R v Saunders, 2023 MBPC 54

CITATION: R v Saunders , 2023 MBPC 54 THE PROVINCIAL COURT OF MANITOBA WINNIPEG BETWEEN His Majesty the King ) ) A. Parashin for the Crown - and - ) ) Joshua Ari Matteo Saunders ) ) H. Allardyce for the Accused Accused ) ) Reasons for Decision ) Delivered: November 9, 2023 C.A. DEVINE, P.J. DECISION ON VOIR DIRE #1 INTRODUCTION [ 1 ] On March 24, 2022, Mr.

Saunders was arrested for possession of fentanyl (27 grams) and oxycodone (16 pills) for the purpose of trafficking, possession of property obtained by crime (over $33,000) as a result of trafficking, breaches of a release order and possession of a weapon. [ 2 ] He was arrested by police outside his residence in a vehicle police believed he used to traffic drugs, and at the same time his residence was searched pursuant to a warrant. [ 3 ] Only the circumstances that occurred at the time of his arrest and detention in police custody are relevant at this juncture of the proceedings.

A further voir dire to determine the legality of the warrant and search of his residence will be held in future. [ 4 ] Mr. Saunders brought an application alleging that his

section 8 Charter rights were violated when he was strip searched. He also alleges that his

section 10(

b) Charter rights to retain and instruct counsel without delay and right to counsel of choice were violated. [ 5 ] I have allowed the defence application, finding breaches of both

section 8 and

section 10(b). The issue of remedy will be dealt with after the other voir dire . THE EVIDENCE GENERALLY [ 6 ] One police officer testified at the voir dire , the officer involved in Mr. Saunders’s arrest, strip search and interview. Constable Colin Walker is a 26-year veteran of the Winnipeg Police Service (WPS). He has been with the Guns and Gangs Unit for the past three years, investigating primarily drug and firearms offences. He has been involved in over 50 street-level drug trafficking investigations. The background leading to the arrest of Mr.

Saunders is that earlier in 2022, WPS had investigated a fentanyl trafficking phone line and one person was arrested. One of the cell phones involved in the trafficking line became active again, leading police to target Mr. Saunders. Police had him under surveillance on four occasions which showed him driving a black Kia rental vehicle conducting what were believed to be drug transactions. Take-down day was set for March 24, 2022. Just before 6:00 p.m., Mr. Saunders got into the black Kia at his residence and was arrested.

At the same time, other officers executed the search warrant of his residence. [ 7 ] Upon cross-examination, more information about the four instances of surveillance and suspected drug transactions emerged. On March 15, Mr. Saunders was seen in a different vehicle, a red Hyundai Venue. On March 17 and March 23, there were no hand-to- hand transactions observed. On March 24, there were no notes on any observations. Up to that point, there were no substances seized. [ 8 ] Mr. Saunders was arrested at 6:03 p.m. [ 9 ] There was additional communication between Constable Walker and Mr.

Saunders with respect to his right to counsel, which I detail in the

section about right to counsel, below. [ 10 ] At 6:27 p.m. they left the scene and drove to WPS Headquarters (HQ) with Mr. Saunders. [ 11 ] The officers did not observe Mr. Saunders fidgeting or playing with his clothing at any time. He had been handcuffed before being placed in the police vehicle.

[ 12 ] They arrived at HQ at 6:43 p.m. [ 13 ] Mr. Saunders was taken into the sally port. A Prisoner Log Sheet was completed by Constable Walker and his partner that day, Patrol Sergeant Ring, to assess his circumstances and itemize his personal property. There was no cash nor illegal substances, only a wallet and a bank card. [ 14 ] He was given a pat-down search and unclothed to one layer of clothing: t-shirt, pants and socks. There were no concerns emerging from the pat-down search, nor was anything found during the search. [ 15 ] Mr.

Saunders was taken to the Central Processing Unit (CPU) where he was viewed in by Sergeant Viera who reviewed the Prisoner Log Sheet, confirmed it with Mr. Saunders and then directed the arresting officers and Mr. Saunders to an interview room. [ 16 ] But before going into the interview room, Mr. Saunders was taken into a nearby bathroom by the two officers and “skin searched”. More will be detailed about this evidence below. [ 17 ] He was then subject to a brief medical examination to obtain his vitals, such as blood pressure, by an on-site paramedic. He was medically cleared.

There were no concerns. [ 18 ] Constable Walker confirmed in his testimony that this was a “typical process”. EVIDENCE ABOUT THE SKIN SEARCH/STRIP SEARCH [ 19 ] The bathroom is a private area.

Constable Walker testified that as far as he knew, it is police policy to have two people present just to ensure that the skin search is appropriate and conducted in a respectful manner. [ 20 ] He testified that he and his partner had a very brief conversation and both decided it was appropriate to conduct a skin search, because its antecedents were a previous fentanyl trafficking investigation, and in his experience, it is typical for street-level traffickers to conceal drugs within their clothing or within their body.

Typically, the quantities are smaller and easily concealed and, “it is, I believe, common practise for drug traffickers to conceal the drugs within their undergarments to avoid detection if stopped by the police”. He has located drugs in underwear in his strip searches of drug traffickers approximately 10 times. [ 21 ] He testified that he and his partner did not discuss the grounds for the skin search. Patrol Sergeant Ring was not mentioned in his notes. [ 22 ] At the time, they believed that Mr.

Saunders was conducting hand-to-hand drug transactions out of the Kia vehicle and that the quantities being sold were small, at the gram level. They had witnessed what they believed to be several transactions out of that vehicle in March. They believed he was leaving the house that day to conduct drug transactions. [ 23 ] Constable Walker testified that in

summary, his grounds to conduct the strip search were as follows, although this was not noted in his police officer notes: 1) Mr. Saunders was identified as a street-level dealer, and street-level amounts are small and easily concealed within undergarments. In Constable Walker’s experience, he has even seen pockets sewn into underwear; 2) Fentanyl is dangerous, and there is a safety concern for traffickers who may intentionally or unintentionally ingest fentanyl. [ 24 ] Nothing was located during the skin search of Mr.

Saunders. [ 25 ] There was no fentanyl located in the vehicle in which he was arrested. [ 26 ] Constable Walker testified as follows about the manner in which skin searches are conducted: 1) The subject is brought to a private area; 2) There are two members of the same gender with them; 3) The accused is never completely undressed; 4) The accused removes one garment at a time and replaces it before the next garment is removed; 5) The subject is not touched by police. [ 27 ] Constable Walker testified that the search took 30 seconds to one minute. [ 28 ] Constable Walker had only five pages of police officer notes covering the five hours Mr.

Saunders was in his custody. Two of those pages are annotator notes from the police interview. [ 29 ] The only notations related to the skin search were on page two of his police narrative, which states, “Skin searched” and “skin searched negative”. The whole passage where the skin search is referenced in his narrative reads as follows: Saunders was conveyed to WPS Headquarters. Once there he was brought through CPU, viewed in by Sergeant Viera, skin searched and medically cleared by the on-scene paramedic.

[ 30 ] The only reference to the skin search in his notes is at page 19 where he wrote, “skin searched negative”. [ 31 ] The notes and narrative contain no detail of who conducted the skin search or the presence or involvement of Patrol Sergeant Ring. [ 32 ] Constable Walker testified that he was relying completely on his memory about the skin search, but he has always followed the same process. [ 33 ] Constable Walker testified that usually one officer does the visual and one officer searches the items of clothing that are removed by the accused. [ 34 ] Constable Walker agreed in his testimony that officers had not seen Mr.

Saunders trying to hide anything, he was never alone and police did not observe any bulge in his clothing. [ 35 ] He also agreed in cross-examination that a skin search can be humiliating, embarrassing and that the only more humiliating search would be a body cavity search. [ 36 ] According to the officer, Mr. Saunders’s shirt was removed and searched and returned. Then his pants were removed and searched. But then the underwear were removed and searched and returned. [ 37 ] Which meant that Mr. Saunders was completely naked below the waist at that point. [ 38 ] Constable Walker did not remember whether Mr.

Saunders was wearing looser-fitting, boxer-type underwear, which might be able to conceal items undetected, or tighter briefs, which might not be able to conceal anything tucked into them. [ 39 ] While he was naked from the waist down, Mr. Saunders was asked to manipulate his genitals to ensure nothing was hidden behind or around the genital area. He was asked to turn around so police could have a visual inspection to determine if anything was hidden around the body cavity.

He was not required to squat, manipulate his buttock cheeks or bend over. [ 40 ] Constable Walker testified that although skin searches are frequently conducted on accused drug dealers, the majority are not skin searched. EVIDENCE ABOUT THE RIGHT TO COUNSEL [ 41 ] At 6:06 p.m. while in the back of the police vehicle, Mr. Saunders was provided his Notice of Arrest, Right to Counsel, and Charge and Caution on the charges of possession for the purpose of trafficking, possession of property obtained by crime, and failure to comply with his release order. He did not respond to his right to counsel.

It was repeated and he simply said, “Eleanor Funk”. He did not respond to the Charge and Caution. [ 42 ] He was not provided the opportunity to speak with Ms. Funk. [ 43 ] He asked the officers to call Topaz, a woman he was supposed to pick up at the airport. He provided the police her phone number. [ 44 ] At 6:18 p.m. he was provided his Charge and Caution again, and this time answered that he understood. He asked for Eleanor Funk. [ 45 ] He was not provided the opportunity to speak with her. [ 46 ] When asked during the voir dire if he had considered allowing Mr.

Saunders to make a call in the police vehicle, Constable Walker answered that he did not and it is not their practise to do so. He testified that he has never allowed an accused to make a call on their own phone in the police vehicle. “Typically, we hope to get to the station in a timely way.” [ 47 ] The police waited at the scene with Mr. Saunders in custody for another 20 minutes. Constable Walker testified that when a search warrant is being executed they typically stay on scene as a “turnover crew” until the Tactical Support Team (TST) confirms there is no one else in the house or the vehicle.

If there was someone else in the house or vehicle, Constable Walker’s unit would have assisted and contacted another unit to transport Mr. Saunders to police HQ. He was asked if it was not possible to request another team, and he testified that he believed that his unit was the only uniform unit, as other members were acting in a surveillance capacity and TST members do not typically hold people who are placed under arrest. [ 48 ] They arrived at HQ at 6:43 p.m. [ 49 ] The sally port, Prisoner Log Sheet, CPU process occurred, as did the strip search. [ 50 ] Mr.

Saunders had requested to speak to a lawyer twice before that, at 6:06 p.m. and 6:18 p.m. When asked why he was not permitted to speak with a lawyer prior to the strip search, Constable Walker testified that he would not have had privacy before that. [ 51 ] He was placed in a video interview room at 7:16 p.m. [ 52 ] He was provided his Notice of Arrest on all charges again, and his Right to Counsel again. Constable Walker confirmed that he wanted to speak with Eleanor Funk, to which Mr. Saunders answered, “Yeah”. And he confirmed that she was in Calgary. [ 53 ] At 7:30 p.m., officers advised Mr.

Saunders they were calling his lawyer. They also advised him that they would call his friend Topaz whom he was supposed to pick up at the airport, and Mr. Saunders gave the officers her number. He asked officers to tell her to chill and get a hotel and they said they would.

[54] Officers were having difficulty reaching Ms. Funk and asked Mr. Saunders if her name was Eleanor J. Funk. Mr. Saunderswas not sure. At 7:36 p.m. they asked if she was from Toronto and Mr. Saunders advised she was from Calgary, at a specific address. [55] He asked if they could call his buddy to call his lawyer. They did not. [56] At 7:43 p.m., Constable Walker came back into the interview room and told Mr. Saunders that they looked up Ms. Funk on aninternet search and tried the number, but it was either out of service or incorrect, as there was not even an opportunity to leave a message.

Further Google searches netted no further results. Constable Walker asked if he had another number. He answered that he did not. [57] Months later the police learned that Ms. Funk had been appointed to the Bench in Alberta. [58] Constable Walker then asked if he would like to speak to a different lawyer or Legal Aid. He answered that he would wait. [59] Then the police reached Ethan Pollock, the on-call lawyer for Legal Aid and Mr. Saunders spoke to him between 7:46 and 7:56p.m. [60] Police checked on whether he needed anything. Mr.

Saunders did not and did not make any further requests for counsel afterspeaking with Mr. Pollock. [61] After approximately three hours, police returned to the interview room (with checks in between) and laid specific andadditional charges: possession for the purpose of trafficking in fentanyl and Percocet pills, possession of property obtained by crime,possession of a prohibited weapon (a switchblade) and six charges of failure to comply with a release order. He was provided his right tocounsel again, because of the new charges. Mr. Saunders said he understood.

When asked if he wanted to talk to a lawyer again heanswered in the affirmative. He was asked if he wanted to talk to Mr. Pollock again and he answered “yeah”. Officers were not able toreach Mr. Pollock again and asked Mr. Saunders if he wanted them to call a different Legal Aid lawyer. He told them to call a particularphone number with a Manitoba area code. Police asked who that was, was it a lawyer because they have to call a lawyer. He said it was“Lane”. Officers asked for the last name; Mr. Saunders said it was a Polish name and he did not know it. He told the police Lane was alawyer.

Constable Walker went to call Lane. [62] He came back and advised that Lane is not a lawyer. Mr. Saunders said that Lane was a friend who could get hold of hislawyer. He and the officer were at that point arguing about whether he should be allowed to contact a person other than a lawyer, withMr. Saunders saying that he was allowed to speak to others on the phone when he was arrested in Calgary. [63] It is clear that the interaction between them that Mr. Saunders was cordial until this point in the evening, when he appeared tobe frustrated that the police would not call his friend to get a lawyer for him.

Constable Walker testified that although it probably wouldnot have been onerous to make this call, he had never done it before. [64] Finally Mr. Saunders agreed to talk to a Legal Aid lawyer. [65] At 10:44 p.m., the police contacted Legal Aid and spoke to a lawyer named Daphne Comegan. [66] Mr. Saunders spoke to Ms. Comegan from 10:52 to 10:55 p.m. [67] At 10:59 p.m., Constable Walker re-entered the interview room and advised Mr. Saunders they had contacted Topaz andadvised her he would be there for awhile and that she should get a hotel room. [68] The phone rang; it was Mr. Pollock calling back. [69] Mr.

Saunders spoke to Mr. Pollock again from 11:01 to almost 11:03 p.m. [70] Police interviewed Mr. Saunders between 11:03 and 11:57 p.m. and then between 12:21 and 1:03 a.m. ANALYSIS AND DECISION REGARDING THE STRIP SEARCH [71] The search for and seizure of the drugs is circumscribed by the protections in Charter

section 8, the right to be free fromunreasonable search and seizure. The animating purpose of the Charter right is protection of the privacy interests of people vis-à-vis thestate. [72] Because this was a warrantless search, the onus is on the Crown to satisfy the Court that it was nonetheless a reasonablesearch. A warrantless search can be considered legal or reasonable if the Crown can prove that: 1) It was authorized by law; 2) The law is reasonable; and 3) The manner in which the search was carried out was reasonable (see R v Collins, (SCC), [1987] 1 SCR 265). [73] This was a search incident to arrest.

I leave aside for now whether there were reasonable grounds for the arrest. Because thiswas a strip search, there are additional requirements in order to make it lawful. [74] The Supreme Court has established an additional and higher degree of justification for strip searches, in recognition of thehigher degree of interference with individual freedom and dignity. [75] The governing law with respect to strip searches is set out in R v Golden, 2001 SCC 83. The reason for elevated protections foraccused persons subject to strip searches is set out at paragraph 99 of the case:

In light of the serious infringement of privacy and personal dignity that is an inevitable consequence of a strip search, such searches areonly constitutionally valid at common law where they are conducted as an incident to a lawful arrest for the purpose of discoveringweapons in the detainee’s possession or evidence related to the reason for the arrest. In addition, the police must establish reasonableand probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest.

Where thesepreconditions to conducting a strip search incident to arrest are met, it is also necessary that the strip search be conducted in a mannerthat does not infringe s. 8 of the Charter. [Emphasis added.] [76] A strip search is not valid unless this second level of justification is met, because of its intrusiveness and interference withpersonal privacy and dignity: Furthermore, strip searches can be humiliating, embarrassing and degrading for those who are subject to them, and any post factoremedies for unjustified strip searches cannot erase the arrestee’s experience of being strip searched.

Thus, the need to prevent unjustifiedsearches before they occur is more acute in the case of strip searches than it is in the context of less intrusive personal searches, such aspat or frisk searches. As was pointed out in Flintoff , [ (ON CA), [1998] O.J. No. 2337], at p. 257, “[s]trip-searching isone of the most intrusive manners of searching, and also one of the most extreme exercises of police power”. [Golden at para 89.] [77] A strip search is only “authorized by law” when it is necessary in the particular circumstances of the case.

The “merepossibility that an individual may be concealing evidence or weapons upon his person is not sufficient to justify a strip search” (Golden,at para 94). [78] Routine strip searches of anyone arrested for drug trafficking are not justified.

The fact that police may have reasonable andprobable grounds to arrest a person for drug trafficking “does not confer upon them the automatic authority to carry out a strip search”(Golden, at para 98). [79] The additional grounds relating to the purpose of the search set a high bar: “[P]olice must establish that they have reasonableand probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest” (Golden, at para 98;emphasis added). [80] In this case, there was nothing but a generalized suspicion that street-level drug dealers have been known to secrete these smallamounts of drugs inside their clothing, even their underwear.

In the specific circumstances of this arrest however, there was nothing totake it from the general to the specific. No drugs had ever been seen or seized in the period of time leading up to the arrest. Mr.Saunders was not seen to be fussing with his clothing nor doing anything that would suggest he was hiding drugs in his clothing. He wasnot uncooperative, stalling nor demonstrating any behaviour that suggested he was hiding drugs on his body. There were no bulges.

There was no note of the type of underwear he was wearing which, depending on how tight or loose they were, might have providedsome additional helpful information about why a strip search was necessary. Although the police suspected the accused was traffickingfentanyl, no drugs were found on his person or in the vehicle. [81] The arresting officer had not included in either his notes or narrative any grounds for the necessity of a strip search. He did nothave the search authorized by a supervising officer.

Although Patrol Sergeant Ring’s rank might suggest that he could have beensomeone to authorize a strip search, there was no evidence that he was operating in a supervisory capacity to authorize such a search thatday. He was not even acting as the lead investigator. He was acting as Constable Walker’s partner and they had a “brief conversation”and decided to conduct a strip search. According to Constable Walker, it was because of the background to this arrest, with policebelieving Mr.

Saunders to be involved with one of the phone numbers previously identified as part of a fentanyl trafficking operation,and because street-level traffickers were known to hide drugs inside their clothing.

Constable Walker and his partner did not discuss thegrounds to necessitate the search. [82] The absence of specific grounds and reference more than once to the entire process as “typical” characterize this as anunauthorized and unnecessary strip search. [83] This case is very similar to the cases of R v Gessen, 2022 MBKB 210 and R v McKenzie, 2022 MBKB 238, in terms of thecircumstances leading to the strip searches of the accused drug traffickers. There were no specific grounds to conduct a strip search ineither of those cases and both Justice Greenberg in the former and Justice Harris in the latter, found

section 8 breaches.

Police officers inboth those cases testified that it was police practise to strip search all drug traffickers. [84] Unlike the officers in those cases, who testified that it was “police practise” to strip search everyone arrested on a drug chargesand “in all drug trafficking incidents, a skin search is always conducted” (McKenzie, at para 35), Constable Walker did not testify that itis practise in every case, but he was unable to articulate one specific factor that made a strip search necessary in this case and he referredto the process as HQ including the strip search several times as “typical”. [85] Justice Greenberg distinguished the case of R v Ali, 2022 SCC 1, as do I.

The Crown relied on Ali in Gessen, and they did inthis case, for the proposition that “some evidence” suggesting the possibility that the accused was concealing drugs in and around hisbuttocks was sufficient to justify a strip search. In Ali, however, the police had confidential information that the accused was inpossession of a large quantity of cocaine and kept most of his drugs on his person. He was found next to a table with drugs other thancocaine (suggesting the cocaine had been secreted on his person), his pants were partially down and he was reaching towards the back ofhis pants.

That was quite compelling evidence that Mr. Ali might have cocaine hidden around his buttocks.

[ 86 ] The Crown also relied on R v Ulrich , 2012 MBQB 170 , where the trial judge did not find that the strip search was a violation of

section 8 because one of the officers’ evidence was somewhat equivocal about whether the police had a blanket policy to conduct strip searches of all drug traffickers, and because the purpose of the search was to locate drugs. It is clear that this case has been eclipsed in the past 10 years by the SCC’s decision in Ali , and the King’s Bench decisions in Gessen and McKenzie , which have confirmed the requirement that there be some evidence that the person has drugs on their body. [ 87 ] The Crown also filed an appellate decision from Alberta, R v Upright , 2020 ABCA 227 . The Court upheld the trial judge’s decision, finding that there was no breach of

section 8 in the strip search, because the judge “outlined many facts underlying the constables’ belief as to why the strip search was necessary in this case” (at para 23). It is not clear whether all these facts were included in the appellate decision, but some of the underlying circumstances were that drugs and drug paraphernalia were found in a bag and one of the accused’s purse. She was reluctant to let the police have her purse. After the initial stop, the co-accused were left alone in their vehicle while police were confirming their identities.

Then the female accused was left in the vehicle alone after the searches on her co- accused and while police were deciding whether to arrest her. Finally, police testified that if she was to be arrested and held, she would be in cells that could hold at least three others, bringing her in contact with other detainees. As the Court stated, In our view, the factors relied upon by police and accepted by the trial judge were appropriate, fact-specific considerations that justified the appellant’s strip search.

They were not impermissibly vague criteria that could apply to a vast category of offenders, nor was there a bare assertion that the appellant should be searched simply because she was charged with drug trafficking offences. [ Upright , at para 24] [ 88 ] Unlike that case, the evidence of why the strip search was necessary in this case was “impermissibly vague criteria” that the officer has frequently seen drug traffickers hide drugs on their body. [ 89 ] It is not necessary to go beyond this stage of the analysis to find a

section 8 breach. There is no evidence that a strip search was reasonable or necessary in this case. [ 90 ] However, the manner in which the search was conducted was also problematic. The Supreme Court of Canada in Golden (at para 101 ), set out a framework for police on how to conduct strip searches to ensure they are compliant with Charter rights: 1. Can the strip search be conducted at the police station and, if not, why not? 2. Will the strip search be conducted in a manner that ensures the health and safety of all involved? 3. Will the strip search be authorized by a police officer acting in a supervisory capacity? 4. Has it been ensured that the police officer(

s) carrying out the strip search are of the same gender as the individual being searched? 5. Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances? 6. What is the minimum of force necessary to conduct the strip search? 7. Will the strip search be carried out in a private area such that no one other than the individuals engaged in the search can observe the search? 8. Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time? 9.

Will the strip search involve only a visual inspection of the arrestee’s genital and anal areas without any physical contact? 10. If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), will the detainee be given the option of removing the object himself or of having the object removed by a trained medical professional? 11. Will a proper record be kept of the reasons for and the manner in which the strip search was conducted? [ 91 ] In this case, the search was not authorized by a police officer acting in a supervisory capacity.

Defence argued that having two officers in a small, 10-foot by 10-foot bathroom was unnecessary. Constable Walker testified that the reason for two officers is to ensure that the search is conducted properly and respectfully. I am not as concerned about the presence of two officers as I am about the lack of supervisory authorization, and that there was no record kept of the reasons for the search and the manner in which the search was conducted. [ 92 ] I find that in this case, the strip search was not authorized by law and it was not carried out in a reasonable manner. The police thereby violated Mr. Saunders’s

section 8 right to be free from unreasonable search and seizure. ANALYSIS AND DECISION REGARDING RIGHT TO COUNSEL [ 93 ]

Section 10(

b) of the Charter provides: Everyone has the right on arrest or detention . . .

(

b) to retain and instruct counsel without delay and to be informed of that right [ 94 ] The duty to inform a detained person of his right to counsel rises immediately upon arrest or detention, in recognition of the need for protections from self-incriminating and interference with liberty which arise immediately when someone is detained or arrested ( R v Suberu , 2009 SCC 33 at paras 2 and 41 ). [ 95 ] In this case, a period of over one and one-half hours elapsed from when Mr. Saunders first advised police that he wanted to speak with his lawyer and identified his lawyer, and when he spoke to a lawyer.

He was on scene waiting in the police vehicle for 20 minutes, during which time he had advised police twice that he wanted to speak with Ms. Funk. Constable Walker had not considered whether it was possible or feasible to allow a call to counsel in that circumstance. [ 96 ] The explanation for the delay at that stage was that the unit which arrested Mr. Saunders waited for the TST to clear the area. The explanation for the further delay at police HQ was a lack of privacy. I reject that latter explanation; Mr.

Saunders could have been placed in an interview room with video surveillance capability to speak with counsel at any point prior to being subjected to a strip search. [ 97 ] The Supreme Court rejected the justification of “police duties” for delay in the implementation of the right to counsel: To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(

b) creates an ill-defined and unworkable test of the application of the s. 10(

b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words “without delay” mean “immediately” for the purposes of s. 10( b ) .

Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter , the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention . [ Suberu , at para 42 ; emphasis added] [ 98 ] More concerning is that there was no indication that the police told Mr. Saunders that he would be subject to a strip search.

Critically, he was not given an opportunity to speak to his lawyer about the strip search before it occurred, even though he had told police twice by then that he wanted to speak to a lawyer. [ 99 ] The constitutional imperative to ensure that the detainee or arrestee is provided an opportunity to speak with counsel as soon as practicable to reduce the possibility of self-incrimination and elicit evidence from the accused was reiterated in R v Taylor , 2014 SCC 50 .

In that case, the accused was arrested for impaired driving causing bodily harm when he lost control of his vehicle and injured three of his passengers. The Court considered that he was not given an opportunity to speak to his lawyer at the scene of the accident, nor at the hospital where vials of blood were taken from him, as violations of his right to counsel. Similar to Constable Walker’s evidence that there was no reasonable opportunity to allow Mr. Saunders to speak to counsel until he was placed in an interview room because he was not sure if Mr.

Saunders had a phone (in the police vehicle) and there was no privacy in the police station outside of that room, the police in Taylor testified there was either no available phone or private area at the accident scene or in the hospital. Writing for the Court, Justice Abella rejected assumptions of impracticality, stating that “[b]arriers to access must be proven, not assumed, and proactive steps are required to turn the right to counsel into access to counsel” (at para 33; emphasis in original).

It is the Crown’s burden to show that the delay in allowing an accused to speak with a lawyer was reasonable in the circumstances. I am not satisfied that it was not possible for police to allow Mr. Saunders access to a phone before 7:46 p.m., when he finally spoke to a lawyer, an hour and three quarters after his arrest. [ 100 ] Generally, I found Constable Walker to be courteous and even helpful to Mr. Saunders, and it appeared he was diligent in his efforts to contact Ms. Funk, then Legal Aid on-call lawyers.

But, he did not allow nor appreciate that a third-party call to facilitate access to one’s lawyer is permissible and required in some cases. ( See R v Sakhuja , 2020 ONCJ 484 at para 61 ; R v Jeyalingam , 2021 ONCJ 433 at paras 22 – 31 ). At 7:36 p.m., Mr. Saunders asked the police to call his friend “Chas” who could call his lawyer. [ 101 ] In circumstances where the police were willing to call a friend of Mr. Saunders to advise her that Mr. Saunders was unable to pick her up at the airport, it is not acceptable that they were unwilling to call a friend to access his choice of counsel.

It is a breach not to allow him to call a third party, or in this case, have the police call a third party on his behalf, to get his lawyer’s number. Moreover, the friend might have been able to inform him that Ms. Funk was no longer practising law because she was a judge, precluding much of the delay. [ 102 ] I do not find that the police were funnelling Mr. Saunders to Legal Aid. They were unable to reach his counsel of choice and in that circumstance asked him if he was willing to speak with the on-call lawyer for Legal Aid and then provided him the ability to speak to that lawyer. Mr.

Saunders spoke to the lawyer and appeared to be satisfied with his call. He asked to speak to him again later, when he was charged with additional offences. [ 103 ] In these circumstances, I find that Mr. Saunders’s right to speak to counsel, protected by

section 10(b), was violated. There was unreasonable delay in providing him the ability to speak with a lawyer, especially before the critical strip search, and there was a violation of his right to speak to counsel of choice by refusing to call his friend to get the number for his lawyer.

DECISION [ 104 ] For the reasons stated, I have found breaches of both

section 8 and

section 10(

b) in this voir dire . The issue of remedy will be argued and determined at a future date. Original signed by Judge Devine C.A. DEVINE, P.J.