, when Mr. Mason was arrested for drug trafficking by Cst. Galbraith after a vehicle stop, but released without charges when the police found no drugs in his possession. Officers’ Explanation of the Purpose for the Stop Cst. Hor [ 14 ] Cst Hor testified that he was driving an unmarked police vehicle approaching a traffic light with Cst. Galbraith in the passenger seat. He said he first noticed Mr.

Mason’s vehicle after Cst. Galbraith told him that there was a car approaching them from behind with no headlights on. He said he and Cst. Galbraith decided to stop the vehicle to check on the well-being of the occupant or occupants and to educate the driver on the need for headlights at that time of night. [ 15 ] Cst. Hor testified that, as the driver approached the intersection, Cst. Galbraith looked over and recognized the driver from a police interaction the week before. He said Cst. Galbraith told him that a knife was found in the vehicle in the previous interaction. He said Cst.

Galbraith ran the licence plate on the police computer and learned that the vehicle was a rental vehicle. While stopped at the light, Cst. Hor said that he and Cst. Galbraith saw the driver leaning toward the passenger side of the vehicle in an unusual way. [ 16 ] Cst. Hor testified that, when the light changed, he waited for the vehicle to proceed. The vehicle delayed about three seconds and then proceeded. He moved the police vehicle behind the vehicle and activated his police lights. He said the vehicle did not pull over immediately, but drove a block further, then pulled into a side street and pulled over.

After the lights were activated, Cst. Hor said he noticed the driver moving around in his vehicle and leaning toward the centre console. [ 17 ] Cst. Hor testified that the driver’s actions made him suspicious that he may be trying to conceal something illegal, like knives or guns, on his person or in his vehicle. Cst. Hor said he parked the police vehicle, then approached the driver’s window. Mr. Mason was the driver and sole occupant. The driver’s window was rolled down only about one-third of the way, which added to Cst. Hor’s suspicions. Cst. Hor said he told Mr.

Mason that he stopped him because he had no headlights on. He said he asked Mr. Mason to exit the vehicle so he could do a pat-down search of him for officer safety. [ 18 ] In cross-examination, Cst. Hor testified that the initial purpose of the traffic stop was because Mr. Mason did not have his headlights on, however, after seeing Mr. Mason’s unusual behaviour, it became more of a dual purpose stop, so that it also became a potential drug trafficking investigation. Cst. Galbraith [ 19 ] Cst. Galbraith testified that he first noticed Mr.

Mason’s vehicle when it was driving approximately twenty meters behind the police car. He said the lack of headlights was what brought the vehicle to his attention. [ 20 ] Cst. Galbraith said he queried the licence plate on his computer. He said the vehicle then pulled up beside the police vehicle and he looked over and recognized Mr. Mason from a police incident the week before. Cst. Galbraith said he told Cst. Hor the circumstances of Mr. Mason’s arrest the week before, and told him that they should stop the vehicle because it did not have its headlights on, and detain Mr. Mason for a safety search. [ 21 ] Cst.

Galbraith testified that there was a dual purpose to the traffic stop. He said it was due to the motor vehicle offence and because he had a suspicion Mr. Mason may be drug trafficking again. He said this suspicion increased when Mr. Mason did not pull over immediately after the officers activated their lights, and when he saw Mr. Mason fidgeting in the vehicle and leaning toward the centre console. He said he believed Mr. Mason may have been concealing a weapon or drugs. He said Mr. Mason had a knife in his possession the week before and people in the drug trade typically carry weapons.

Analysis of the Officers’ Testimony on the Purpose of the Stop [ 22 ] I found the testimony from Cst. Hor and Cst. Galbraith about the purpose for the stop unreliable for three main reasons:

i) Both officers’ purported observations of the headlights were inconsistent on a significant point with Cst. Galbraith’s statement in the Report to Crown Counsel; ii) Neither officers’ observations were supported by objectively verifiable circumstances of the stop, or contemporaneous notes; and iii) The circumstances of the unsuccessful arrest of Mr. Mason the week before for drug trafficking suggest that the true purpose of the stop was to further a drug trafficking investigation. i. Inconsistency Between Testimony and Statement [ 23 ] Both officers gave detailed and specific testimony that they observed Mr.

Mason’s vehicle without headlights when it was behind their vehicle. Cst. Hor testified in cross-examination to a specific recollection of looking in his rear-view mirror and seeing that Mr. Mason’s vehicle had no headlights on. He confirmed that the vehicle pulled up beside their vehicle. He denied the suggestion that Mr. Mason’s vehicle was at the traffic light first as the police vehicle approached the light.

[ 24 ] Like Cst. Hor, Cst. Galbraith said he first noticed Mr. Mason’s vehicle when it was driving behind them. In cross-examination Cst. Galbraith confirmed that the police vehicle was in front of Mr. Mason’s vehicle and stopped at the light as Mr. Mason’s vehicle approached from behind. [ 25 ] Cst. Galbraith corrected this in cross-examination when his typed statement from the Report to Crown Counsel was put to him. This statement notes that the police vehicle had come from behind and pulled up beside Mr. Mason’s vehicle.

He agreed that this statement, prepared much closer to the events, was more accurate than his previous testimony. He agreed that he saw the licence plate as the officers pulled up from behind the vehicle, and then ran the plate. He agreed that he then looked over and recognized Mr. Mason. [ 26 ] I find that Cst. Galbraith’s typed statement contained the more reliable evidence about the position of Mr. Mason’s vehicle when it was first observed by the officers. I consider the inconsistency between the officers’ testimony and this statement significant. Both officers testimony that Mr.

Mason’s vehicle did not have its headlights on was based upon their observations of the vehicle behind them, and as it pulled up beside them at the light. The fact that Mr. Mason’s vehicle was at the light first, and the officers pulled up beside it calls into question not just the sequence of events, but also whether the officers could even see whether Mr. Mason’s vehicle headlights were on or off. [ 27 ] The inconsistency between Cst.

Galbraith’s typed statement and both of the officers’ testimony raises the addition question of why the officers gave the same evidence on this point, which was clearly not correct. An obvious inference is that the officers colluded on the grounds for the stop to justify an otherwise unlawful detention of Mr. Mason. I do not raise this inference lightly. But, when I consider this evidence, with the other circumstances of the stop, as I will outline below, I find that it is an inescapable conclusion. ii. Circumstances of the Stop [ 28 ] Cst. Hor and Cst.

Galbraith both testified that their initial purpose for stopping Mr. Mason’s vehicle was because he was committing an offence under the Motor Vehicle Act Regulations ( Regulations ).

Section 4.01 of the Regulations states: 4.01 A person who drives or operates a vehicle on a highway must illuminate the lamps required by this Division (

a) from 1/2 hour after sunset to 1/2 hour before sunrise, and (

b) at any other time when, due to insufficient light or unfavourable atmospheric conditions, objects on the highway are not clearly discernible at a distance of 150 m. [ 29 ] In his direct evidence, Cst. Hor testified that, when he first noticed Mr. Mason’s vehicle it was getting dark out. He said the Act requires drivers to turn their headlights on when it is getting dark out. [ 30 ] In cross-examination, Cst. Hor agreed that he did not have any notes of his reason for stopping Mr. Mason’s vehicle, or notes of any of the police interactions with Mr. Mason until a brief note he made of the search of the vehicle.

Cst. Hor did note the purported traffic infraction in the Report to Crown Counsel, but he could not recall when this report was prepared, other than at some point between the arrest on April 17, 2020 and January of 2021. Cst. Hor said his testimony was somewhat based upon refreshing his memory from the Report to Crown Counsel, and somewhat based upon his independent recollection. He said the incident was “still pretty fresh in my mind because it was somewhat unique”. Cst. Hor did not elaborate on what was unique about the incident. [ 31 ] Cst.

Galbraith also wrote nothing in his notebook about the purpose of the vehicle stop. [ 32 ] I appreciate that the traffic stop of a motor vehicle is a dynamic situation in which circumstances can develop quickly and officers may not have the luxury of making detailed notes of all the events as they unfold. But, it would not have taken Cst. Hor any time to note the basis for the vehicle stop when he made notes of the search of the vehicle. [ 33 ] Both officers were well-aware of the importance of making detailed and accurate notes as soon as reasonably possible after an investigation.

The failure to note the basis for the vehicle stop at the time of the stop raises concerns about the reliability of the officers’ testimony on this point, particularly in a case like this, where there are other reasons to question the reliability of the officers’ evidence. [ 34 ] Cst. Galbraith’s testimony about the requirement for headlights at the time of the stop was inconsistent. In his direct evidence he said it was dark at the time, the street lights were on and other vehicles had their headlights on. In cross-examination, Cst.

Galbraith agreed that it was dusk, as opposed to completely dark out. [ 35 ] Cst. Galbraith said that Mr. Mason was violating s. 4.01 of the Regulations because it was at least 30 minutes after sunset and the light was not sufficient enough that objects were discernible from 150 meters away. He said he did not know the time of sunset that night, but he was of the view that headlights were required. Cst. Galbraith was shown a chart that recorded the time of sunset on April 17, 2020 as 8:08 pm. He acknowledged that Mr.

Mason’s vehicle was pulled over at 8:10 pm, two minutes after the time of sunset that night, and not half of an hour after sunset as required in the Regulations . [ 36 ] As for s. 4.01(b), whether the light was not sufficient to clearly discern objects on the highway at a distance of 150 meters, Cst. Galbraith agreed that it was a clear night and there were no atmospheric conditions that would require the use of headlights.

Neither officer made any contemporaneous notes on the lighting or visibility conditions at the time, or their ability to discern objects at a distance. [ 37 ] Of further concern, the officers testimony that Mr. Mason did not have his headlights on was contradicted by the photographic evidence. Photographs taken at the scene after Mr. Mason’s arrest show Mr. Mason’s vehicle had its headlights on. Neither officer could explain this discrepancy. Cst. Hor speculated that the headlights may have been turned on after the police interaction, but he did not turn them on, nor did he see any fellow officers turn them on.

None of the four officers that were on scene testified that they turned Mr. Mason’s headlights on.

iii. Arrest of Mr. Mason the Previous Week [ 38 ] The final circumstance that caused me to question the credibility and reliability of Cst. Hor and Cst. Galbraith was the unsuccessful arrest of Mr. Mason the week before by Cst. Galbraith. On April 10, 2020, Cst. Galbraith pulled over Mr. Mason’s vehicle to check his driver’s licence. At the time, Mr. Mason was a stranger to Cst. Galbraith. Cst. Galbraith testified that he noted a number of indicators that Mr. Mason was trafficking in drugs that night.

He was driving a rental vehicle, he had a large amount of loose change, multiple cell phones, cables and electronics in the vehicle, as well as a knife and a used crack pipe with drug residue. He had loose cash on his person and a police dog indicated the presence of drugs in the driver and passenger side door. On the basis of these indicators, Cst. Galbraith arrested Mr. Mason for drug trafficking. Mr. Mason was taken to the police station and strip-searched. Officers found no drugs and had to release him without charges. [ 39 ] Despite finding no drugs on Mr.

Mason, other than the trace drugs detected by the sniffer dog, Cst. Galbraith was still very much of the belief that Mr. Mason was drug trafficking on April 10, 2020. In his direct evidence he said that when he saw Mr. Mason on April 17, he was suspicious that he was trafficking again . In cross-examination he said he believed Mr. Mason was drug trafficking on April 10, but had hidden the drugs from detection in the strip search by pushing the drugs inside his rectum. [ 40 ] Cst. Galbraith was evasive when he was questioned about whether the prior arrest influenced his approach to Mr. Mason on April 17.

He said he approached him with fresh eyes, as opposed to as a suspected drug trafficker. I did not believe this testimony. It was contrary to his direct evidence, and his comments to Cst. Hor when he first recognized Mr. Mason. It was also contrary to his comments in the Report to Crown Counsel where he noted that he believed it was possible Mr. Mason was drug dealing again. When challenged with these comments, Cst. Galbraith said the possibility that Mr. Mason was drug dealing was different from him suspecting him of drug dealing.

This made no sense. [ 41 ] The conduct of the officers on April 17 suggests that the circumstances of the failed arrest of Mr. Mason the week before was at the forefront of their minds when they saw Mr. Mason driving a rental vehicle again on April 17. They formed a plan to stop Mr. Mason, purportedly for driving without his headlights, and do a pat-down search immediately. When Cst. Hor went to the door of Mr. Mason’s vehicle, he did not ask him for his driver’s licence before telling Mr. Mason to get out of the vehicle for a safety search. [ 42 ] Cst.

Hor said he felt he had to do a pat-down search for officer safety because he did not know if Mr. Mason had a knife or a gun in his vehicle. He said he wanted Mr. Mason out of his vehicle to ensure he was out in the open and to pat him down for weapons. He said he knew Mr. Mason had been found with a knife the week before. He said he had become increasingly suspicious that Mr.

Mason may be hiding weapons or drugs, first when he was leaning unusually toward the centre console at the light, then when he delayed for a few seconds before proceeding after the light turned green, then he was moving around in the vehicle after the police lights were activated, then when he did not stop immediately after the lights were activated, and finally when he did not roll his window down fully. He said most vehicles pull over right away after police lights are activated, and most people roll down their window fully. Cst. Hor said he suspected Mr.

Mason did not stop immediately because he may have been trying to buy some time to conceal drugs or weapons. [ 43 ] In cross-examination, Cst. Hor agreed that he knew at the time of stopping Mr. Mason that, in the incident the week before, no drugs had been found on Mr. Mason and no charges had been laid. He also knew that the knife located by the police was a folding knife, found in the centre console of the vehicle. He was also aware that Mr. Mason had no criminal record. He said pat-down searches are warranted with people suspected of drug trafficking, and he knew that Mr.

Mason was a suspected drug trafficker. [ 44 ] Cst. Hor testified that, when he asked Mr. Mason to step out of the vehicle to conduct an officer safety pat-down search, Mr. Mason said “No thank you”. He twice repeated his request to Mr. Mason, who again refused. Cst. Hor said Cst. Galbraith then approached the driver’s door and asked Mr. Mason to exit the vehicle to conduct an officer safety pat-down search. When Mr. Mason again refused, Cst. Galbraith told him he was under arrest for obstruction and the officers physically extracted Mr. Mason from the vehicle. [ 45 ] Cst.

Galbraith testified that, after removing Mr. Mason from his vehicle, he observed a small rock of pre-packaged fentanyl on the driver’s seat. He said they placed Mr. Mason in handcuffs and escorted him back to the police vehicle and searched him incidental to his arrest. He said, when the officers found cash bundled in Mr. Mason’s front pants pockets and hoody pocket, he had reasonable grounds to believe that he was drug trafficking. He arrested Mr. Mason for drug trafficking. He said Mr. Mason became angry and started yelling, so he and Cst. Hor put him in the back of the police vehicle. He said Mr.

Mason then yelled that they had dislocated his knee. He said they told Mr. Mason they would get an ambulance for him. [ 46 ] It was clear to me from the officers’ conduct and testimony that they intended to search Mr. Mason from the moment they decided to stop his vehicle. I find that, although the officers may have suspected that he was carrying a weapon, this was incidental to their true purpose, to search Mr. Mason for evidence of drug trafficking.

I do not accept the officers testimony that there was a dual purpose for the stop – for a traffic infraction and suspected drug trafficking - because there is no reliable evidence of a reasonable belief that Mr. Mason was committing a traffic infraction. Taking into account all of the aforementioned circumstances, I find that there was only one purpose for the traffic stop. That purpose was to attempt to gather evidence that Mr. Mason was trafficking in drugs. I find that the officers did not have proper grounds to stop Mr.

Mason’s vehicle on the belief that he was trafficking in drugs, and used the purported traffic offence as a ruse or pretext to attempt to justify the stop. The detention of Mr. Mason was arbitrary and contrary to s. 9 of the Charter . Did the Officers Breach Mr. Mason’s

Section 8 Charter Rights? [ 47 ] There was no issue between counsel that, if I found that Mr. Mason was arbitrarily detained, the subsequent searches were unreasonable and not authorized by law, contrary to s. 8 of the Charter . Cst. Hor and Cst. Galbraith exceeded their authority when they told Mr. Mason to get out of the vehicle so that they could conduct a safety search. Mr. Mason had a right to refuse to exit the vehicle. When the officers forcefully removed Mr. Mason from the vehicle and searched him, they were not acting in the lawful execution of their duty: see R. v.

Reddy , 2010 BCCA 11 at para. 78 . [ 48 ] As a result, I find that the searches of Mr. Mason at the scene, and later at the police detachment, and the search of his vehicle

were unlawful and contrary to s. 8 of the Charter . Did the Officers Comply with

Section 10(

b) of the Charter ? [ 49 ] Under s. 10(

b) of the Charter , police officers are obliged to advise a person of his or her right to retain and instruct counsel without delay once that person has been detained for a criminal offence: R. v. Suberu , 2009 SCC 33 . In Suberu , the Court held that “without delay” means “immediately”, subject to concerns for officer and public safety (at para. 42). [ 50 ] The defence argues that the officers failed to advise Mr. Mason of his right to counsel without delay, when he was arrested for obstruction of justice and then again for possession for the purpose of trafficking a short time later.

The Crown argues that the initial delay in advising Mr. Mason of his right to counsel was justified, given the dynamic way that the events unfolded from the time of the traffic stop. [ 51 ] Mr. Mason was stopped by the police at 8:10 p.m. He was taken out of his vehicle, searched, handcuffed and placed in the back of the police vehicle by 8:15 p.m., when Cst. Galbraith told Mr. Mason he was under arrest for possession for the purpose of trafficking. The officers then called for Emergency Health Services to attend to address Mr. Mason’s complaints of a dislocated knee. Cst.

Galbraith testified that he did not read Mr. Mason his Charter rights until 8:30 p.m. [ 52 ] I agree with the Crown that the delay from the time of the vehicle stop to the time that Mr. Mason was placed in the back of the vehicle was not unreasonable. However, once Mr. Mason was secured in the back of the police vehicle by 8:15 p.m., there was no explanation for any further delay in advising Mr. Mason of his right to counsel. It would only take a moment for the officers to call for paramedics. By that point, at least four police officers were on scene, and only two officers were searching the vehicle. Cst.

Galbraith did not have any reasonable explanation for failing to advise Mr. Mason of his right to counsel at 8:15 p.m., when he told him he was under arrest. [ 53 ] I find the delay between 8:15 and 8:30 p.m. unreasonable. This delay was exacerbated by the further significant delay between advising Mr. Mason of his right to counsel and giving him an opportunity to exercise that right. [ 54 ] Cst. Galbraith testified that Mr. Mason initially said he did not want to call a lawyer, but then said he did want to call his lawyer and identified him. Cst. Galbraith said he told Mr.

Mason they would facilitate a call with his lawyer. Cst. Galbraith said Emergency Health Services attended and examined Mr. Mason. He said he did not facilitate the call with the lawyer at the scene because he felt it was more important that Mr. Mason first be seen by paramedics, and because Mr. Mason was angry at the time, and would not have privacy at the scene. [ 55 ] Cst. Galbraith said he told Cst. Anwar that Mr. Mason wanted to talk to his lawyer and to facilitate the call. Cst. Anwar had no recollection of being told this. He said he would have given Mr.

Mason the opportunity to talk to his lawyer immediately, at the scene, if he had known Mr. Mason wanted to talk to his lawyer. He said he could have given Mr. Mason privacy by allowing him to call his lawyer from the back of the police vehicle. He said that was done quite frequently, and could have been done at the time. Mr. Mason was not given an opportunity to consult counsel until 9:30 p.m., when he was at the police detachment. [ 56 ] The Crown, quite rightly, concedes that the officers breached Mr. Mason’s s. 10(

b) right when they delayed providing Mr. Mason with an opportunity to consult counsel. Conclusion [ 57 ] For the foregoing reasons, I find that the officers breached Mr. Mason’s rights under

section 8 , 9 and 10 of the Charter when they arrested Mr. Mason on April 17, 2020. ____________________ The Honourable B. Craig Provincial Court Judge