R. v. Gessen, 2022 MBKB 210

Date: 20221101 Docket: CR 19-01-37738 (Winnipeg Centre) Indexed as: R. v. Gessen Cited as: 2022 MBKB 210 COURT OF king’S BENCH OF MANITOBA B E T W E E N: His MAJESTY THE king, ) APPEARANCES: ) ) ) Kirsty Elgert and Stephen Sisson - and - ) for the Crown ) ) DAVID GESSEN, ) ) Tony Paisana and Rachel Wood, ) for the accused Accused. ) ) ) ) ) JUDGMENT DELIVERED: NOVEMBER 1, 2022 RULING ON VOIR DIRE #2 GREENBERG J. [ 1 ] David Gessen is charged with possession of cocaine for the purpose of trafficking and possession of proceeds of crime.

He seeks to exclude, under s. 24(2) of the Charter of Rights and Freedoms , evidence of drugs, money and drug paraphernalia found as a result of the warranted search of two suites in a Winnipeg apartment building. In a previous voir dire , I found that the warrants on which the searches were based were validly issued ( R. v. Gessen , 2021 MBQB 102 ). After I issued my reasons on that voir dire , Mr. Gessen retained new counsel and now raises new issues regarding the admissibility of the seized evidence.

He says that, notwithstanding the valid warrants, the evidence found in the searches should be excluded because it was obtained in a manner that violated his rights under ss. 8 and 10(

b) of the Charter . He says that the police violated his rights under s. 8 by conducting an illegal strip search of him and by seizing a laptop that was not identified in the warrant as an item to be seized, and violated his rights under s. 10(

b) by not facilitating a call to his lawyer until seven hours after his arrest. [ 2 ] For the reasons that follow, I find that the seizure of the laptop was valid but the strip search was not. The Crown has conceded a breach of s. 10(b). Both the strip search and delay in providing access to counsel were based on invalid police practices and not on the particular circumstances of this case.

The evidence obtained in the searches of the suites should be excluded, as its admission would bring the administration of justice into disrepute. background [ 3 ] On March 17, 2017, police obtained warrants to search two suites at 277 Wellington Crescent in Winnipeg. The warrants were obtained on information that David Gessen was the head of a drug network trafficking in crack cocaine; that Gessen cooked the cocaine in his suite at 1209 - 277 Wellington Crescent, but used suite 305 to stash it.

Police information was that suite 305 was occupied by Aynzley Sanderson, who had taken over the role in the drug operation that had been occupied her brother, Tyion Policarpo, when he was incarcerated. Ms Sanderson was also a target of the investigation. [ 4 ] The warrants were executed the same day they were obtained. On the search of suite 1209, police found drug-packaging materials, several cell phones and over $12,000 in cash. On the search of suite 305, they found crack cocaine with a street value of

$55,000, a small amount of other drugs, several cell phones and sim cards, digital scales, packaging material, score sheets, a cash counter, a safe containing about $85,500 and a laptop. [ 5 ] Sgt. Douglas Onagi was the officer in charge of monitoring the scene and overseeing the execution of the search warrants. He and other officers arrived at the scene sometime in the afternoon of March 17. Shortly after 3:30 p.m., police observed Gessen, with a passenger, drive into the underground parkade at 277 Wellington Crescent. Sgt.

Onagi and other officers followed him into the parkade and arrested him and his passenger, Tyion Policarpo. Policarpo had not been a target of the investigation because police thought he was still incarcerated. [ 6 ] Cst. Sean Prawdzik took over custody of Gessen in the parkade. He did a pat down search of Gessen but could not recall if anything was found. Cst. Prawdzik transported Gessen to headquarters and advised him of his right to counsel. Gessen said he wanted to talk to his lawyer. At 3:57 p.m., Cst. Prawdzik arrived with Gessen at headquarters where he conducted a second pat down search.

He also conducted a strip search of Gessen. Cst. Prawdzik could not recall details of that search and had no notes of it but described his usual practice as follows. Strip searches are done in a private room in the presence of him and his partner. The officers who are present are the same gender as the detainee. There is no video in the room. There is no physical contact with the detainee; the detainee removes his own clothes. Cst. Prawdzik said that his usual practice is, after the detainee has removed all his clothing, to ask him to bend over, move his genitals aside and cough. The only thing that Cst.

Prawdzik recorded in his notes about the strip search of Gessen was that nothing was found. [ 7 ] Cst. Prawdzik testified that he strip searched Gessen because it was police practice to strip search everyone who is arrested for a drug charge. He did not recall any reasons specific to this case to justify the search. He said that it is still his practice to search in every drug case even though he understands department policy may have changed. [ 8 ] Although Gessen had asked to speak to his lawyer, Cst.

Prawdzik did not facilitate access to counsel because it was police practice to delay access until the warranted search was completed. He handed over Gessen to other officers at 7:10 p.m. [ 9 ] Sgt. Onagi confirmed that it was police policy to delay access to counsel until the search was completed. He said the reason for delaying access is to ensure that the detainee does not contact accomplices before the search is complete as that might put officers' safety at risk.

Delaying access to counsel was always the practice when he was with the Winnipeg Police Service (“WPS”) and it was still the practice when he retired in June 2022. [ 10 ] Sgt. Onagi said the search of the suites was completed at about 8:25 p.m. However, police waited until 10:58 p.m. to facilitate Gessen’s access to counsel. Sgt. Onagi testified that the detainee is not given the phone keypad to place the call himself. Police "dial" the lawyer’s number, advise the lawyer of the nature of the charge and then pass the receiver to the detainee.

Gessen was released on an undertaking a couple of hours after speaking to his lawyer. [ 11 ] Cst. Darren Ray participated in the take down at 277 Wellington Crescent and assisted in the arrest of Tyion Policarpo, the passenger in Gessen’s vehicle. He did not remember whether Policarpo was strip-searched, but testified that was the usual practice on drug arrests. He said that the policy has changed recently. Police are now required to have reasonable grounds to justify a strip search.

He testified that, if he arrested Policarpo today, he would not strip search him, as he would not have reasonable grounds to do so. [ 12 ] Cst. Ray also confirmed that police policy at the time was to delay access to counsel until the search site was cleared and contained. He said that policy has also changed in the past two years. The accused is now given access to counsel as soon as they go through central processing. Issues [ 13 ] Mr.

Gessen’s application raises the following issues: • Was the seizure of the laptop from suite 305 invalid because the laptop was not listed in the search warrant? • Was the strip search valid? • Was the delay in providing Gessen access to counsel a violation of his rights under s. 10(

b) of the Charter ? • Was the evidence found on the search of the suites obtained in a manner that violated Gessen’s Charter rights and, if so, should it be excluded under s. 24(2) ? general Principles of law Strip Searches [ 14 ] In R. v. Golden , 2001 SCC 83 , [2001] 3 SCR 679, the Supreme Court held that a strip search will be valid as an incident to a lawful arrest where there are reasonable and probable grounds for the strip search, in addition to reasonable and probable grounds for the arrest, and the search is carried out in a reasonable manner.

The onus is on the Crown to show, on a balance of probabilities, that reasonable grounds existed and that the search was conducted in a reasonable manner. Reasonable grounds will not be established by a general police policy to conduct strip searches in all investigations or in all investigations of a particular offence. Iacobucci and Arbour

JJ. explained: 94 In addition to searching for evidence related to the reason for the arrest, the common law also authorizes police to search for weaponsas an incident to arrest for the purpose of ensuring the safety of the police, the detainee and other persons. However, a "frisk" or "pat-down" search at the point of arrest will generally suffice for the purposes of determining if the accused has secreted weapons on hisperson.

Only if the frisk search reveals a possible weapon secreted on the detainee's person or if the particular circumstances of the caseraise the risk that a weapon is concealed on the detainee's person will a strip search be justified. Whether searching for evidence or forweapons, the mere possibility that an individual may be concealing evidence or weapons upon his person is not sufficient to justify astrip search. 95 The requirement that the strip search be for evidence related to the grounds for the arrest or for weapons reflects the twin rationalesfor the common law power of search incident to arrest.

Strip searches cannot be carried out as a matter of routine police departmentpolicy applicable to all arrestees, whether they are arrested for impaired driving, public drunkenness, shoplifting or trafficking innarcotics. The fact that a strip search is conducted as a matter of routine policy and is carried out in a reasonable manner does not renderthe search reasonable within the meaning of s. 8 of the Charter. A strip search will always be unreasonable if it is carried out abusively orfor the purpose of humiliating or punishing the arrestee.

Yet a "routine" strip search carried out in good faith and without violence willalso violate s. 8 where there is no compelling reason for performing a strip search in the circumstances of the arrest. [15] The Court in Golden set out guidelines for the conduct of a strip search to ensure that the search is conducted in a reasonablemanner (paras. 101-102).

Two of those guidelines, which were not followed in this case, are that the search should be conducted in away that the detainee is not completely undressed at any one time and that officers should keep a record of the reasons for and manner inwhich the search was conducted.

Section 10(b) [16] The purpose of s. 10(

b) of the Charter is twofold: 1) it allows detainees to obtain advice about whether to exercise their right tosilence and 2) it allows detainees to obtain advice about regaining their liberty (R. v. Bartle, (SCC), [1994] 3 SCR 173,at para. 16; R. v. Suberu, 2009 SCC 33, [2009] 2 SCR 460, at para. 40). [17]

Section 10(

b) of the Charter requires police to inform detainees of their right to counsel and to facilitate access to counsel“without delay”. The meaning of “without delay” was explained in Suberu: [42] ... In our view, the words “without delay” mean “immediately” for the purposes of s. 10(b).

Subject to concerns for officer orpublic safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detaineeof his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention. [emphasis added] Section 24(2) [18] The onus is on the accused to show that evidence that is obtained in a manner that infringed his/her rights under the Chartershould be excluded because admission of the evidence would bring the administration of justice into disrepute (R. v. Collins, (SCC), [1987] 1 SCR 265).

There does not have to be a causal connection between the Charter breach and the discovery ofthe evidence to justify exclusion. A temporal or contextual connection may suffice (R. v. Wittwer, 2008 SCC 33, [2008] 2 SCR 235). InR. v. Tim, 2022 SCC 12, Jamal J. reviewed the principles that guide the determination of whether evidence was “obtained in a manner”that violates the Charter: [78] This Court has provided guidance as to when evidence is "obtained in a manner" that breached an accused's Charter rights so as totrigger s. 24(2): 1.

The courts take "a purposive and generous approach" to whether evidence was "obtained in a manner" that breached an accused'sCharter rights. 2. The "entire chain of events" involving the Charter breach and the impugned evidence should be examined. 3. "Evidence will be tainted if the breach and the discovery of the impugned evidence are part of the same transaction or course ofconduct". 4. The connection between the Charter breach and the impugned evidence can be "temporal, contextual, causal or a combination of

[90] While the first two lines of inquiry typically work in tandem, it is not necessary that both of them support exclusion in order for acourt to determine that admission would bring the administration of justice into disrepute (Le, at para. 141). As the Court said in Le, "[i]tis the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion" (para. 141). In other words,it is the cumulative weight of the first two lines of inquiry that trial judges must consider and balance against the third line of inquirywhen assessing whether evidence should be excluded.

That is why the third line -- which typically pulls towards a finding that admissionwould not bring the administration of justice into disrepute -- will seldom tip the scale in favour of admissibility when the two first lines,taken together, make a strong case for exclusion (Le, at para. 142; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 56). [104] These comments in McGuffie and Le as to the relative importance of the third line of inquiry do not change the test described inHarrison, which is based on the reasoning in Grant. The rule identified in McGuffie and Le is not absolute.

Rather, it reflects the likelyoutcome of the final stage balancing in certain circumstances. In every case, the overarching question remains the impact of inclusion orexclusion on the repute of justice, and the answer to that question turns on all of the circumstances. [49] If police come across a computer in the course of a search and their warrant does not provide specific authorization to searchcomputers, they may seize the computer (assuming it may reasonably be thought to contain the sort of things that the warrant authorizesto be seized), and do what is necessary to ensure the integrity of the data.

If they wish to search the data, however, they must obtain aseparate warrant. the three". 5. A remote or tenuous connection between the Charter breach and the impugned evidence will not suffice to trigger s. 24(2) … Suchsituations should be dealt with on a case by case basis.

There is "no hard and fast rule for determining when evidence obtained followingthe infringement of a Charter right becomes too remote". [references omitted] [19] Where evidence was obtained in a manner that violates the Charter, admissibility of that evidence depends on a considerationand balancing of the following factors: 1) the seriousness of the state conduct; 2) the impact of the breach on the accused’s Charter-protected interests; and 3) society’s interest in adjudication of the case on the merits (R. v. Grant, 2009 SCC 32, [2009] 2 SCR 353).

Theoverarching concern in determining admissibility is on the broad impact of admission of the evidence on the long-term repute of thejustice system (Grant, para. 70). [20] Recent jurisprudence suggests that where the first two Grant factors favour exclusion, the third factor will rarely allowinclusion. In R. v. Lafrance, 2022 SCC 32, Brown J. commented (at par. 90): [21] This dicta does not change the nature of the Grant test. The decision under s. 24(2) must always be based on a consideration ofall circumstances. As explained in R. v. Moyles, 2019 SKCA 72 : (See also R. v.

Garland, 2019 ABCA 479 , at paras. 57-61.) analysis The Seizure of the Laptop [22] The defence argues that the seizure of a laptop from suite 305 was unlawful because the laptop was not listed in the warrantthat authorized the search.

Defence counsel did not pursue this argument with any vigor in oral submissions and I find there is no meritto it. [23] The search warrant for suite 305 states that there were reasonable grounds to believe there would be offence-related property orevidence of the offence in the suite, “to wit: cocaine, currency, drug packaging material, cellphones, documents proving ownership”(emphasis added). The laptop was found in a suite filled with evidence of drug trafficking.

The officer who seized the laptop testified thathe seized it because he thought it might contain proof of ownership or other information relevant to the investigation. This is not anunreasonable assumption. The officer did not search the laptop. His evidence was that he did not even turn it on. Police obtained awarrant before searching it. [24] In my view, the seizure of the laptop was authorized by the wording of the warrant. Alternatively, it was authorized by s.489(1) of the Criminal Code, ss. 11(6) and 11(8) of the Controlled Drugs and Substances Act and the plain view doctrine.

As stated byCrowmell J. in R. v. Vu, 2013 SCC 60, [2013] 3 SCR 657: The Strip Search [25] Cst. Prawdzik, who conducted the strip search on Gessen, testified that he conducted the strip search because it was policepractice to do so in all drug cases. He did not refer to any circumstances of this investigation that would give him grounds to believe thatGessen was secreting drugs or weapons under his clothes. In fact, he had no recollection of the search and his only notes of the eventwere that nothing was found. [26] The Crown argues that it was reasonable for Cst.

Prawdzik to believe he would find evidence of drug trafficking in a stripsearch of Gessen because police did not know where Gessen was coming from when he was arrested and because Cst. Prawdzik testified

89 … As was pointed out in Flintoff, supra, at p. 257, "[s]trip-searching is one of the most intrusive manners of searching and also one ofthe most extreme exercises of police power". 90 Strip searches are thus inherently humiliating and degrading for detainees regardless of the manner in which they are carried out andfor this reason they cannot be carried out simply as a matter of routine policy... that he has found drugs and weapons secreted in clothing and body cavities on other occasions. [27] The Crown relies on R. v.

Ali, 2022 SCC 1, where the court found the strip search valid because there was "some evidence"suggesting the possibility that the accused was concealing drugs in and around his buttocks. In that case, the police had confidentialsource information that the accused was in possession of a large quantity of cocaine and that he kept most of his drugs on his person. Hewas found next to a table with drugs, other than cocaine, and drug paraphernalia; his pants were partially down and police saw himreaching towards the back of his pants.

But, in the case at bar, police witnesses offered no evidence to suggest Gessen was concealingdrugs or weapons on his person. Rather, the evidence here is that the strip search was based on a police practice, not on the particularcircumstances of the case. It is clear from Golden that strip searches conducted as a matter of routine practice violate s. 8. [28] Moreover, assuming that Cst. Prawdzik conducted the strip search in accordance with his usual practice (and there is noevidence to suggest otherwise), I find the manner of the search to be unreasonable. In view of the fact that Cst.

Prawdzik had conductedtwo pat down searches, finding nothing, it was not necessary to require Gessen to remove all of his clothes to look for weapons. Even ifthe purpose of the strip search was to look for drugs, requiring the detainee to remove all of his clothes at once and bend over wouldrequire further justification. A strip search must be conducted in a manner that interferes as little as possible with the person’s privacyand dignity (Golden, para. 104). For example, the strip search in R. v.

Tim, supra, which was conducted after police saw a gun andammunition fall out of the accused’s pants, was found to be reasonable because it was minimally intrusive. It was limited to thewaistband of the accused’s underwear which he wore throughout the search (at para. 68). [29] In my view, the strip search of Gessen violated his rights under s.

Section 10(b) [30] Gessen was arrested shortly after 3:30 p.m. on March 17th. He was taken to police headquarters, arriving at 3:37 p.m. At 10:58p.m., he was afforded a call to his lawyer. The defence argues that Gessen should have been allowed a call to counsel as soon as hearrived at headquarters and that the delay of seven hours in implementing access to counsel was a serious breach of s. 10(b). Again,police justified their actions on the basis of their usual practice, which was to delay access to counsel until the search was completed. This type of blanket policy is invalid. While a delay in implementing s. 10(

b) may be justified where there are concerns about policesafety, such concerns must be established on the facts of the particular case. In any event, as the search of the two suites was completedby 8:30 p.m., the police practice does not explain the additional 2.5-hour delay in this case. [31] The Crown concedes that the 2.5-hour delay breached s. 10(

b) but says that the initial delay until the search was complete wasjustified. They rely on R. v. Keshavaraz, 2022 ONCA 312 , where police delayed access to counsel for four hours until afterthey had completed searches of the accused’s residences.

The court held that the delay was justified because police did not rely on ageneral policy but had turned their mind to the specific circumstances of the case and provided reasonable grounds for the delay. [32] However, the evidence in this case is (in fact, it is an agreed fact) that officers delayed implementing the right to counselbecause of a general police practice not because of any specific concerns related to safety. Moreover, in view of the manner in whichpolice facilitate access to counsel, the practice does not make sense. As I said, Sgt.

Onagi testified that the reason for the practice is theconcern that the detainee may contact an accomplice who could try to access the scene while police are executing the warrant. Butdetainees are not given a phone with a keypad to call counsel. Police place the call and then pass the receiver to the detainee. Sodetainees would not be able to contact an accomplice as they cannot place a call. To suggest that his lawyer, an officer of the court,would deliberately or unwittingly contact an accomplice and advise him/her of the search is far-fetched.

And it would appear that thepolice no longer have this concern since the evidence is that the practice of delaying access to counsel has been abandoned. Section 24(2) [33] While the discovery of the evidence in the two suites at 277 Wellington Crescent was not causally connected to the breach ofGessen’s ss. 8 and 10(

b) rights, there was a temporal and contextual connection sufficient to meet the "obtained in a manner" threshold. The arrest of Gessen and search of the suites was part of one investigation of which he was the primary target. A number of officerswere involved and assigned different tasks in the take down and search. [34] After a briefing at headquarters, police attended 277 Wellington Crescent and positioned themselves around the building. Theydid not execute the warrants until after Gessen arrived and was arrested.

Gessen was strip searched at headquarters at the same time asthe search of the suites was carried out. Although at different locations, the execution of the search warrants and police handling ofGessen was part of the same transaction. Although Sgt. Onagi was in charge of overseeing the scene, he acted in consultation with thedesk sergeant at the station. Some of the officers, in particular Cst. Ray who was involved in Policarpo’s arrest, moved between the twolocations. And the delay in allowing Gessen access to counsel was directly related to the ongoing search.

In my view, the connectionbetween what was happening at the scene and what was happening at the station is not a tenuous one. [35] Turning to the three Grant factors, both the strip search and the delay in facilitating access to counsel were serious breaches. Inboth cases, police were acting on general practices or policies with no regard for the circumstances of the particular case. Thesepractices continued in place for years in spite of clear Supreme Court authority on the rights of individuals under ss. 8 and 10(

b) of theCharter. And both the search and the delay in accessing counsel had a serious impact on Gessen’s rights. [36] In Golden, Iacobucci and Arbour JJ. commented:

[37] Moreover, the manner of the strip search in this case was particularly demeaning. Gessen was required to strip naked, bendover, move his genitals aside and cough. Cst. Prawdzik provided no explanation as to why the way he conducts strip searches seems to“take it to the next level”. The nature of the strip search described by Cst. Ray, who was involved in the arrest of Mr. Policarpo, is lessinvasive. He said that detainees remove one item of clothing at a time. The item is searched and returned before the next item is removedso that the detainee is never completely naked. [38] As for the s. 10(

b) breach, as I explained above, the practice of not allowing access to counsel until the search was completemakes no sense nor does it explain the 2.5 hour delay after the search was complete. [39] In R. v. Rover, 2018 ONCA 745 , the court excluded evidence of drugs found in a warranted search of the accused’sresidence because the accused was not given an opportunity to speak to his lawyer until six hours after his arrest.

As in this case, thepolice were relying on their customary practice not to provide access to counsel until the search was complete and, as here, they had notattempted to speak to the accused before he spoke to his lawyer. The court found that, “Constitutional breaches that are the direct resultof systemic or institutional police practices must render the police conduct more serious for the purposes of a s. 24(2) analysis” (para.40).

The court held that, although there was no causal connection between the breach and the discovery of the drugs, the impact on theaccused’s rights was still serious. [40] The Crown argues that the impact on Gessen's rights was minimal because police did not attempt to interview him before hehad spoken to his lawyer. But the purpose of s. 10(

b) is not only to ensure the accused’s protection against self-incrimination but also toallow him to consult counsel about regaining his liberty. As Doherty J.A. said in Rover, at para. 45, “The right to counsel is a lifeline fordetained persons” (See also R. v.

Dussault, 2022 SCC 16, at para. 56). [41] While the fact that the breaches were not causally connected to the discovery of the evidence mitigates the serious nature of thebreaches, the fact that the practices on which the police conduct was based were of long standing places that conduct at the most seriousend of the spectrum of culpability (Tim, at para. 88). In my view, the first two Grant factors strongly weigh in favour of excluding theevidence. [42] The third Grant factor addresses society’s interest in the adjudication of the case on its merits.

Where evidence is reliable andimportant to the Crown’s case, it usually weighs in favour of inclusion (Grant, para. 83). The evidence seized from suites 305 and 1209is reliable and the Crown indicates that it cannot proceed with the prosecution without it. [43] The Crown also argued that the seriousness of the charges in this case support the admission of the evidence.

But, as stated inGrant, at para. 84: “[W]hile the public has a heightened interest in seeing a determination on the merits where the offence charged isserious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accusedare high.” [44] In my view, the first two Grant factors pull strongly towards exclusion of the evidence while the third favours admission. Balancing the three factors, I find that admitting the evidence in this case would negatively impact the long-term repute of the justicesystem.

The Charter breaches in this case were part of systemic practices that endured for years. Although the decision in Golden wasreleased in 2001, the practice of routine strip searches was only recently abandoned by the WPS. Sgt. Onagi testified that the practicewas still followed when he retired in June 2022. Even more concerning is Cst. Prawdzik’s evidence that his own practice has notchanged, which makes one wonder whether the general practice has in fact changed.

Similarly, the practice of delaying access to counselremained in place for years after the Supreme Court held that, in the absence of police or public safety concerns, s. 10(

b) must beimplemented immediately after detention. As stated by Doherty J.A. in Rover, at para. 37, “[t]he systemic nature of the violation plays acentral role in assessing its long-term impact on the proper administration of justice.” (See also R. v. Lichtenwald, 2020 SKCA 70) [45] While s. 24(2) is not to be used to punish the police, the court must disassociate itself from long standing systemic abuses ofpolice authority.

The evidence seized from suites 305 and 1209 at 277 Wellington Crescent will not be admitted at trial. [46] I add that the fact that there was more than one serious breach in this case tilts the balance in favour of exclusion. However,even if I had found that the strip search was valid, the seriousness and impact of the s. 10(

b) breach is sufficient to warrant exclusion. J.