R v Lugela, 2023 ABCJ 176

In the Alberta Court of Justice Citation: R v Lugela, 2023 ABCJ 176 Date: 20230803 Docket: 220227987P1 Registry: Calgary Between: His Majesty the King - and - Phillipe Lugela Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.5 . By Court Order:

(1) Information that could identify ME shall not be published, broadcast, or transmitted in any way.

(2) No person shall publish, broadcast, or transmit in any way the contents of the publication ban application or the evidence, information or submissions at the hearing of the application. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Decision of the Honourable Justice P.J.

Mason INTRODUCTION [ 1 ] The Accused, Philippe Lugela was charged with a total of 21 offenses including one count of robbery, multiple counts of breach of release orders, drug trafficking and weapons charges from a series of events that took place over the course of two days in January 2021. Mr. Lugela has been in custody since his arrest. He pled not guilty, and the matter was set for trial. Preliminary applications were dealt with by this Court last year, and the trial was heard in May and June of this year. [ 2 ] Counsel for the Accused has argued that Mr. Lugela’s

section 10(

b) Charter rights had been violated by police conduct and

sought to have evidence, that police collected in a subsequent search warrant of Mr. Lugela’s residence, excluded from the trial proper. Counsel agreed to have a blended voir dire . The Crown called 13 witnesses in total, of which some were in the trial proper. Mr. Lugela called no evidence on the voir dire . [ 3 ] For the reasons set out below, the Court found that there was a breach of Mr. Lugela’s right to counsel under

section 10(

b) of the Charter of Rights and Freedoms (“the Charter ”) for the delay in allowing him to access counsel from 1831-1956 hours. However, after conducting a Grant analysis under section 24(2) of the Charter the Court was not persuaded to exclude the evidence gathered by the police in their search warrant of the Lugela residence. [ 4 ] The Court is indebted to Mr. Connor Sprague, student at law, for his assistance in the preparation of this judgement. FACTS [ 5 ] It was not disputed that Mr.

Lugela met with an individual, ME (the initials are used pursuant to the publication ban imposed before the trial began), in the parking lot of a school in Northeast Calgary at midnight and/or into the early morning hours of July 6, 2021. ME testified that he had attended the location to purchase a number of PS5 video game consoles. At that time, PS5’s were highly sought after items which were in short supply. As a result, they were being sold online by private sellers at much higher price than the retail price found through normal channels.

ME said he was trying to buy a number or the game consoles and acknowledged that he went into the transaction knowing that some of them might be stolen. [ 6 ] ME stated he recognized the person who approached his car in the parking lot as Mr. Lugela. They had attended the same high school a few years earlier. He went on to allege that Mr. Lugela had directed him to drive to different location to pick up the game consoles. During the drive, Mr. Lugela was alleged to have robbed ME of several thousand dollars with a handgun while they were in his car. Mr.

Lugela exited the vehicle at the second location and departed the scene in a separate vehicle. [ 7 ] After leaving the second location, ME reported the alleged robbery to the Calgary Police Service (CPS) through several phone calls on January 6. The CPS began an investigation. [ 8 ] As a result of the information they had, the CPS sought a search warrant for Mr. Lugela’s residence at 355 Coventry Road NE, Calgary AB. Mr. Lugela lived at that residence with his parents and several siblings. That search warrant was authorized on January 6, 2021.

The execution of that warrant was expected to take place on January 7, 2021. [ 9 ] Prior to the execution of that search warrant, the CPS were concerned about the Accused’s potential response to his arrest and the subsequent search of his home. The intention was to conduct the search at the residence shortly after Mr. Lugela was taken into custody there. That plan was interrupted by officers observing Mr. Lugela leaving the residence on the morning of January 7. [ 10 ] Accordingly, the tactical team (TAC) and a surveillance team (ALERT) were tasked to assist with the arrest of Mr. Lugela.

HAWC, the CPS helicopter, was also tasked to assist with covert mobile surveillance of Mr. Lugela. Mr. Lugela (and his family) were well known to the authorities. [ 11 ] The additional resources utilized by the CPS were considered necessary in the circumstances. At the relevant times, Mr. Lugela was being monitored by the Serious Habitual Offender Program (SHOP). SHOP was a specialized unit within the CPS designed to, as the name would suggest, deal with serious habitual offenders.

The individuals who were placed into the program were assessed by a multidisciplinary team to determine if they were suitable for the enhanced monitoring done by that group. [ 12 ] As a result of the investigation, and SHOP’s knowledge of Mr. Lugela and his family, it was determined that – once Mr. Lugela was arrested – he was to be denied access to counsel until such time as the search warrant team was in place and ready to search the Lugela residence. This was done, purportedly, for officer safety and to preserve any evidence that was located in the house. [ 13 ] An accurate chronology was important for the

section 10(

b) analysis. The following times on January 7, 2023, were relatively accurate and generally uncontested: 0917 Surveillance on the residence - Mr. Lugela unexpectedly left in Maxima. 0945 Start of covert mobile surveillance of Mr.

Lugela by ALERT and HAWC 1512 Arrested by TAC in Airdrie. 1515 Chartered and Cautioned by Constable Ball in Airdrie. 1515 Stated he wanted his lawyer, right now. 1545 Custody given to Constable Quinlan for transport to Calgary. 1559 Chartered and Cautioned by Constable Quinlan. 1601 Chartered and Cautioned by Constable Quinlan a second time. 1627 Transport to Calgary finished and booked into Arrest Processing (APU). 1815 Chartered and Cautioned by Detective Fleming. 1830 Detective Fleming was notified the Search Team was properly resourced.

1830 APU staff check on Mr. Lugela 1831 Detective Fleming notified APU that Mr. Lugela was “good to go.” 1900 Mr. Lugela communicated with Ms. Paul regarding the telephone 1900 CPS Execute search warrant. 1956 Mr. Lugela was given access to a telephone. [14] Based on this chronology, Mr. Lugela was unable to exercise his right to counsel in approximately four hours and 41 minutesbefore he was able to exercise his right to counsel. ISSUES [15] Was Mr. Lugela’s right to counsel, pursuant to

section 10(

b) of the Charter of Rights and Freedoms, violated by policeconduct on the day in question and, if so, what was the appropriate remedy for such a violation. LAW [16]

Section 10(

b) of the Charter states: Everyone has the right on arrest or detention … to retain and instruct counsel without delay and to be informed of that right. ANALYSIS [17] The application was brought by Mr. Lugela. Accordingly, he had the onus to prove a breach of his constitutional rights on thebalance of probabilities. Counsel for Mr. Lugela conceded that some of the delay in the right to access counsel was justified based on thespecific circumstances known to the police at the time.

That was a sensible concession on the facts available. [18] However, counsel took issue with how the police executed their duties during the delay and their overall attitude toward Mr.Lugela’s right to counsel. She argued that, when state conduct was assessed as a whole, Mr. Lugela’s right to counsel was breached bytheir actions and in the execution of their duties. [19] Crown counsel argued that Mr Lugela’s right to counsel was not breached by the delay in allowing him to exercise his rightbecause there were principled reasons for the delay.

This Court was urged not to play “Monday morning quarterback” with the officer’sdecisions – made in times of significant stress and resource shortage – which were made in good faith and executed to the best of theirability.

In the alternative, if there was a breach, the remedy of the exclusion of the evidence was excessive. [20] In R v Taylor, 2014 SCC 50 at paragraph 23, the Supreme Court said that the right to counsel imposed three corollaryobligations on the police: 1. to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legalaid and duty counsel; 2. if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right(except in urgent and dangerous circumstances); and3. to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases ofurgency or danger). [21] The Court went onto confirm that once a detainee has indicated a desire to exercise their right to retain and instruct counselwithout delay, the police “duty to facilitate access to a lawyer ... arises immediately” and includes allowing the detainee to immediatelyuse any available telephone for that purpose.

The Crown bears the onus of showing that any delay in doing so was “reasonable in thecircumstances.” This is so because “the detainee is in the control of the police and cannot exercise his right to counsel unless the policegive him a reasonable opportunity to do so”. [22] Taylor was following the well established case law set out in cases like R v Manninen (SCC) and R v BartleCanLII 64 (SCC). This was, and is, well settled law. [23] If, as is the case here, the Crown was seeking to justify a delay then whether that delay was reasonable is determined on acase by case basis (See R v Chang 2019 ABCA 315).

Such a determination will, necessarily, include concerns for officer or publicsafety, and reasonable limitations prescribed by law and justified under s. 1 of the Charter (See R v Suberu 2009 SCC 33). [24] In R v Yong 2020 ABQB 676 the Court summarized “further guidance as to why and when” delaying access to counsel will,or will not, be justified: Police must provide access to counsel at the earliest practical opportunity. Immediacy does not mean instantaneously: (R v Nelson2010 ABCA 349 at para. 17).

If police assert there were barriers to access, those barriers must be proven, not assumed: (R vTaylor, supra at paras 32-33)The extraordinary or exigent circumstance justification under 10(

b) is reserved for rare situations in which police have reasonable

grounds to suspect that delay is (

i) necessary to prevent imminent bodily harm or death to any person; and (ii) [reasonable]grounds to believe that evidence is present and that the delay is required to prevent the imminent loss or imminent destruction ofevidence (my emphasis): R v Tieu, 2016 ABQB 344 at para 62 (citing R v Lim, 2015 ABQB 273). These exceptional circumstances which justify the suspension of the right to counsel signify emergency or peril and they do notinclude tactical advantage or investigative convenience.

They include the prevention of imminent harm to police or other persons.They include the preservation of material items from imminent loss. And they include the necessity to protect the integrity of apolice investigation in progress if there is a real and present danger that the operation would be frustrated or compromised: R vArchambault, 2010 QCCQ 4710 at para 19, citing R v Manninen, supra, and R v Strachan, (SCC).Put another way, police are entitled to get a situation “under control” before providing an accused person the opportunity tocontact counsel in certain circumstances.

Typically, these have involved cases where the police have an ongoing investigation,involving high risk, volatile situations where the police have specific, identifiable reasons for concerns about the potential forviolence that would put the public or officers at risk (i.e. firearms) or a risk that evidence may disappear or be destroyed: R vPatterson, 2006 BCCA 24 at para 40.Even where these exceptional circumstances exist, the police must take reasonable steps to minimize the delay in granting accessto counsel: R v Rover, 2018 ONCA 745 at para 27.The police must actually have turned their mind to the specific circumstances of the case and be able to articulate reasonablegrounds to justify a delay in allowing an accused to speak to counsel: Rover at para 33.

A decision to delay access must not just have been the result of the implementation of an inflexible police practice or policy: R vRussell, 2020 ABCA 90 at para 45. [25] The factual construct here was undisputed. Mr. Lugela had been accused of robbery with a firearm in Calgary. He was wellknown to police. He was arrested, at the direction of SHOP, in a high risk take down by TAC officers with the assistance of ALERTsurveillance and HAWC air surveillance. He was arrested at 1512 in Airdrie a bedroom community located to the north of Calgary citylimits.

At 1515 hours he was chartered and cautioned, and he asserted his right to counsel. He was arrested with another individual whowas in possession of a firearm. Although the decision to deny him access to counsel was made before the arrest, it would beunderstandable that the circumstances of the arrest would serve to confirm the police fears about the propensity for violence associatedwith Mr. Lugela. [26] The police turned their mind to the specific circumstances and based on their knowledge of Mr.

Lugela, his family, and theirpast interactions with police, they decided that he should be denied access to counsel until such time as they could secure the residenceand begin the search of the premises. On the evidentiary basis this Court had before it, the police did have reasonable grounds to suspectthat the delay was necessary to prevent harm or death to officers and (potentially) the public at large.

Further, the CPS had reasonablegrounds to believe that evidence was present in the Lugela residence, and the delay was required to prevent imminent loss or destructionof that evidence. [27] In addition to those specific circumstances, there was also the factual backdrop in play of which this Court has taken judicialnotice. In January 2021 the world was gripped by the COVID pandemic.

All government institutions were struggling with the effects ofmandated lockdowns put in place based on the advice of public health officials to mitigate the health threats of a relatively unknown,rapidly changing virus that had serious implications for large swaths of the population. This placed a significant burden on an alreadyburdened CPS. Throughout the testimony of the police in this case there was a consistent refrain of waiting for resources to becomeavailable. This lack of resources was exacerbated by the COVID pandemic. There was no doubt that CPS viewed Mr. Lugela as adanger.

They had already invested significant and specific, special resources in their surveillance, and arrest of Mr. Lugela. Now theyneeded further frontline resources to be made available from other sectors within the city to carry out the search warrant.

This could notbe the only significant, on-going, draw on resources in the city and its surrounding areas and those resources had to be allocated on as-needed basis. [28] Based on all of these facts and circumstances the delay, from the arrest at 1512 to the notification that the search warrant teamhad sufficient resources, and the decision by Detective Fleming that Mr. Lugela was “good to go” at 1831, was not one which could besaid to be a breach of Mr. Lugela’s right to counsel. Counsel for Mr. Lugela conceded that some of the time was reasonable.

On anobjective basis, all of this time of delay was reasonable. [29] The time frame that caused this Court concern came from 1831-1956, a total of 85 minutes. Detective Fleming was at APU tooversee the mechanics of keeping Mr. Lugela in custody, without access to counsel, while waiting for the resources to become availableto allow the search warrant of the residence safely, and to protect the evidence from disturbance or destruction. That task wascompleted, for all intents and purposes, by 1831. By this time Mr. Lugela had been in custody for more than three hours.

It should havebeen apparent to Detective Fleming that Mr. Lugela should be allowed access to the resources for contacting counsel as soon as possible. [30] Again, given the evidence before the Court, APU was operating under serious and significant burdens. The COVID healthprotocols were in place, and this was a significant factor adding to the burdens the staff faced on a daily basis. Ms. Paul testified ingeneral about the necessary restrictions on moving people around the facility that would have inevitably affected all persons in custodythere.

From Constable Quinlan, we had some specific evidence of the effect on his course of conduct when booking Mr. Lugela intoAPU. From those two sources the Court was satisfied that the APU was operating under rigid protocols that negatively affected thestaff’s ability to process Mr. Lugela and get him to a place where he could access counsel. [31] Mr. Lugela’s chronological record of progress inside APU was documented in sparse terms in the Detention Log marked asExhibit VD 13.

From that document the Court was also satisfied that, whatever process he had to go through to be medically cleared andplaced in a holding cell, the COVID health protocols did not play any significant factor in the delay of his access to counsel up to 1831because he was denied access to counsel for different reasons. [32] Ms. Paul’s evidence was that they were operating on a COVID protocol where the detainees were being checked every 15minutes. The Detention Log corroborated Ms. Paul’s evidence. As noted, from 1831, the evidence before the Court was down togeneral practices and not specific evidence as to Mr.

Lugela’s situation beyond the Detention Log. There were several entries that in thatdocument that should be considered in this analysis. They were as follows:

1815 detainee check – Detective Fleming was chartering and cautioning Mr. Lugela 1830 detainee check – close in time to Detective Fleming’s notation “good to go” 1836 meal/drink – by Melen, L the entry speaks for itself. 1841 detainee movement – by Melen, L: unclear entry, no evidence was adduced on it. 1845 detainee check – by Funk, M 1900 detainee check – Paul, J: discussed in her testimony 1915 detainee check – by Hirsch, J 1915 detainee check – by St. Blancat, A 1930 detainee check – by St.

Blancat, 1930 detainee check – by Hirsch, J 1945 detainee check – by Hirsch, J 1956 telephone use – Paul, J [ 33 ] As per Nelson, supra , police must provide access to counsel at the earliest practical opportunity. As noted above, immediacy does not mean instantaneously. [ 34 ] The entry immediately after the 1831 start point was the delivery of food by staff member Melen at 1836 and the detainee movement by the same staff member at 1841. These movements were, at face value, benign.

Suffice it to say that food service and detainee movement would be complicated by health protocols designed to minimize contact between detainees and/or staff. In general, the delays occasioned by food and detainee movement would account for some of the remaining time. While it might not be ideal to prioritize food and detainee movement over access to counsel, given the restrictions in place, such an outcome was more understandable and, on its own, would not be sufficient to find a breach. [ 35 ] There was a detainee check at 1845. This could be viewed as a missed opportunity to get Mr.

Lugela access to counsel. [ 36 ] Ms. Paul testified about her involvement with Mr. Lugela at 1900 and his desire to have access to a telephone. The subsequent entries of multiple detainee checks were more concerning. The double entries at 1915 and 1930 by two individuals appeared to be one check done by two officers. Both officers appeared to record their checks, perhaps to maintain a full record of contact. The additional entry at 1945 was also concerning Nonetheless it did seem that there might well be opportunities to put Mr. Lugela into a telephone room well in advance of 1956. [ 37 ] From Ms.

Paul’s evidence about the general setup, the Court was satisfied that there would have been some delay getting telephone access to all detainees (including Mr. Lugela) as smoothly as one would expect without health protocols. There were limited telephones and access was segregated so that asymptomatic detainees used one set of telephones while symptomatic detainees would only access a different telephone.

Her evidence also showed there were instances where things could grind to a halt when additional cleaning had to be done as a result of an unexpected exposure from someone deemed to be symptomatic after they had used asymptomatic areas. None of her evidence was specific to Mr. Lugela’s situation on the day. [ 38 ] As per Taylor, supra , where the police are asserting barriers to access, those barriers must be proven and not assumed. Here there was an absence of evidence about how the protocols directly impacted Mr. Lugela. Whilst the Court was prepared to accept some delay based on the general evidence of Ms.

Paul, there was not sufficient evidence to prove barriers that account for the full delay. [ 39 ] Additionally, as per Rover supra , where exceptional circumstances exist, the police must take reasonable steps to minimize the delay in granting access to counsel.

The Court was prepared to accept that, in all the circumstances, police took reasonable steps to minimize the delay up to 1831. [ 40 ] After that time the evidence does not support the conclusion that the police and specifically Detective Fleming, who was tasked with the execution of the arrest and made the decision to deny access to counsel, took reasonable steps to minimize the delay. He said he was relying on APU staff to do their job. In normal circumstances this might not be problematic.

However, where police have delayed access to counsel for a lengthy period of time, there should be additional steps taken to ensure that an accused was afforded the opportunity to exercise his right to counsel as a priority. [ 41 ] There was evidence from Ms. Paul that the APU worked on a “first come, first served” basis. There was no evidence that Mr. Lugela was subjected to that process after 1831. In fact, the delay of 85 minutes suggested he was not allowed to use the phone ahead of those who arrived at the APU facility after him but before he was “good to go”.

The absence of evidence of what specifically happened to Mr. Lugela and the reasons for the 85-minute delay was such that the Court could only conclude that his right to counsel was breached. GRANT ANALYSIS [ 42 ] As a result of the finding of a breach, the Court was required to engage in the section 24(2) of the Charter analysis set forth in R v Grant 2009 SCC 32 . The governing framework for evidence exclusion involved “three avenues of inquiry…each rooted in the

public interests engaged by s. 24(2), viewed in a long-term, forward looking and societal perspective”: 1. the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious statemisconduct)2. the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rightscount for little), and3. society's interest in the adjudication of the case on its merits. [43] Laskin JA, writing for the Ontario Court of Appeal in R v Pino 2016 ONCA 389 at para 72, neatly summarized the legalframework applicable to whether evidence was obtained in a manner that breached an accused’s Charter rights: The approach should be generous, consistent with the purpose of s. 24(2).The court should consider the entire “chain of events” between the accused and the police.The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct.The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these threeconnections.But the connection cannot be either too tenuous or too remote. [44] The SCC endorsed and followed this framework in R v Tim 2022 SCC 12 and R v Beaver 2022 SCC 54. [45] In this case the appropriate connections to consider must be temporal and contextual rather than causal.

The search itself wasnot the impugned activity. Counsel for Mr.

Lugela conceded that the search was not conducted in a Charter-infringing manner. [46] A “temporal” connection means “occurring close in time … part of a continuum straddling [the] arrest,” according to theCourt in R v Pino supra. [47] It may exist even when the breach happened after the evidence was obtained as set out in the case of R v Chowdury 2019ABPC 313. [48] Close temporal proximity often suffices to prove that the evidence was “obtained in a manner that infringed the Charter.”This is a case-by-case factual question for the application judge (See R v Strachan (SCC)). [49] A “contextual” connection means “pertaining to the surroundings or situation in which something happens” and thus existsbetween a Charter breach and a search surrounding or arising out of an arrest per R v Pino, supra at paragraph 74. [50] The case law supported the conclusion that the evidence (although not the search itself) was obtained in a Charter-infringingmanner.

The Seriousness of the Charter-Infringing Conduct [51] The more serious the Charter-infringing police conduct, the greater the need for courts to distance themselves from it byexcluding evidence linked to it. [52] As the Supreme Court stated in R v McColman 2023 SCC 8, all Charter-infringing conduct sits somewhere on a spectrumranging from minor, fleeting, technical breaches committed in good faith, to flagrant, deliberate breaches committed in bad faith. [53] The Ontario Court of Appeal in R v McSweeney 2020 ONCA 2 at paragraph 78 said this spectrum was described as wide andas a “continuum of police misconduct.” An earlier case from that same Court, R v Ramage 2010 ONCA 488 at paragraph 48 said thespectrum captured both the conduct itself and the officer’s intent.

Indeed, the seriousness of the conduct was dependent on “both whatthe police did and their attitude when they did it.” [54] Many factors affect the seriousness of Charter-infringing police conduct. The following are relevant in this case: 1. The clarity or ambiguity of the law around the breach resulting from the conduct.2. The extent of the officer’s culpability or “mental fault level” with regard to the conduct.3. The number of Charter breaches arising from the conduct.4. Whether the evidence could have been obtained absent the Charter-infringing conduct.

Ambiguity of the Law [55] As set out above, this is a well settled area of Charter jurisprudence. It has been long standing and well known to police. InR v Harrison 2009 SCC 34, the Supreme Court made it known that clear breaches of well-established Charter standards which havestood for a significant amount of time increase the seriousness of the police misconduct and the need for exclusion. Such breaches areespecially harmful to the justice system’s reputation, even if the breaches were not deliberate.

Officer Culpability [56] However, in this case, the officer was relying on established practices of the APU staff during the pandemic. Given theincreased complexity of the systems due to the health protocols, the officer’s reliance on APU doing the correct thing, in all thecircumstances, was less egregious than might otherwise be the case. Experienced officers were now faced with entirely different

systems that were being dramatically altered at the direction of public health officers. It would be easy to forget just how disrupted the systems were given that we are more than two and a half years past these difficult times. Further, the ability of police officers to alter or interfere with these practices would be restricted. [ 57 ] As a member of the judiciary sitting in courts during this time frame, it was apparent that many practices were altered by agreement with stakeholders in the court houses and the corrections facilities, including remand centres.

Each institution was in almost daily contact with public health officials and each other to work through the problems and obstacles created by responses to emerging factors surrounding the health implications caused by this coronavirus. This Court remembered well the torturous pace of even the simple task of having someone appear in court by telephone.

The days were long, filled with extensive delays, and it must be remembered that this was occurring with the assistance of counsel and extensive reliance on technology to allow for virtual appearances. [ 58 ] Even well-established Charter requirements were imperiled by these responses and their consequent obstacles and problems. Again, this was a well-known backdrop at this time. It should not be forgotten how much longer things in the criminal justice system took to happen in the pandemic.

More often than not, the outcome in the courtroom was to let the correctional facilities deal with their own problems as best they could and try not to disrupt their processes. This was a concession made because of the perceived implications to the health of detainees and staff. In my view, that would have similarly informed the CPS officer’s interactions with APU and would have moved his the culpability of his conduct down towards the lower end of the spectrum. [ 59 ] APU staff were part of the state and so their conduct should also be subject to analysis.

As noted before, APU was part of a system that was struggling to adapt. While an 85-minute time frame cannot be considered acceptable, it was important to remember how slowly things moved in all systems during the pandemic. Much of glacial pace in the correctional institutions was down to the need to protect the health of detainees and staff from infection. The mere act of moving one detainee from one part of an institution to another was a difficult, and time-consuming process. [ 60 ] This factor was a less serious course of conduct and diminished the push to exclusion.

Number of Breaches [ 61 ] In this case there was only one on-going breach during the 85-minute time frame. However, the absence of multiple breaches was a neutral factor regarding the seriousness of the alleged Charter -infringing conduct. Discoverability of Evidence Absent the Breach [ 62 ] Given that the search was carried out in a reasonable manner, it was safe to conclude that the evidence had no causal connection to the breach.

Although the breach was one that should always be considered serious given the importance of the right to counsel, the Charter -infringing conduct was with regard to the access to counsel not the search.

This was only one factor to be considered and was not determinative, in and of itself, of this branch of the analysis. [ 63 ] When reviewing the factual construct of the arrest and access to counsel, the backdrop of the pandemic health protocol and the reasonableness of the search and then assessing the officer’s actions and attitudes, the Court has concluded that the breach was on lower end of the scale as a more minor, technical breach. This conclusion could only be viewed this way considering the disruption caused by the pandemic.

All systems moved at a glacial pace at the height of the pandemic and, while it was regrettable, the criminal justice system was not immune to those effects. [ 64 ] Accordingly, this factor was considered as pushing slightly towards exclusion. The Impact on Charter-Protected Interests of the Accused [ 65 ] As set out in R v Cote 2011 SCC 46 , the greater the impact on Mr. Lugela’s Charter -protected interests, the greater the need for courts to distance themselves from the conduct by excluding evidence linked to it.

This is because “admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.” [ 66 ] In R v MacMillan 2013 ONCA 109 at paragraph 77 the Court said assessing the second Grant factor required the trial judge to step into the accused’s shoes to understand how the state misconduct has affected their rights, liberty, and human dignity.

That is, assessing the second Grant factor was a two-step process: (1) identifying the Charter -protected interests; and (2) assessing the impact of the conduct on those interests. [ 67 ] In Suberu , supra the Supreme Court said that when access to counsel was withheld, liberty was at stake and an accused may not know how to reclaim it. Here Mr. Lugela’s liberty interests were at stake. It is important to note that, while Mr.

Lugela was no stranger to the criminal justice system and was not likely to have been unduly influenced by the delay, the courts must be determined to protect those interests where necessary. [ 68 ] The impact of the infringement on Mr. Lugela’s Charter -protected interests was not insignificant. It was not a fleeting violation of his right to counsel, which would have had less of an impact, but instead lasted for 85 minutes. The infringement would be more serious if there were evidence that Mr.

Lugela made an inculpatory statement or committed a self-incriminating act while his right to retain and instruct counsel was delayed, but that was not the case. Again, the fact that there was no attempt to secure an inculpatory statement during this time period makes this a less damaging infringement but that is only one factor to consider in the whole analysis. The search itself was conducted in a reasonable manner and this the evidence that Mr Lugela wanted excluded.

[ 69 ] Nonetheless, the more minor impact of the conduct on Mr. Lugela’s Charter -protected interest indicated that this factor was neutral or, if anything, slightly favoured exclusion. Adjudication on its Merits [ 70 ] Society’s interest in the adjudication of a case usually favours admitting reliable evidence. However, as set out in Grant , this assessment requires some nuance as set out paragraphs 79-80 and 82-84: Society generally expects that a criminal allegation will be adjudicated on its merits.

Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society’s “collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law.” ... The concern for truth-seeking is only one of the considerations under a s. 24(2) application. The view that reliable evidence is admissible regardless of how it was obtained is inconsistent with the Charter ’s affirmation of rights. ...

The fact that the evidence obtained in breach of the Charter may facilitate the discovery of the truth and the adjudication of a case on its merits must therefore be weighed against factors pointing to exclusion, in order to “balance the interests of truth with the integrity of the justice system.” The court must ask “whether the vindication of the specific Charter violation through the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial.” The importance of the evidence to the prosecution’s case is another factor that may be considered in this line of inquiry.

Like Deschamps J., we view this factor as corollary to the inquiry into reliability, in the following limited sense. The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution. … In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways.

Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)’s focus.

As pointed out in Burlingham, the goals furthered by s. 24(2) “operate independently of the type of crime for which the individual stands accused.” And as Lamer J. observed in Collins, “[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority.” The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice.

Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high. [ 71 ] However, reliable, “real evidence” generally favoured admission, especially when it was crucial to the Crown’s case such as in the case of McColman , supra . Further, recent SCC decisions suggest that society’s interest in the adjudication of a case on its merits was higher for more serious crimes (see Tim , supra ).

In particular, firearms crimes are serious and society’s interest in seeing them prosecuted and adjudicated on their merits was especially high (see McColman and R v Le, 2019 SCC 34 ) Many cases have found the same to be true of drug crimes and violent crimes (see Tim , and Beaver, supra ). [ 72 ] In the present case the drug and firearm evidence was real and reliable, and the Crown’s case was highly dependent on it, at least with respect to most of the charged offences. Further, the alleged crimes were several and extremely serious. Society’s interest in adjudicating this case on its merits was high.

The Reputation of the Administration of Justice [ 73 ] The final consideration is whether, based (only) on the (independently assessed) Gran t factors, admitting the evidence would bring the administration of justice into disrepute. [ 74 ] Grant provides clarity on how this test is understood and interpreted, emphasizing that: Section 24(2)’s focus is long-term, and prospective. “The fact of the Charter breach means damage has already been done to the administration of justice.

Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.” Section 24(2)’s focus is also societal. It is not aimed at compensating the accused or punishing the police, but at systemic concerns. The test is whether, upon assessing and then balancing the Grant factors, a reasonable person would conclude that admitting the evidence would bring the administration of justice into disrepute.

The “reasonable person” is not just any reasonable person, but one who is “informed of all relevant circumstances and the values underlying the Charter .” The “administration of justice” includes not only the process by which those who break the law are investigated, charged, and tried, but also, “[m]ore broadly,” maintaining the rule of law and upholding Charter rights in the system as a whole. “The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.” Exclusion of evidence resulting in an acquittal may provoke immediate criticism.

But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. [ 75 ] Recently, the SCC has further provided further guidance on how it was to be applied:

1 . It is imperative that each Grant factor was analyzed separately before performing the final consideration of whether the evidence should be excluded. McColman , Le , Tim and Beaver 2 .

Although the first two Grant factors “typically work in tandem in the sense that both pull towards exclusion of the evidence, they need not pull with identical degrees of force in order to compel exclusion.” Le and McColman 3 . “[I]t is the cumulative weight of the first two lines of inquiry that trial judges must consider and balance against the third line of inquiry when assessing whether evidence should be excluded.” R v LaFrance 2022 SCC 32 4 .

Although balancing the Grant factors was a qualitative process not capable of mathematical precision, evidence will almost always be excluded when the first two factors cumulatively pull strongly toward exclusion. In such cases, the third Grant factor “will seldom if ever tip the balance in favour of admissibility.” Le and Cote 5 .

Similarly, if the first two Grant factors together only weakly support exclusion, then the third Grant factor “will most often confirm that the administration of justice would not be brought into disrepute by admitting the evidence.” Le [ 76 ] The relatively weak status of the first two Grant factors combined was balanced against the third Grant factor’s strong pull toward admission. This lengthy delay in facilitating Mr. Lugela’s right to access counsel was a Charter infringement which impacted his Charter -protected liberty interests. This was not to be taken lightly.

Much of the concern a court would have in normal circumstances was blunted by the unusual circumstances surrounding the health protocols caused by the pandemic. Society’s interest in adjudicating the charged offences on the case’s merits was not to be taken lightly either. The evidence in question was real and reliable. [ 77 ] Indeed, its continuity, integrity, admissibility, accuracy, and authenticity were admitted by the parties. The numerous charged offences include violent, drug, and firearms crimes.

CONCLUSION [ 78 ] In weighing the above assessments of the Grant factors, a reasonable person informed of Charter standards and all the circumstances would not conclude that admitting the evidence would bring the justice system into disrepute. the evidence should be admitted. Heard on the 3 rd day of August, 2023. Dated at the City of Calgary, Alberta this 3 rd day of August, 2023. P.J. Mason A Justice of the Alberta Court of Justice Appearances: D.Spaner; W.Tran for the Crown R.Snukal for the Accused