R. v. Lambert, 2020 NSPC 37

Provincial Court of Nova Scotia Citation: R. v. Lambert , 2020 NSPC 37 Date: 2020-10-06 Docket: 8260204, 8260205, 8020206, 8260207, 8260208, 8260209, 8060210, 8260211, 8260212, 8260213, 8260214, 8260215, 8060216, 8260217, 8060218 Registry: Halifax Between: Matthew Lambert, Darcy Bailey and Dangis Seinauskas Applicants v.

Her Majesty the Queen Respondent Decision Global voir dire – Voluntariness, Charter (ss. 7, 8, 9 & 10), garofoli and s. 24(2) Judge: The Honourable Judge Elizabeth Buckle Heard: May 6 - 10, 14 - 16 & 24, June 18, 20 & 21, July 3, 25, 29 & 30, 2019 in Halifax, Nova Scotia Decision: October 6, 2020 (written) Charges: Section 465(1) (c), Criminal Code and ss. 5(2) , 5(1) & 6(1), Controlled Drugs and Substances Act Counsel: Joel Pink, Q.C. and George Franklin, for the Applicant, Matthew Lambert Patrick MacEwen, for the Applicant, Darcy Bailey Stanley MacDonald, Q.C. and Paul Neifer, for the Applicant, Dangis Seinauskas Jeff Moors & Angela Nimmo, for the Respondent, Crown By the Court: Introduction [ 1 ] Nelson Alvarado-Calles, Matthew Lambert, Darcy Bailey, and Dangis Seinauskas are charged with offences relating to the importation of 157 kg of cocaine.

The cocaine was discovered in an underwater chamber (sea chest) in the hull of a cargo vessel, the Arica. [ 2 ] The Arica first came to the attention of authorities in the Port of Montreal. Information was passed on to the RCMP in Halifax, the Arica’s next port of call. Upon its arrival in Halifax, authorities discovered anomalies with the grate covering one of the Arica’s sea chests and saw three or four men in a pontoon boat behaving suspiciously around the vessel. RCMP found the pontoon boat a short time later and had a conversation with Mr. Bailey and Mr. Seinauskas who were onboard.

Through that afternoon and early evening, authorities continued surveillance on the Halifax waterfront, around the Arica and at a nearby beach. They came to focus on four individuals, believed to be the accused. By the end of the day, Mr. Lambert, Mr. Bailey, and Mr. Seinauskas had been arrested and the cocaine found in the Arica’s starboard sea chest. Mr. Alvarado-Calles was arrested some weeks later in Ontario. [ 3 ] Mr. Lambert, Mr. Bailey and Mr. Seinauskas have applied for exclusion of evidence under s. 24(2) of the Charter , alleging breaches of ss. 7, 8, 9, and 10(a) & (

b) of the Charter . The alleged s. 8 violations relate to warrantless and judicially authorized searches. production orders and interceptions of private communications. Mr. Bailey and Mr. Seinauskas also challenged the voluntariness of their initial statement to police onboard the pontoon boat. [ 4 ] Mr. Alvarado-Calles did not take

part in the applications, but his counsel maintained a watching brief. [ 5 ] The Applicants allege a series of Charter breaches beginning with breaches of ss. 7 and 10 during the first interaction between police and Mr. Bailey and Mr. Seinauskas onboard the pontoon boat. They argue that information obtained during that interaction was used to focus further investigation, led to the discovery of evidence, and resulted in a cascade of subsequent Charter violations. They also argue other Charter violations during the ensuing investigation that are not dependent on that initial information.

If I find Charter breaches, they will argue that the individual and cumulative impact of these breaches justifies exclusion of evidence. [ 6 ] Counsel agreed to a global voir dire to deal with all alleged Charter breaches, including a Garofoli hearing in relation to the first search warrant. Since grounds for subsequent judicial authorizations relied on similar information, it was thought that a decision on the first warrant would inform analysis of the later authorizations. A separate voluntariness voir dire was scheduled.

However, counsel agreed that the evidence from the global Charter voir dire could apply and no further evidence was required.

[ 7 ] The amount of time required for the voir dire was underestimated. It was difficult to

schedule additional time for both the voir dire and the trial. To make the best use of court time and the availability of counsel and witnesses, some matters were heard out of order. Considering the principles in R. v. Jordan, 2016 SCC 27 and R. v. Cody , 2017 SCC 31 and to assist counsel, I provided conclusions and decisions on specific issues as the matter proceeded. [ 8 ] This decision deals with all matters and incorporates reasons previously given. Factual Overview [ 9 ] On June 7, 2018, Cpl.

Sherri Campbell (then constable) with the RCMP Federal Serious and Organized Crime unit (FSOC) in Halifax received information from a colleague in Montreal concerning suspicious activity around a cargo ship, the M/V Arica (the Arica). The Arica was headed for Halifax and the author of the email believed the information might be relevant to “marine smuggling”. Cpl. Campbell advised Sgt. Nancy Mason who was in charge of the Halifax FSOC unit. Sgt.

Mason advised Canada Boarder Services Agency (CBSA) in Halifax who agreed to conduct an examination of the Arica when it arrived. [ 10 ] The Arica arrived in Halifax early on the morning of June 9 th . CBSA investigators conducted an inspection of its underwater hull using a Remotely Operated Vehicle (ROV) and noted anomalies on the starboard sea chest (an open chamber in the hull that allows sea water to enter for engine cooling purposes). CBSA investigators on the bridge of the Arica also observed a suspicious pontoon boat in the area. Details were provided to Cpl. Campbell and Sgt. Mason. Sgt.

Mason felt confident they were dealing with a drug importation. She approved Cpl. Campbell to conduct surveillance and Sgt. Aaron Glode (then corporal), was called in to assist. [ 11 ] Cpl. Campbell and Sgt. Glode went to the Halifax waterfront to look for the pontoon boat and located it around 1:00 p.m. at a pier in downtown Halifax. It was unoccupied and contained diving gear and a hand-held radio. A short time later, two men, later identified as Mr. Bailey and Mr. Seinauskas boarded the boat.

As the men were preparing to leave, the officers approached and, with permission, boarded the boat and had a conversation. They remained on the boat for about 20 minutes and learned, among other things, that Mr. Bailey and Mr. Seinauskas were with two other men who were diving at Black Rock Beach in Point Pleasant Park, they were driving a Black Cadillac Escalade with Quebec plates and were staying at the Future Inn in Bedford. Black Rock Beach is adjacent to the pier where the Arica was docked so Cpl.

Campbell called to alert CBSA investigators on the Arica that there might be divers in the water at Black Rock Beach. [ 12 ] CBSA IO Amanda Visser was on the Arica. As a result of the call from Cpl. Campbell, at about 1:40 p.m., she started to walk the deck to look for divers. [ 13 ] At about 1:50 p.m., Cpl. Campbell and Sgt. Glode left the dock area to return to their vehicle and Mr. Bailey and Mr. Seinauskas left in the pontoon boat. At approximately 1:55 p.m., IO Vissers saw the pontoon boat reappear in the harbour, heading toward Black Rock Beach. Sgt. Glode and Cpl.

Campbell drove to Black Rock Beach to look for the other two men, arriving at about 2:00 p.m. Once there, they located the Escalade in the parking lot. Sgt. Glode saw a diver, later identified as Matthew Lambert, just coming out of the water and another man, later identified as Nelson Alvarado-Calles, on shore. He also saw the pontoon boat in the Harbour just off the beach. The pontoon boat left the area, heading in the direction of downtown. Mr. Lambert and Mr. Alvarado-Calais loaded the dive gear into the Escalade and left. [ 14 ] Sgt. Glode and Cpl.

Campbell followed the Escalade to a parking lot on the waterfront in downtown Halifax. Mr. Bailey and Mr. Seinauskas arrived in the pontoon boat and met Mr. Lambert and Mr. Alvarado-Calles. They removed the diving gear from the pontoon boat, put it in the Escalade and the four of them left in that vehicle. The officers tried to follow the Escalade but lost it in traffic. [ 15 ] Sgt. Glode and Cpl. Campbell went back to Black Rock Beach and drove around looking for the Escalade but couldn’t find it so went to check the Future Inn. They located the Escalade there, parked and unoccupied.

They were joined by two CBSA investigators, IO Adam Delvalano and IO Sean Foster, who had been brought in to assist with surveillance. [ 16 ] The Escalade eventually left the hotel and was followed back to Black Rock Beach. IO Foster and IO Delvalano followed the Escalade into the parking lot nearest the beach. During the drive, IO Delvalano thought the route was unusual and thought that at one point he advised others on the radio that there might be a “heat check”. Sgt. Glode and Cpl. Campbell parked in an outer lot, located at the entrance to the beach parking lot. D/Cst. Fairbairn and D/Cst.

Underwood (Halifax Regional Police (HRP) officers who had been brought in to assist with surveillance) arrived shortly after and also parked in the parking lot nearest the beach. IO Foster, IO Delvalano, D/Cst. Fairbairn and D/Cst. Underwood all left their vehicles and observed the beach area and parking lot while on foot, in their vehicles or both. Neither Sgt. Glode nor Cpl. Campbell could see the beach from their location so relied on information provided to them by the other members of the surveillance team. During this time, Cpl. Campbell and Sgt. Glode were also communicating with Sgt.

Mason and CBSA investigators who were on or around the Arica. [ 17 ] Members of the surveillance team saw Mr. Bailey and Mr. Lambert get out of the Escalade and walk along a sea wall toward the Arica. They then returned to the Escalade where Mr. Bailey got dressed in dive gear. At around 6:00 p.m., IO Vissers saw an individual near a black SUV putting on diving gear and heading toward the beach. Members of the surveillance team saw him enter the water and start swimming in the direction of the Arica using a propulsion device.

Once CBSA investigators on the Arica were advised that there was a diver in the water, they decided to pull out the commercial diver who had been inspecting the hull and put the ROV back in. [ 18 ] At approximately 6:30 p.m., while Mr. Bailey was in the water, Mr. Lambert drove the Escalade to the outer parking lot where Sgt. Glode and Cpl. Campbell were located. He took something out of the vehicle, threw it into the woods and then drove back to park near the beach.

The item was retrieved and found to be a socket set connected by a bungee cord with a carabiner attached. [ 19 ] CBSA IO Brian Gillespie was watching the video feed from the ROV and, at approximately 6:45 p.m., he observed a diver under the Arica. The diver waved at the camera on the ROV and then left, using a propulsion device. [ 20 ] Mr. Bailey came out of the water. He had with him an item that was described by IO Foster as a large heavy black

cylinder. Mr. Lambert went to the water to meet Mr. Bailey and they dragged/carried the item and the diving gear up the beach and put it into the back of the Escalade. They got into the vehicle and drove away quickly. [ 21 ] Sgt. Glode and Cpl. Campbell testified they believed contraband had been removed from the Arica and was now in the Escalade, so Sgt. Glode made the decision to stop the vehicle and arrest the occupants. Sgt. Glode and Cpl. Campbell had moved their vehicle from the lot at the entrance to the beach and were closer to downtown so missed the vehicle when it left Black Rock Beach. [ 22 ] D/Cst.

Underwood followed the Escalade. He received instructions from Sgt. Glode to stop the vehicle and arrest the occupants. He contacted Sgt. Perry Astephen, a uniform member of HRP, for assistance. At approximately 7:10 p.m., Sgt. Astephen stopped the vehicle and D/Cst. Underwood arrived moments after. D/Cst. Underwood arrested the driver, Mr. Lambert, for conspiracy to import and possession for the purpose of trafficking cocaine, advised him of his right to counsel and cautioned him and asked if he wished to speak to counsel. He indicated he understood his rights and said, “No man, we don’t have any cocaine”.

An access card for the Future Inn was found in his pocket. [ 23 ] Sgt. Astephen arrested Mr. Bailey, advised him of his right to counsel and cautioned him. Sgt. Astephen made the decision to delay implementation of Mr. Bailey’s right to counsel because of the ongoing investigation. He told Mr. Bailey he would not be able to speak to a lawyer now and told the transport officers to “put him on ice”, meaning they would not be permitted to contact counsel, until they heard from the investigators. After advising Mr. Bailey of his rights, but before he had an opportunity to consult counsel, Sgt. Astephen asked Mr.

Bailey a question, which he answered. [ 24 ] D/Cst. Underwood overheard Sgt. Astephen’s direction to delay implementation of the right to counsel, but no other member of the investigation team was advised that it had been given. [ 25 ] The Escalade was searched incident to arrest and investigators discovered that the cylindrical item that had been removed from the water was a propulsion device and did not contain cocaine. A small quantity of what appeared to be personal use drugs was located in one of the bags in the Escalade. The Escalade was seized and eventually searched again pursuant to a warrant. [ 26 ] Mr.

Bailey and Mr. Lambert were transported to HRP Headquarters where, at approximately 7:40 p.m., they were each placed in a holding room to wait for investigators. Neither were given access to counsel during that time. Mr. Bailey had been wearing a wet dive suit when he was arrested. That was removed (at least the upper part) to facilitate handcuffing but the clothing he was wearing underneath was damp. He was provided with a blanket in the holding room but was not given dry clothes until sometime after approximately 9:30 p.m. [ 27 ] Sgt. Glode and Cpl.

Campbell left the location of the vehicle stop and went to Future Inn to try to locate the other two men. They knew from the access card folder that had been seized from Mr. Lambert that he was staying in room #329. When they arrived, they were told that, moments before, staff had assisted in moving the occupants of that room to #327 due to a faulty lock. [ 28 ] While waiting for uniform police and the emergency response team (ERT), Cpl. Campbell learned that divers had removed bags from the Arica that were consistent with an offload. [ 29 ] When ERT arrived, Cpl. Campbell and Sgt.

Glode knocked on the door to room #327 and it was opened by Mr. Seinauskas. Sgt. Glode stepped inside the room and arrested him. He was turned over to a uniform officer to be transported to HRP Headquarters. There is no evidence that he was cautioned or advised of his right to counsel until later at the station. [ 30 ] At approximately 9:15 p.m., Sgt. Mason met D/Cst. Fairbairn at HRP headquarters and spoke to Mr. Bailey in the holding room. Their interaction was video and audio recorded.

They confirmed that he was under arrest for offences including conspiracy to import cocaine, cautioned him and advised him of his right to counsel. His responses will be discussed in detail later in this decision. [ 31 ] At 9:25, D/Cst. Fairbairn and Sgt. Mason entered Mr. Lambert’s holding room. They confirmed that he was under arrest for offences including conspiracy to import cocaine and advised him of his right to counsel. He asked to speak with a lawyer and arrangements were made for him to consult his counsel of choice. [ 32 ] At 9:40 p.m., D/Cst. Fairbairn spoke with Mr.

Seinauskas and arranged for him to consult with duty counsel. [ 33 ] At approximately 10:10 p.m., Cpl. Campbell and Sgt. Glode arrived at HRP Headquarters. Sgt. Glode spoke with D/Cst. Fairbairn and understood that Mr. Bailey had been cautioned and advised of his right to counsel but had refused. At approximately 10:46 p.m., he and Cpl. Campbell entered Mr. Bailey’s holding room. Their interactions were video and audio recorded. Sgt. Glode provided Mr. Bailey with a secondary caution and “Prosper” warning. Mr. Bailey’s responses will be discussed in detail later in this decision.

He then provided a statement which ended at approximately 12:56 a.m. [ 34 ] On June 10, 2018, Sgt. Glode prepared a search warrant for #327 at the Future Inn. He asked for authority to seize “suitcases, duffle bags, garbage and any other items not associated to the hotel room”. The authorizing Justice of the Peace crossed out “and any other items not associated to the hotel room”. Sgt. Mason was present during the execution of the warrant. She seized luggage, electronic devices, coats and toiletries. [ 35 ] During the days and weeks that followed, additional judicial authorizations were obtained.

These included warrants to search the Escalade, electronic devices that had been seized from room #327 at the Future Inn and the Escalade, residences associated with the four men, production orders to obtain various records and authorizations to intercept communications. [ 36 ] Additional facts will be detailed as they become relevant to specific legal issues. Alleged Breaches [ 37 ] I will address the alleged breaches in chronological order:

1. Pontoon Boat - Mr. Bailey and Mr. Seinauskas - ss. 7, 10(

a) and (

b) of Charter and voluntariness; 2. Roadside - Arrests, Searches Incident to Arrests and Seizure of Escalade a. Mr. Bailey and Mr. Lambert – grounds to arrest and legality of search of persons and vehicle incident to arrest – ss. 8 and 9 b. Mr. Bailey – questioning before opportunity to exercise right to counsel – s. 10(

b) c. Mr. Lambert and Mr. Bailey – seizure of vehicle – s. 8 d. Mr. Lambert and Mr. Bailey - delayed implementation of right to counsel - s. 10(b) 3. Halifax Regional Police Station - Mr. Bailey – s. 10 (b) 4. Future Inn- Arrest of Mr. Seinauskas a. Grounds for arrest – s. 9 b. Lack of Feeney warrant - s. 8 c. Delay in advising of right to counsel - s. 10(a) & (b) 5. Future Inn – Search of Room #327 – Mr. Bailey, Mr. Seinauskas & Mr. Lambert a. Excision and Sufficiency of Grounds – s. 8 b. Over seizure and plain view exception - s. 8 6.

Subsequent Judicial Authorizations – s. 8 [38] Finally, if I find that there were any Charter breaches, I will have to consider exclusion of evidence under s. 24(2). That willrequire me to consider issues relating to the threshold for a remedy under s. 24(2) (standing), derivative evidence, discoverability, thecumulative impact of multiple breaches and how to apply those considerations in the context of a multi-accused/multi-applicanttrial/hearing. Analysis 1. Pontoon Boat - Statement from Mr. Bailey and Mr. Seinauskas - Charter, ss. 7, 10(a (

b) and Voluntariness [39] The Applicants argue that the men were detained when they spoke to police onboard the pontoon boat. As such, they shouldhave been advised of the reasons for their detention, their right to remain silent and their right to retain and instruct counsel without delayas guaranteed by ss. 7 and 10(

a) and (

b) of the Charter. They also argue that irrespective of detention, the men were “suspects” in a drugimportation investigation and should have been advised of that and cautioned. They argue that the failure to do so renders theirstatements involuntary under the common law confessions rule. [40] The Crown argues that the men were not detained, so there was no obligation on the police to provide them rights under ss. 7or 10 of the Charter. The Crown concedes that they were not advised of the s. 10(

b) right to consult counsel, so if they were detainedthis would result in a breach. However, the Crown argues that the information provided was sufficient to comply with s. 10(a). TheCrown also argues that the men were not suspects in a drug investigation, so no caution was required. Alternatively, the Crown arguesthat even if they were “suspects” and deserving of a caution, the failure to provide one in these circumstances did not breach s. 7 of theCharter or make the statements involuntary. [41] The specific issues therefore are as follows:

a) Were Mr. Bailey and Mr. Seinauskas detained when they spoke with police on board the pontoon boat?

b) If they were detained, was the information provided by police sufficient to comply with s. 10(

a) of the Charter?

c) Were police required to caution Mr. Bailey and Mr. Seinauskas? If so, does the failure to caution them in these circumstances, renderthe statements involuntary and/or violate s. 7 of the Charter? Legal Framework for ss. 7, 10(a) & (

b) and Voluntariness Detention [42] The police duties under ss. 10(

a) and (

b) of the Charter are triggered by any form of detention, including investigativedetention (R. v. Suberu, 2009 SCC 33, at para. 2; R. v. Grant, 2009 SCC 32; and R. v. Mann, 2004 SCC 52). [43] The defence has the burden of proving detention on a balance of probabilities. A detention can arise in various circumstances(R. v. Therens, (SCC), [1985] 1 S.C.R. 613; R. v. Mann, 2004 SCC 52, at para. 19; R. v. Grant, supra, at paras. 26 & 44;and Suberu, supra, at para. 3). [44] In this case, the Applicants are alleging psychological detention. The test for psychological detention in the absence of legal

compulsion is whether the police conduct would cause a reasonable person to conclude that he or she no longer had the freedom tochoose whether or not to cooperate with the police (Grant, supra., at para. 31; and Suberu, supra., at para. 26). So, this case is aboutwhether a reasonable person in the circumstances of Mr. Bailey and Mr.

Seinauskas would have concluded that he or she had no choicebut to stay with the officers and answer their questions (Grant, supra., at paras. 30, 26, 31 & 44; and Suberu, supra., at paras. 3 & 22). [45] This is an objective test (Grant, supra., at paras. 31 & 44; and Suberu, supra., at para. 22). As such, the subjective belief ofthe specific accused is relevant but not determinative (Grant, supra., paras. 32 & 50). Neither Mr. Bailey nor Mr. Seinauskas testifiedand were not required to.

The onus to establish psychological detention requires evidence but can be satisfied from evidence other thanfrom the applicant (Grant, supra., at para. 49). [46] The circumstances must be assessed from the perspective of the individual. Therefore, the subjective intent of the policeofficer is also not determinative.

It is relevant only insofar as their intent may have been conveyed to the individual through the officer’sdemeanour, words or actions as would be reasonably perceived by the individual (Grant, supra., at paras. 31 & 32). [47] Not every interaction with police amounts to a detention for Charter purposes (Mann, supra.; Grant, supra., at paras. 26 & 29;and Suberu, supra., at para. 3).

Constitutional rights, including the right to counsel under s. 10(b), are triggered when an individual’sliberty interest is suspended “by a significant physical or psychological restraint” (Grant, supra., at para. 44; and Suberu, supra., at para.25, emphasis added).

Detention is not the same as “delayed” or “kept waiting” and does not necessarily arise even when a person isunder investigation for criminal activity and is questioned or physically delayed by contact with the police (Mann, at para. 19; Grant, atpara. 26; and Suberu, at paras. 3 & 23). [48] The determination of whether a psychological detention has occurred “must be made in light of the circumstances as a whole”but, in Grant (supra., at para. 44) the court provided a non-exhaustive list of factors which would be relevant: (

a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police wereproviding general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out theindividual for focussed investigation. (

b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred;the presence of others; and the duration of the encounter. (

c) The particular characteristics or circumstances of the individual, where relevant, including age; physical stature; minority status; levelof sophistication. [49] The Supreme Court has acknowledged that “[t]he line between general questioning and focussed interrogation amounting todetention may be difficult to draw” (Grant, supra., at para. 29). Even focussed suspicion or questioning of a person who is underinvestigation for criminal activity does not necessarily turn an encounter into a detention (Suberu, supra., at para. 23; Mann, supra., atpara. 19).

What is important is how the police interact with the subject based on that suspicion and whether that interaction would causea reasonable person to believe he or she was not free to choose to walk away or decline to answer questions (Grant, at para. 41). Right to be Informed of Reasons for Detention under s. 10(a) [50] If Mr. Bailey and/or Mr. Seinauskas were detained, the police were required to advise them in “clear and simple language, ofthe reasons for the detention” (Mann, at para. 21). [51] An important purpose of s. 10(

a) is to inform a detainee of the extent of his jeopardy thus allowing him to make informedchoices about whether to exercise his other Charter rights, including his right to counsel and right to silence (R. v. Evans, (SCC), [1991] 1 S.C.R. 869; and, R. v. Nguyen, 2008 ONCA 49, paras. 20 – 21; and, R. v. Hebert, (SCC), [1990] 2SCR 151 . The police are not required to use the technical wording of the offence that is under investigation (R. v. Roberts, 2018 ONCA411, at para. 63).

However, the information must convey the true extent of the detainee’s jeopardy (ibid., at para. 78; Evans, supra., atpp. 886-88; and, Nguyen, supra., at paras. 16-22.). Right to Silence – Police Caution, Common law Confessions Rule and s. 7 of the Charter General Principles [52] Under the common law confessions rule no statement made by an accused to a person in authority is admissible unless theCrown proves beyond a reasonable doubt that it was made voluntarily (see: R. v. Spencer, 2007 SCC 11, para. 11).

The confessions ruleis concerned with both the reliability of the statement and “fundamental notions of trial fairness” (R. v. Oickle, 2000 SCC 38). The trialfairness branch of the rule incorporates the principle against self incrimination and the common law right to silence (R. v. Hebert, supra,;Oickle, supra., paras. 24 – 33; R. v. Whittle, (SCC), [1994] 2 SCR 914; and R. v. Paterson, 2017 SCC 15, at paras. 15 -16).

The right to silence is also a principle of fundamental justice, so is protected by s. 7 of the Charter (Hebert, supra.; Oickle, supra.;and, Whittle, supra.). [53] The focus of concern in this case is the trial fairness aspect of voluntariness, and more particularly the principle against self-incrimination and the pre-trial right to silence. Because of the overlap between this aspect of voluntariness and the right to silenceprotection in s. 7 of the Charter, I will consider them together.

However, I must keep in mind that the scope, burden, standard of proofand remedies are different (Oickle, supra., at para. 30). [54] Police are permitted to question people, but everyone is entitled to choose whether to answer their questions. The common

law and s. 7 of the Charter protect that right to choose and, importantly, protect the right of the individual to make an “informed” and“meaningful” choice whether to speak to the authorities or not (R. v. Singh, 2007 SCC 48, at para. 35; Hebert, supra., para. 67 - 80; and,Whittle, supra., para. 29). As was succinctly state by Watt, J. (as he then was), in R. v. Worral, [2002] O.J. No. 2711 (Ont. Sup. Ct. J.),at para. 106), “Voluntariness implies an awareness about what is at stake in speaking to persons in authority, or declining to assistthem.”. [55] The information and access to counsel guaranteed by s. 10(

a) and (

b) of the Charter and the standard police caution assist anaccused to make an informed and meaningful choice about whether to give up his right to remain silent.

The Police Caution and Relationship to Voluntariness [56] The standard police caution, in plain language, informs the suspect of his right to remain silent, including his jeopardy, hisright to say nothing and the consequences of speaking (Singh, supra., at para. 31). [57] The police do not have to caution everyone they meet or question. [58] In Worrall, (supra., at paras. 104 – 107), Watt J. (as he then was) held that an individual must be cautioned if there isinformation that would alert “a reasonably competent investigator” to the “realistic prospect” that the individual was associated with acrime. [59] In Singh, Charron, J., writing for the majority, quoted with approval the advice provided by René Marin (Admissibility ofStatements (9th ed. (loose-leaf)), at pp. 2-24.2 and 2-24.3, cited in Singh, supra., at para. 32): The warning should be given when there are reasonable grounds to suspect that the person being interviewed has committed an offence.An easy yardstick to determine when the warning should be given is for a police officer to consider the question of what he or she woulddo if the person attempted to leave the questioning room or leave the presence of the officer where a communication or exchange istaking place.

If the answer is arrest (or detain) the person, then the warning should be given. [60] Charron, J. went on to say that “even if the suspect has not formally been arrested and is not obviously under detention, policeofficers are well advised to give the police caution in the circumstances described by Marin” (Singh, supra., at para. 33). [61] The “reasonable grounds to suspect” standard has been described by the Supreme Court of Canada in multiple decisions(including, R. v. Chehil, 2013 SCC 49; R. v. Kang-Brown, 2008 SCC 18; and, R. v.

Mann,supra.). [62] It is more than mere suspicion and less than reasonable grounds to believe (Kang-Brown, supra., at para. 75). Suspicion “isan expectation that the targeted individual is possibly engaged in some criminal activity” (Kang-Brown, supra., at para. 75). Reasonablesuspicion is more because it is grounded in objectively discernable facts (Chehil, supra., at para. 29).

It is less than “reasonable groundsto believe” because it requires a “reasonable possibility, rather than probability of a crime” (Chehil, supra., at para. 27, emphasisadded). [63] To ground a reasonable suspicion, the facts must be indicative of the possibility of criminal behaviour, rather than a“generalized” suspicion (Chehil, supra., at para. 30). The Court in Mann spoke of the need for a reasonable suspicion that an individualis connected to a “particular crime” (supra., at para. 45).

However, that does not require officers to “point to a specific ongoing crime”,identify the “precise illegal substance being searched for”, or to “pinpoint the crime with absolute precision” (R. v. Nesbeth, 2008 ONCA579, at para. 18, leave to appeal refused, [2009] S.C.C.A. No. 10; and Chehil, supra., at paras. 35 and 37). In Nesbeth, the Courtconcluded it was enough that the officer had reasonable grounds to suspect that the individual was in possession of contraband (drugs orweapons or both) as opposed to being a mere trespasser (ibid, at para. 18).

In Chehil, the Court concluded it would be enough that thesuspicion was linked to the possession, traffic or production of drugs or drug-related contraband (supra., at para. 37). [64] There is general agreement that police are required to caution a “suspect” before questioning him (See: R. v. Smyth, (ON SC), [2006] O.J. No. 5227, at para. 81; R. v. Garnier, 2017 NSSC 338, at para. 81; R. v. Sandeson, 2017 NSSC 197;R. v. Merritt, 2016 ONSC 7009; R. v. Randall, [2003] O.J. No. 718 (S.C.J.); R. v. Wong, 2017 ONSC 1501; R. v. Morrison, [2000] O.J.No. 5733 (Sup. Ct.); and, R. v.

Oland, 2018 NBQB 255). [65] The officer’s training and experience, understanding of the term “suspect”, and his or her subjective view of whether theperson being questioned was a “suspect” can be relevant (R. v. Chehil, supra., at para. 47; and Garnier, supra., and the cases referencedtherein). However, “reasonable grounds to suspect” is a subjective/objective standard (Mann, supra.). It requires that a reasonableperson, in the position of the officer, would have suspected the individual was involved in the criminal activity being investigated (R. v.Chehil, supra., at paras. 22-37).

Justice Watt’s “reasonably competent investigator” is often used to inform the objective part of theanalysis (see for example: Garnier; supra., at para. 81; Wong, supra., at para. 67; and J.R., supra., at para. 19). [66] The cases use different formulations for the threshold of when a caution must be provided. There are, however, commonthemes that emerge. A caution may be required even where an individual is not detained or under arrest. A caution should be providedwhere there are reasonable grounds to suspect a criminal offence and that the individual being questioned is implicated in that offence.

Itis concerned with reasonably grounded possibilities not probabilities. The individual officer’s subjective belief should be assessed usinga “reasonably competent investigator” in the position of the officer. The failure to caution a suspect is not necessarily fatal to the voluntariness of a statement. The absence of a caution is an important factorin many cases, but all the surrounding circumstances must be considered (Singh, supra., at para. 31; R. v. Boudreau, (SCC), [1949] S.C.R. 262; R. v. Bottineau, 2011 ONCA 194, at para. 88; and, R. v. Pearson, 2017 ONCA 389, at para. 19).

As wasmade clear in Oickle (supra., at paras. 47 & 71), the voluntariness analysis is contextual, and all the relevant factors must be considered. Additional Facts Relevant to Analysis of Pontoon Boat Statements

[ 67 ] On June 9, 2018, at approximately 12:30 p.m., when Cpl. Campbell and Sgt. Glode went to the Halifax waterfront to conduct surveillance, they were looking for the pontoon boat.

They had information from Montreal and from CBSA in Halifax. [ 68 ] As a result of an email from a colleague in Montreal, they were aware that: • The author of the email believed the information might be relevant to “marine smuggling”; • On June 4 th , 2018, port security in Montreal had observed a RHIB (rigid hull inflatable boat) with 4 occupants, one with dive gear, around the Arica (a cargo vessel); • The RHIB was stopped and the diver questioned.

He said he was diving for algae; • The following day, video from the 4 th was reviewed and port security saw that the RHIB had gone behind the Arica, the diver had gone into the water and appeared to have retrieved an object, but the video was not clear; • The Arica was on its way to Halifax; • The diver was Matthew Ross Lambert who was from B.C. He was connected to 270 files there, believed to be associated with organized crime, and involved in cocaine trafficking and other criminality; and, • The author of the email did not believe the diver was diving for algae.

He thought it more likely that he was taking something out of the water that had been thrown overboard and less likely that he was putting something on the Arica. [ 69 ] They also had information from IO Delvalano about what had been observed by CBSA that morning: • the Arica had arrived in Halifax in the early morning of June 9 th ; • CBSA had conducted an inspection of the underwater hull of the Arica using a Remotely Operated Vehicle (ROV); • the ROV inspection was negative in the sense that nothing was attached to the hull but CBSA observers did note that the grate covering the starboard sea chest (an open chamber in the hull that allows sea water to enter for engine cooling purposes) was missing bolts and a wire; • bridge officers on the Arica had seen a pontoon boat with three occupants hovering near the Arica, they believed the boat may have contained diving gear, and, the presence of the pontoon boat was described as unusual for the area, weather and time of day, so CBSA officers felt it was very suspicious; • the pontoon boat had come closer to the Arica; • it had a maroon coloured top with a racing stripe; and, • as of approximately 11:42 a.m., the pontoon boat had four occupants who were looking at the Arica with binoculars. [ 70 ] At about 1:00 p.m., Cpl.

Campbell and Sgt. Glode located a pontoon boat which they believed to be the boat that had been around the Arica earlier (it matched the description and a photograph provided by IO Delvalano). The boat was unoccupied and contained diving gear and a hand-held radio. They took photographs of the boat and began surveillance. A short time later, Mr. Bailey and Mr. Seinauskas boarded the boat. The officers continued their surveillance and Cpl. Campbell took photographs of the men. Cpl. Campbell overheard Mr. Bailey tell someone on the phone that they were getting ready to leave and both officers saw Mr.

Seinauskas apparently untying the boat. The officers immediately went down to the lower dock where the pontoon boat was located to speak with the men. [ 71 ] The officers were each cross-examined at length on what was in their minds when they approached the men. They denied it was their intent to stop them. However, both acknowledged that they believed the men were leaving, wanted to speak with them and knew they would not be able to do that if they left.

Therefore, they chose that time to approach them. [ 72 ] Each officer’s subjective belief as to whether the men were “suspects” is relevant to my determination of whether they should have been cautioned and my ultimate decision on voluntariness. Neither Sgt. Glode nor Cpl. Campbell was asked to define the term “suspect” or about any relevant training or policies in that regard. Sgt. Glode denied the men were “suspects”. Cpl. Campbell acknowledged that prior to boarding the boat she viewed the men as “suspects of some sort”. [ 73 ] Cpl.

Campbell acknowledged that the information from Montreal made her aware that authorities in Montreal were suspicious of marine smuggling. She briefed Sgt. Mason about that information to try to get more resources because she was “suspicious about

what might happen in Halifax” in relation to the Arica. She also acknowledged that IO Delvalano had informed her that the activity around the Arica was suspicious or unusual. She agreed that this added to her suspicion that something criminal might be happening in relation to the Arica. She testified that at this point she wasn’t “sure” if the group in Halifax was the same group as had been seen in Montreal. She also acknowledged that information from IO Delvalano about the missing bolts and wire from the Arica’s sea chest added to her suspicion. When she advised Sgt. Mason of this, Sgt.

Mason authorized her and Sgt. Glode to conduct surveillance. She testified that at this point “we did not know if it was the same group of people that were seen in Montreal or if it was a totally different group here in Halifax and what they were actually doing”. She denied that she was investigating a potential drug importation. She went on to say, “So we did have suspicion.

It was suspicious activity and that’s what we were basing our actions on.” She was then asked, “It was suspicious activity about something that, at least, suggested pretty strongly to you that drugs may be involved?” and responded, “possibly could be involved, yes”. [ 74 ] Cpl. Campbell testified that when they located the pontoon boat, she believed it was the same one that had been around the Arica that morning and acknowledged that she wanted to get information from the men as part of her investigation. In cross- examination, by counsel for Mr. Seinauskas, the following exchange took place: Q. Okay.

And when you were standing on that lower deck before you got on the boat, you believed that these men may be involved in criminal activity, correct? A. I did not know for sure at that time. Q. No, I'm not asking you if you knew for sure. I'm asking if you believed that they may be involved in criminal activity. A. They may be involved, yes, I believed they may have been involved. Q. In criminal activity? A. Yes. [ 75 ] She testified that once on the boat, she was trying to determine whether the men were the same men who had been seen earlier by CBSA around the Arica. Near the end of the conversation, when Mr.

Bailey told the officers that one of their group was named “Matt Lambert”, she knew these were the same men who had been in Montreal. [ 76 ] Sgt. Glode agreed that he had concluded the behaviour reported by IO Delvalano was suspicious. His focus was to find the pontoon boat and talk to the people on it. He agreed that when he went looking for the boat, drug smuggling was something that “may be” in play and was in his mind, but testified that at that point there was nothing to base it on.

He acknowledged that when they found the boat, he believed it was the one that had been seen around the Arica and that the actions of the officers (surveillance and photographs etc.) were done for an investigational purpose. [ 77 ] He denied that the men were “suspects” when he saw them board the pontoon boat and said they were “of interest” in the investigation. It was suggested to him that “of interest” meant “that these were people who may potentially be involved – may have been involved in Montreal, correct?”. This was followed by this exchange: A. “I didn’t know if they were involved in Montreal then.”. Q.

No, I'm not saying that you knew. I'm asking you whether or not you thought they might be. A. No. Well, no. I didn't know, like, if it was two similar circumstances, are they the same people, I don't know. I didn't know at that time. Q. But most certainly these are the two people that you're going to want to get information from, correct? A. Yes, I want -- yeah, we wanted to speak to them. Q. Because what you want to find out is, as part of your investigation, are these two guys part of these four people that were in Montreal, right? A.

At some point, yes. [ 78 ] He acknowledged that he thought the two men might have been on the pontoon boat when it was around the Arica that

morning. He acknowledged that the circumstances involving the boat around the Arica in Halifax and Montreal were similar and agreed that this was suspicious. He also acknowledged that, as the conversation continued, he obtained sufficient information to suspect that Mr. Bailey and Mr. Seinauskas were the same people who had been in Montreal and he suspected this even before he heard the name “Matthew Lambert”. He maintained that he still did not have an “offence” and did not know if the activity in Montreal was related to the activity in Halifax. [ 79 ] What the officers told the men and when is central to my determination of whether, if there was a detention, there was a breach of s. 10(

a) of the Charter. The officers went down to the lower dock where the boat was, identified themselves as RCMP and showed their badges. Sgt. Glode believed he also told them he was with the federal serious and organized crime unit. Both testified that immediately after they introduced themselves, they provided the men with information about what they were investigating. [ 80 ] Sgt. Glode testified in direct examination that he told the men, “we had received a call from CBSA with suspicious activity around the MV Arica and wondered if we could talk to them for a few moments”. [ 81 ] Cpl.

Campbell testified that the men were told that “we had received a report of suspicious activity in the port” and “wished to talk to them”. In cross-examination, when counsel suggested that she had used the name “Arica”, she reiterated that she had told the men the complaint related to suspicious activity in the “port” or “harbour”. [ 82 ] Both officers testified that they asked the men if they could speak to them. In direct examination, both testified that Mr. Bailey invited them onboard. However, in cross-examination, Cpl.

Campbell was confronted with her notes where she had recorded that she “requested to board and chat” and “the second male gave permission”. She eventually agreed that her notes were probably more accurate than her recollection and adopted them. Sgt. Glode maintained that neither he nor Cpl. Campbell asked to board the boat. I find as a fact that they asked to board the boat and were given permission rather than being invited onboard without request. On this point, Cpl. Campbell’s recollection, after being refreshed by her contemporaneous notes, is more reliable than Sgt. Glode’s.

I say this because she had a reasonably contemporaneous note about the dialogue. [ 83 ] When the request to board the boat was made, the officers were standing on a lower dock which was essentially at the same level as the boat, meaning that a person standing on the dock would be at approximate eye level with a person on the boat. The officers could have conversed with the men on the boat without boarding the boat, but instead, chose to ask to board. [ 84 ] Neither officer was in uniform and neither was carrying a visible firearm, although Cpl. Campbell had hers with her but concealed.

The area around the boat was busy with a lot of pedestrians. With Mr. Bailey’s consent, the officers boarded the boat and sat. The boat is a relatively small, open boat with a canopy, seats and one entrance. Sgt. Glode sat near the entrance but not blocking it. [ 85 ] There is no evidence that either officer raised their voice. Both testified that Mr. Bailey was friendly and talkative and willingly provided information with very little questioning. Neither officer was recording the conversation or making contemporaneous notes.

Not surprisingly, their evidence about the sequence and specific content of the conversation is not always consistent with each other. [ 86 ] In her direct examination, Cpl. Campbell testified that: • After they were all seated on the boat, Sgt. Glode asked them their names and for ID, which was produced. • Sgt. Glode asked if he could photograph their ID, they agreed, and he did; • Mr. Bailey produced a business card and started talking about his Ocean Plastic Alliance project; • Mr.

Bailey volunteered a great deal of information about ocean pollution and the work the organization was doing, including that they were travelling around taking algae samples; • Mr. Sienauskas was quiet throughout. When Mr. Bailey was describing Ocean Alliance, Sgt. Glode asked him what his role was, Mr. Bailey started to answer for him, Sgt. Glode asked him if he could speak English, he said he could and Sgt. Glode told Mr. Bailey to let him answer himself. Mr. Seinauskas said he was the computer guy. Cpl. Campbell recalled that Mr.

Sienauskas spoke with a heavy accent, so he was asked where he was from, he said Lithuania and confirmed he was a Canadian citizen; • While Mr. Bailey was talking about his business, he said he was in Halifax to collect algae and said they used traps; • Sgt. Glode asked to see a trap and was told that the traps would not arrive until Monday; • Sgt. Glode asked what they were doing until the traps arrived and Mr. Bailey said they were diving to find good places to put the traps;

• After Mr. Bailey said the traps weren’t coming until Monday, he said there were four people in their group and the two others were diving at Black Rock Beach and they were on their way to meet them; • Mr. Bailey said he wasn’t sure if they would go over to get their friends or their friends would swim back; • Later, Mr. Bailey said they had been diving in Montreal port three days earlier but the tides were too strong, so they decided to come to Halifax and their friends had rented a black, Cadillac Escalade, with Quebec plates; • It was at this point that Mr.

Bailey was told that their boat matched the description of a boat that had been involved in suspicious activity round a vessel at Halterm that morning and Mr. Bailey said they’d rented the boat; • Mr. Bailey said he and his friend had driven, while “Matt” flew; • Mr. Bailey said they were staying at the Future Inn Hotel in Bedford by Costco; • After Mr. Bailey referred to his friend “Matt”, Cpl.

Campbell asked who the other two were and he said “Matt” and “Rick”; • She asked what their last names were and he said “Matt Lambert” and “Rick Avalaro”, but said he didn’t know how to pronounce it because it was Spanish; • At this point Cpl. Campbell recognized the name “Matt Lambert” as the name given in Montreal so knew it was the same group; • She excused herself from the boat and went to call CBSA who were on the Arica to alert them to the fact that there were divers in the water; • When she returned, Sgt. Glode was off the boat, they thanked the men and left. [ 87 ] In cross-examination, Cpl.

Campbell testified that: • She asked no questions other than general conversation questions and related to ocean plastics; • Sgt. Glode asked some questions; • After Mr. Bailey said that they were planning to go meet the others, either she or Sgt. Glode asked where they were; and, • She left the boat to make the call to the CBSA because she thought it was not polite to take out her phone and make a call in front of people, not because she wanted to keep the call hidden or private from the men. [ 88 ] Sgt.

Glode’s direct evidence about the sequence of the conversation was more difficult to follow: • When they first boarded the boat, he again told Mr. Bailey why they were there; • He asked for identification which was produced and photographed;

• He asked for an operator’s licence for the boat which was produced and photographed; • Mr. Bailey started talking about Ocean Plastics and provided a lot of detail; • Mr. Bailey told them they were in Halifax setting algae traps; • After Mr. Bailey stopped talking about the business, Sgt. Glode asked Mr. Seinauskas what he did and he said he was a computer programmer; • When Mr. Bailey was talking about his business, he said they were going around setting traps to collect algae, Sgt. Glode asked to see one and Mr. Bailey said they were arriving on Monday; • Sgt.

Glode then asked how they were setting traps if they didn’t have any and Mr. Bailey said they were scouting for locations; • Mr. Bailey said they had been in Montreal the week prior and set some traps there, he mentioned that the current there had been too strong so they came to Halifax; • Mr. Bailey said he and Dangis had driven to Halifax in a rented Cadillac Escalade the others flew; • Mr. Bailey volunteered that they were staying at the Future Inn; • Sgt. Glode told him that CBSA had seen four people on a boat and asked him where the other two were; • Mr.

Bailey said that “Matt” and “Alavaro” were diving at Black Rock Beach and Sgt. Glode asked where that was; • Sgt. Glode asked them if they had dive flags and Mr. Bailey said “no”; • Mr. Bailey said they had seen the ROV around the Arica that morning; • Mr.

Bailey was asked if they had to go pick up the other guys who were diving at Black Rock, he said he didn’t know, he was asked how they would find out, he said they would probably call them, he was asked how they would do that if the others were in the water and he said he didn’t know; • Once they heard that there was a diver in the water at Black Rock Beach, Cpl. Campbell left to call CBSA to tell them; • Sgt. Glode also left the boat and waited around on the floating dock for her to return; and, • Once Cpl. Campbell returned, they asked who “Matt” was and Mr.

Bailey said “Lambert” and the officers then left. [ 89 ] Some parts of the conversation are particularly significant to the issues I have to decide. Sgt. Glode testified that when they first boarded the boat, before asking for identification, he “again informed them that CBSA had called us talking about being in close proximity to the Arica or they felt was suspicious and we just wanted to talk to them for a few minutes”. Later in direct examination, he

said “when we first went onboard, again I explained that I had received a call from – or Sherry had received a call from CBSA and we wanted to talk to them”. Cpl. Campbell did not refer to this in her testimony. When asked in direct examination to describe what next happened after they were seated on the boat, she said “We asked for their identification”. [ 90 ] Both officers testified that very early in the conversation, Mr. Bailey advised them that he was in Halifax diving for algae. [ 91 ] Cpl.

Campbell testified that, at some point during the discussion, the officers told the men that their boat matched the description of a boat that had been involved in suspicious activity near a vessel in the harbour at Halterm terminal. Sgt. Glode did not specifically mention this, but did testify that, during the conversation, the men were told that CBSA had observed four people in a boat. [ 92 ] Both officers testified that hearing the name “Lambert” was significant because it confirmed these were the same men who had been in Montreal. However, their evidence is inconsistent on when they heard this. Cpl.

Campbell said she heard it at the end of the conversation, and this prompted her to leave the boat to call CBSA. Sgt. Glode testified that Cpl. Campbell left the boat because they heard there was a diver in the water at Black Rock Beach and they did not hear the name “Lambert” until she returned. [ 93 ] Both officers testified that Mr. Bailey provided virtually all the information without questions from them. Sgt. Glode recalled asking for ID, if he could photograph the ID, if they could show him an algae trap, what Mr.

Seinauskas’ role was, where their friends were, whether they had dive flags, if they were going to pick up their friends, how they would find out if they had to pick them up, how he would call their friends if they were diving, and either he or Cpl. Campbell asked for Matt’s last name. In cross-examination, Sgt. Glode acknowledged that he could not recall all the questions he had asked and may have asked more. [ 94 ] I believe that more questions were asked than the officers recall.

It simply does not accord with common experience that either the volume of information or the specifics would be provided in the course of a relatively brief conversation, in the absence of questions.

First, the conversation lasted less than 25 minutes and by the end of it, the officers had learned virtually everything they wanted to know from the encounter (that the men had been near the Arica, had been in Montreal, had two associates, the names of their associates, the colour, make, model of their vehicle, the fact that it had Quebec plates, the name and location of their hotel, where their associates were and what they were doing). Second, some of the specific information is not the kind of information that would typically be provided without a question. For example, Cpl. Campbell testified that Mr.

Bailey said his friends were driving “a black, Cadillac Escalade with Quebec plates”. In normal conversation, a person might say they had rented an SUV in Montreal, but would not provide the colour, make, model and advise that the vehicle had “Quebec plates”, in the absence of questions. [ 95 ] It is not clear how long the officers were on the boat. Sgt. Glode testified that it was approximately 25 minutes. He did not note the time the encounter began but testified that, according to his notes, they left the dock area at 1:50 p.m. This would have been after Cpl. Campbell’s call. Cpl.

Campbell testified that they were on the boat for 10 - 15 minutes, however, her notes indicate that they identified themselves as police at 1:25 p.m. and she left the boat to make the call at 1:33 p.m. (only 8 minutes). The Crown acknowledged that, given the evidence as to what transpired on the boat, the actual time on the boat is probably closer to Sgt. Glode’s estimate and I agree. It is impossible to be precise about how long they were on the boat, but it is reasonable to say it would have been at least 15 minutes. [ 96 ] When Cpl. Campbell left the boat to make a call, she walked away from the boat. Sgt.

Glode testified he left the boat when Cpl. Campbell did, but remained near it on the lower dock. Both testified that they did not board the boat again after the call. According to Cpl. Campbell, no further information was obtained after she came back from making the call. According to Sgt. Glode, a further question was asked, and an important piece of information received after her return. Application of the Principles to Pontoon Boat Statements

a) Detention [ 97 ] The defence argues that Mr. Bailey and Mr. Seinauskas were suspects in a drug importation investigation, they were stopped from departing the dock and that detention continued while the police were on the boat. They argue that the first and second Grant factors strongly support a finding that a reasonable person would have felt compelled to remain and answer questions. The Crown argues that when the encounter began, police were making general inquiries only.

They were specifically interested in the boat in relation to suspicious activity, but the men were not yet suspects and the suspicious circumstances were not yet a specific crime. The Crown further argues that the encounter began with Mr. Bailey either inviting or giving permission to the police to come on board to chat, continued in a similar consensual vein and that Mr. Bailey made a conscious choice to speak with police because he was eager to provide them with an innocent explanation for their presence. Factor 1 - Circumstances of the Encounter [ 98 ] From the perspective of Mr. Bailey and Mr.

Seinauskas, the encounter began as they were preparing to untie their boat and depart the dock. The officers approached, identified themselves as RCMP with the “federal serious and organized crime” unit, showed their badges and asked if they could come on board for a chat. That caused the men to change their mind about leaving, but does not, in and of itself, create a detention. At that point, they were told that the police were investigating suspicious activity on the waterfront and were asked for permission to board. At that time, the officers were still on the dock.

A reasonable person would believe the police were making general inquiries regarding an occurrence and would have felt they had the choice to decline the request. However, once on board the boat, the tone of the interaction changed. The men were asked to produce identification and that identification was photographed. Mr. Bailey was also asked if he had a pleasure boat operator’s card (which he was legally required to have). Mr. Bailey started to tell them about “Oceans Plastics” and diving for algae. He was asked if he had dive flags (which he was legally required to have).

Once the police asked for documentary proof of their identification and took photographs of those documents, most reasonable people would start to feel that this was not just a general inquiry. As the interaction continued, both officers were asking questions. Those questions started to become challenging (how are you collecting algae without traps?) and focussed (how many are in your group? Where are the others? etc.). [ 99 ] As I have said, the officers’ view of the situation is only relevant to the extent that it was reflected in their language or

behaviour and was capable of being perceived by Mr. Bailey and Mr. Seinauskas. To the extent that it is relevant, when I examine the encounter from the police perspective, I have no hesitancy in concluding that this was a focussed investigation - possible drug smuggling or importing involving the Arica. I am also satisfied that Mr. Bailey and Mr. Seinauskas were singled out in that investigation from the time the officers approached the boat believing it had been around the Arica and suspecting the men were implicated, at least in Halifax.

At that time, they may not have suspected the men were also involved in Montreal. However, early in the conversation, the officers learned that the men were diving and collecting algae. This was exactly what the men in Montreal had told port security. At that time, the officers must have suspected that these men were either the same men who had been in Montreal or were connected to them.

At that time, their investigation and their questions became even more focussed. [ 100 ] Given the officers’ request to board the boat, the request and photographing of ID and the questions asked, I am satisfied that a reasonable person in the circumstances of Mr. Bailey and Mr. Sienauskas would believe the police were “singling” them out “for focussed investigation” as that term is used in the first Grant factor.

Factor 2 - The Nature of the Police Conduct [ 101 ] The second factor identified in Grant is the nature of the police conduct, including the language used, the use of physical contact, the place where the interaction occurred, the presence of others, and the duration of the encounter. [ 102 ] In this case, the police showed their badges and identified themselves as RCMP and Sgt. Glode probably identified himself as being with the “federal serious and organized crime” unit. There was nothing improper in that and the officers denied that that they did it for the purpose of asserting control or authority.

However, regardless of their intent, a police officer is normally perceived as a person with authority and the language “federal serious and organized crime” would have had an additional coercive or intimidating impact on a reasonable person. [ 103 ] The police asked for permission to board the boat. This would cause a reasonable person to believe they had a choice and detracts from a finding of psychological restraint. However, immediately upon boarding, the men were asked for proof of their identity and Mr. Bailey was asked if he had a pleasure boat operator’s card.

Boating is a regulated activity and people operating pleasure craft are required to have a card ( Competency of Operators of Pleasure Craft Regulations , under the Canada Shipping Act , 2001). As the conversation continued, the police also asked if the men had dive flags. There is a legal requirement when diving from a boat to carry and display warning flags to let other boaters know when there is a diver in the water. This would not be dissimilar from an officer asking the driver of a motor vehicle to produce a licence or insurance.

It would cause a reasonable person to believe he or she had a legal obligation to remain and respond. [ 104 ] Relatively early in the conversation, Sgt. Glode directed Mr. Bailey to allow Mr. Seinauskas to answer for himself. The Crown argues that this is relatively innocuous, and the same kind of comment might be made in any social situation where one person was dominating a conversation. This submission does not take account of the reality that this was not a dinner party.

From the perspective of the two men, two police officers were on their boat, they had already been asked for identification, for proof of operator’s licence (both of which had been photographed), and queried about whether they had dive flags. A reasonable person in Mr. Bailey’s position would have perceived that comment from Sgt. Glode as a direction to stop speaking and a reasonable person in Mr. Seinauskas’ position would have perceived it as a direction to speak. There is evidence to support that view in that Mr. Seinauskas, who had been silent up to that point and was silent after, answered Sgt.

Glode’s question and the follow up question about where he was from. [ 105 ] The encounter took place in an area that was visible to the public at midday when there were a lot of people around. I accept that this would give a citizen comfort that nothing untoward would happen. However, more specifically, the encounter took place on board Mr. Bailey and Mr. Seinauskas’ rental boat. Police asked to board the boat to speak to them when they could easily have had a conversation from the lower dock without boarding. Once police were on the boat, their presence created a practical difficulty for Mr. Bailey and Mr.

Seinauskas if they wished to leave the encounter; they either had to ask the police to leave the boat or leave it themselves. Asking the police to leave would have required knowledge that they had the right to do so and a level of assertiveness beyond what would be required during an interaction on the street or if the police had stayed on the dock to speak with them. Because of the position of Sgt. Glode near the exit, anyone wishing to leave the boat would have had to pass him.

I am not persuaded that he took that seat for any strategic or tactical advantage, but that position would have had some, probably slight, psychological impact on a reasonable person. [ 106 ] There is no evidence of raised voices or physical contact, and, according to the officers, the conversation continued in a very friendly manner with Mr. Bailey chatting at length about his business and providing information voluntarily. I accept that, at the beginning, Mr. Bailey was forthcoming about “Oceans Plastics” and there may have been an atmosphere of consent and conversation.

However, as the encounter progressed, it took on the character of an interrogation with police asserting control by telling Mr. Bailey to let Mr. Seinauskas answer his own questions and asking questions that were more invasive, pointed and directed at the focus of their suspicion. [ 107 ] Even if the encounter was only eight minutes long (Cpl. Campbell’s notes), it was relatively long compared to other cases. For example, in Grant, the encounter was minutes and in Suberu , it was a minute or less.

The reality though is that the officers were probably on the boat for 15 - 25 minutes which is significantly longer than the encounters in those cases. Factor 3 - Characteristics of the Accused [ 108 ] I am not aware of any characteristics of the Applicants that would cause them to be more psychologically vulnerable than others. Conclusion on Detention [ 109 ] The Supreme Court has acknowledged the reality that police may not always know at the beginning of an encounter that there is an offence or that the person they are speaking with is potentially implicated and at risk for self-incrimination.

Police do not have to abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a

crime. Nor does s. 10 require that the police advise everyone at the outset of any encounter that they have no obligation to speak to them and are entitled to legal counsel.” ( Grant, supra., at para. 38). However, police powers have limits and police tactics may be “coercive enough to effectively remove the individual's choice to walk away from the police.” ( Grant, supra., at para. 39). Where this happens, there is a risk that the person may reasonably feel compelled to incriminate himself or herself.

The police must be mindful that, depending on how they act and what they say, the point may be reached where a reasonable person, in the position of that individual, would conclude he or she is not free to choose to walk away or decline to answer questions ( Grant, supra., at para. 41). In situations where the police are uncertain about whether “their conduct is having a coercive effect on the individual, it is open to them to inform the subject in unambiguous terms that he or she is under no obligation to answer questions and is free to go .” ( Grant, supra., at para. 32). Sgt. Glode and Cpl.

Campbell could easily have done this. They did not. The result is that I have to decide whether I’m satisfied that they were constitutionally required to. [ 110 ] I have concluded that when Cpl. Campbell and Sgt. Glode approached the pontoon boat, they were conducting a specific criminal investigation, believed the boat was involved and had a suspicion that the two men were implicated in some way. They required further information, knew the men were leaving and that they would not be able to speak with them if they left. They singled Mr. Bailey and Mr.

Seinauskas out for focussed investigation, and I am satisfied that their conduct would cause a reasonable person in the position of Mr. Bailey and Mr. Seinauskas to believe that they had to remain and answer questions. [ 111 ] As such, I am satisfied that Mr. Bailey and Mr. Seinauskas were detained for Charter purposes and should have been advised of their right to counsel under s. 10(

b) of the Charter. That detention would have crystalized at the earliest when they were asked for proof of identification and at the latest when the officers directed Mr. Bailey to allow Mr. Seinauskas to answer for himself and began asking more probing questions. [ 112 ] In reaching that conclusion, I have taken into account that Mr. Bailey gave permission for the officers to board the boat and was initially forthcoming. However, in determining that they were psychologically detained, I have focussed particularly on the following: • Mr. Bailey and Mr.

Seinauskas were preparing to leave the dock when approached by police; • Police asked for and photographed their ID; • Police asked for and photographed Mr. Bailey’s pleasure boat operator’s card which imports an element of legal compulsion to co- operate, at least with that request; • Police asked if the men had dive flags (another legal obligation); • Police directed Mr. Bailey to allow Mr.

Seinauskas to answer for himself; • The police asked increasingly focussed questions about how many were in their group, where the others were, how they were going to meet, etc.; • My finding that more questions were asked than the officers recalled while testifying; • The interaction lasted for approximately 20 minutes; and, • The interaction took place on the Applicants’ boat which made it more difficult for them to leave.

b) Reasons for Detention - s. 10(

a) of the Charter [ 113 ] Because they were detained, Mr. Bailey and Mr. Seinauskas had a right, under s. 10(

a) of the Charter , to be advised of the reasons for their detention. I accept that Cpl. Campbell and Sgt. Glode did not appreciate that they were detaining Mr. Bailey and Mr. Seinauskas, so of course did not say to the men, “I am detaining you for ….”. They did, however, provide them with some information about what they were investigating.

Therefore, my task is to determine whether that information adequately informed them of their jeopardy such that, viewed reasonably in all the circumstances of the case, they could make informed choices about whether to exercise their right to remain silent (See for example: Roberts , supra. , at para. 78; Evans , supra., at para. 35 ; and R. v. Rodgerson, 2016 ONSC 6094 , para. 81 ). [ 114 ] The defence argues that the police knew they were investigating a possible drug importation using the Arica and told Mr. Bailey and Mr.

Seinauskas only that they were investigating a report of suspicious activity on the waterfront. They argue that this information did not inform them of their true jeopardy and did not allow them to make informed choices about whether to speak to authorities or ask for counsel. They further argue that the early requests by police for a boat operator’s licence and the questions about

dive flags would have contributed to a misunderstanding of the true nature of the inquiry and caused the men to underestimate their true jeopardy. [ 115 ] The Crown argues that s. 10(

a) was complied with because the information the police gave Mr. Bailey and Mr. Seinauskas essentially reflected the totality of their knowledge, that they were investigating suspicious activity on the waterfront. The Crown further argues that the Sgt. Glode’s reference to “the Arica” would have provided the men with important information and more information was provided relatively early in the conversation. Finally, the Crown argues that at the time of the interaction Mr. Bailey and Mr.

Seinauskas had the “informational advantage” so would have fully understood their jeopardy and there was no risk that the questions about dive flags and licences could have led to a misunderstanding. [ 116 ] I do not accept the Crown’s submission that the information the officers gave the men essentially reflected the totality of the information they had. However, the officers had no obligation to provide the men with all the information they had. Their obligation was to provide information that fairly reflected the matter under investigation so the men would know their jeopardy.

Both officers were experienced drug investigators and Sgt. Glode had previously been involved in the investigation of an offload. On the whole of the evidence, I find that when the officers approached the pontoon boat, they were investigating a suspected importation of contraband, possibly of drugs, involving the Arica.

They knew the circumstances in Halifax were similar to those in Montreal and both were suspicious, they knew one of the men in Montreal was associated to organized crime and drugs, they knew witnesses were reporting four men in Montreal and four men in Halifax, they knew there were signs of tampering on one of the Arica’s sea chests, and believed they had located the boat they were looking for within a relatively short time. They focussed on Mr. Bailey and Mr. Seinauskas because they were on the boat. They approached, questioned and detained the men in relation to their investigation.

They did not at any time tell the men that the investigation involved criminal activity, importation, smuggling or drugs. [ 117 ] Despite the absence of that specific information, I have looked at what the police did tell Mr. Bailey and Mr. Seinauskas to see if it adequately informed the men of the extent of their jeopardy. As I said, the officers’ recollection of specifically what was said differs. I accept that each officer might have a better recollection of what he or she said, than what the other officer said.

In my view, it is unlikely that both officers told the men what they were investigating prior to boarding the boat. It makes sense that each would have introduced themselves, but it doesn’t make sense that both would have explained why they were there. [ 118 ] I do not accept that Sgt. Glode used the name of the vessel, “the Arica”, before boarding the boat. Cpl. Campbell made no mention of that in her testimony and it is significant enough that I believe she would have mentioned it if she’d heard Sgt. Glode use it. She was not asked specifically about what Sgt.

Glode had said, but when it was suggested that she had referred to the “Arica”, she corrected counsel and did not volunteer that Sgt. Glode had said that. [ 119 ] According to Sgt. Glode, once on the boat, he again advised the men that the complaint related to suspicious activity around the Arica. Cpl. Campbell’s description of the sequence of events does not corroborate this. In her narrative, she described the first thing that happened when they were on the boat as Sgt. Glode’s request for identification.

According to her evidence, specific information about the report from CBSA was not provided until later in the conversation. [ 120 ] I prefer the evidence of Cpl. Campbell on this. Her evidence about the sequence of the conversation was much clearer than Sgt. Glode’s. His evidence about the order of the conversation was confusing and left me unsure of whether he recalled the sequence of the conversation. Further, her testimony about when the men were told further details of the complaint made sense. According to her, it flowed from something Mr. Bailey had said. If Sgt.

Glode had already provided this information, there would have been no need for her to repeat those details later. [ 121 ] According to Cpl. Campbell’s evidence, before the officers boarded the boat, the men were told the investigation related to “a report of suspicious activity in the port”. This essentially provided no information about the matter under investigation or the men’s jeopardy. The men did have some other information. They were told the officers were with the RCMP and I accept that Sgt. Glode probably told them they were with the “federal serious and organized crime” unit.

That information would seem inconsistent with an investigation of a minor infraction and might have informed the men that the matter was more serious. However, it says nothing about the specific matter under investigation. [ 122 ] Both officers testified that more information was provided during the interaction. It is not entirely clear when that information was provided. At some point, the men were informed that the investigation related to a report from “CBSA”. To a person who knew what the acronym “CBSA” meant and knew the mandate of that organization, that term might have conveyed valuable information.

However, I cannot assume that Mr. Bailey and Mr. Seinauskas had that knowledge. It also seems that, at some point, the men were told that the investigation concerned diving near the Arica (Sgt. Glode’s testimony) or near a vessel at Halterm (Cpl. Campbell’s testimony). That information came too late, after the detention had crystalized and after Mr. Bailey had given up his right to remain silent and provided important information.

In the absence of any other information, the men could reasonably have thought they were being questioned about violations of boating or diving regulations or safety concerns because they were too close to the Arica. The early request for an operator’s permit and the questions about dive flags would reasonably have supported that misunderstanding. [ 123 ] The Crown argues that the men had the “informational advantage” during the interaction so would have known their jeopardy.

I understand the Crown to essentially be arguing that since the men knew they were involved in importing drugs, they would have known that their jeopardy included that offence. If this is an informational advantage, it is the reality in most s. 10(

a) cases. The factually guilty detainee will almost always know more about the offence than the police. I am not aware of any case where knowledge based on factual guilt has been used to overcome deficits in the information provided by police to a detainee. Under s.10(a), it is the police who have the obligation to provide the detainee with information and the information the

section is primarily concerned with is the “reasons for detention”. A factually guilty detainee may have an informational advantage concerning the offence(

s) he has committed but the police have the informational advantage concerning their reasons for detaining him and that is the information they must provide. A detainee, even one who has committed an offence, is not required to guess the reasons for his detention based on the crime(

s) he may have committed. [ 124 ] The Crown’s argument in this regard is similar to reasoning that was rejected by Iacobucci, J., albeit in a different context, in R.

v. Borden, (SCC), [1994] 3 S.C.R. 145. In that case, the accused was under arrest for sexual assault and consented toprovide blood. The sample was used to inculpate hi

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