R. v. Andom, 2024 MBPC 1

CITATION: R. v. Andom, 2024 MBPC 1 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Jennifer Comack ) ) for the Crown - and – ) ) ) Samuel Andom ) ) Gerri Wiebe for the Accused ) ) ) Reasons for Decision ) Delivered: January 3, 2024 Anne Krahn, P.J. INTRODUCTION [ 1 ] Samuel Andom was sitting in the driver’s seat of a parked car about to roll a marihuana cigarette when he was approached by the police. A citizen had complained people in the car were smoking drugs. Mr. Andom did not have identification with him.

He was asked to exit and sit behind the vehicle while police were dealing with the passenger. When police returned to the car to seize the marihuana, they saw a firearm under the driver’s seat. [ 2 ] Samuel Andom is charged with being in illegal possession of a firearm in a vehicle. Mr. Andom argues he was arbitrarily detained because the police pulled up behind his car preventing him from leaving when they did not have grounds and asking him to exit his vehicle.

He says his right to counsel was breached when he was not advised immediately upon detention or arrest of his right to counsel, and not given an opportunity to contact counsel in a timely way. Mr. Andom asks the firearm be excluded due to the seriousness of those violations.

The Crown concedes his guarantee by the Canadian Charter of Rights and Freedoms ( Charter ) of the right to counsel was breached when he was not advised of his right to call counsel immediately upon arrest but says the firearm should not be excluded because the violation was not serious. [ 3 ] This is my decision on the voir dire regarding the alleged Charter violations. As an outline for my decision, I will deal first with the question of whether Mr. Andom was arbitrarily detained. Second, I will deal with whether the firearm was found as a result of an unreasonable search.

Third, I will consider whether the police breached their duty to implement his right to counsel by not doing so immediately. And finally, whether the seizure of the firearm should be excluded because established breaches of Charter rights would mean to admit the firearm would bring the administration of justice into disrepute. Was Mr. Andom arbitrarily detained? [ 4 ] Mr. Andom argues he was arbitrarily detained when the police pulled up behind his parked vehicle so that he could not leave.

He also says he was arbitrarily detained when he was asked to exit his vehicle and sit on the ground, as this was an unnecessary escalation of his detention. In order to understand these arguments, let me review the testimony of Constables (Cst.) Thagard and Church. [ 5 ] On August 8, 2022, the Winnipeg Police Service received a complaint from a citizen. The citizen complained there were people in a car in the parking lot of an apartment building at 100 Prevette Street smoking drugs. The complainant reported this was an ongoing issue. The car was described as a white Mercedes with the licence KXB 596. Cst.

Thagard, in the company of Cst. Church were dispatched to the call at 10:19 pm. Cst. Thagard was the substitute field trainer for Cst. Church that evening. Cst. Church was in phase one of two phases of training as a police officer. As they were driving to the scene, Cst. Church, who was in the passenger seat, spoke directly to the complainant by telephone. The complainant was a resident of the apartment building adjacent to the parking lot. Cst.

Church ran the licence plate on the police database and retrieved information the registered owner of the Mercedes had the last name Olivera and resided at an address on Rose Hill Place. The vehicle was negative for any concerns on the police database. [ 6 ] When the police arrived on scene at 10:40 pm, they pulled in behind the white Mercedes with the licence plate provided by the complainant, at an angle so the vehicle could not pull out. Cst. Church testified the Mercedes was running and the driver’s window was down. Cst.

Thagard went to the driver’s door where he saw a person in the driver’s seat and a person in the passenger seat.

[7] I will refer to the person in the driver’s seat as “the driver” because that is how he was referred to in the evidence andsubmissions, without making a finding he actually drove the vehicle, since the vehicle was not seen in motion by the police. [8] The driver was rolling a large marihuana cigarette at the time. Cst. Thagard could smell fresh marihuana. He told theoccupants they were not allowed to do that in a vehicle as it is contrary to the Highway Traffic Act (HTA). The male driver said theywere not doing anything wrong. Cst.

Thagard explained being in possession of marihuana in a vehicle is the same as being in possessionof open liquor in a vehicle. Cst. Thagard asked who owned the vehicle. The driver indicated it was his friend who had just gone to getsome food. Cst. Thagard found this to be a vague answer. Cst. Thagard asked both the driver and the passenger for identification. Thedriver said he did not have any identification. The passenger said his identification was in the vehicle parked to the left of the Mercedes,a Chevy Cruze. [9] It is at this point where there is some divergence between the testimony of the two officers.

Cst. Thagard said the passengeroffered, without prompting, to go get the identification from the car. Cst. Church testified the passenger was asked to go get hisidentification. Cst. Thagard testified he asked the driver to get out of the vehicle and take a seat on the ground at the back of theMercedes for officer safety reasons as he needed to keep an eye on both the person in the driver’s seat and the passenger. Cst. Thagardwent with the passenger to the vehicle beside the Mercedes. As the passenger was getting his identification, Cst.

Thagard saw a tapedcan of bear spray on the floorboard of the driver’s seat of the Chevy Cruze. Cst. Thagard immediately arrested the passenger for illegalpossession of the bear spray at 10:52 pm. He called for backup who arrived on scene at 11:00 pm. He explained they called for backupbecause they had now located a weapon, they were dealing with two people at the scene, the passenger would be taken into custody andfor officer safety. [10] Cst. Church’s evidence was a little less clear. When first asked, she was uncertain where all parties were after the passengerwas asked to get his identification.

Then she testified she spoke to the driver of the Mercedes and verbally got his name, date of birth,address and phone numbers while her partner accompanied the passenger to the adjacent Chevy Cruze. She said she was handed theidentification provided by the passenger. She went to run the information from the passenger and the verbal information from the driveron the computer system in the police car.

When asked further questions in direct about where the driver, passenger and her partner werewhile she was running the information she had been provided, she said she was a “bit fuzzy there.” She recalled the driver being out ofthe vehicle and her partner had eyes on both of them. She was able to confirm the driver’s identification as Samuel Andom. [11] Cst. Church testified while she was doing the checks, her partner came to the vehicle and told her he had found a can of bearmace taped up with black electrical tape on the driver’s side of the passenger’s vehicle.

She got out of her vehicle and was present whenthe passenger was arrested at 10:52 pm. The passenger, Mr. Tawald, was then searched and put in her custody in the back of the policevehicle. [12] In cross-examination, the narrative of Cst. Church was reviewed with her. In the narrative, she wrote while she went to do herchecks of both the driver and the passenger, Cst. Thagard asked the driver to exit the vehicle, sit behind the Mercedes while he wasspeaking to Mr. Tawald who was sitting in his Chevy Cruze. [13] I find the difference between Cst. Thagard’s evidence and Cst. Church is not that significant. Both Cst.

Thagard and Cst.Church wrote their own notes. Later, Cst. Church wrote a narrative report which was reviewed by Cst. Thagard, who signed off on thenarrative as accurate. The narrative was completed before the end of the shift. I find Cst. Church’s evidence is more accurate, both asshe recorded it in her notes and in the narrative she wrote. It makes sense to me while she was running the checks to confirmidentification, Cst. Thagard would have had greater concern about being able to keep an eye on both the driver and the passenger.

Inthose circumstances, it was reasonable for him to ask the driver to exit the vehicle and sit behind the vehicle so he could deal with thepassenger at the Chevy Cruze and keep an eye on the driver. [14] If I am wrong, and Mr. Andom was asked to exit his vehicle and sit on the ground behind it, even before Cst. Thagard wentwith the passenger to the Chevy Cruz to retrieve the passenger’s identification, I still find it was a reasonable and proportionate step in allof the circumstances.

I will return to this conclusion after a review of the legal principles and authority for peace officers in thesecircumstances. [15] In R v Orbanski; R v Elias, 2005 SCC 37 , [2005] 2 SCR 3 the Supreme Court of Canada (SCC) was dealing with theauthority of police officers to engage in some roadside screening and considered it in the context of Manitoba’s HTA (at paragraph(para.) 40).

Section 76.1 of the HTA provides for a general stop power and says a person must remain stopped until permitted by apolice officer to depart. The same

section authorizes police to ask for identification of drivers and passengers in motor vehicles. S.76.1(6) suspends the right to counsel while police are conducting an inspection as permitted by the HTA.

In Orbanski, the generalauthority provided by the HTA justified police directions to the driver to exit his vehicle, walk heel-to-toe in a line, recite the alphabetand follow the officer’s fingers with his eyes to assess sobriety. [16] The Supreme Court found in R v Ladouceur, (SCC), 1990 1 SCR 1257 the police are authorized to conductrandom traffic stops to check for sobriety, valid licencing, vehicle fitness, and during such stops, the right to counsel is suspended as ajustifiable limit under

section 1 of the Charter. [17] In addition to this authority in the HTA and common law, the Supreme Court in a number of cases has explained the “ancillarypolice power”, R v Clayton, 2007 SCC 32 [2007] 2. SCR 725, at para. 22.

In Clayton the Court repeated (from R v Dedman, (SCC), 1985 2 SCR 2) the following test to assess whether police interference with individual liberty is justified: The interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regardto the nature of the liberty interfered with and the importance of the public purpose served by the interference. (para. 26) This test mandates a case-specific inquiry into the circumstances faced by the officer and the steps taken by the police in carrying outtheir duties.

As noted by the Supreme Court, the assessment is about a flexible balancing between enabling the police to do what is

required to carry out their duties in protecting the public with an individual’s liberty and privacy rights. [18] Mr. Andom says he was arbitrarily detained when the police pulled up behind the car he was in so that he could not leave. Herelies on R v Thompson, 2020 ONCA 264 which he says is quite similar and where an arbitrary detention was found by the OntarioCourt of Appeal, overturning the trial judge who had found there was no arbitrary detention. Mr. Thompson was a 31-year-old blackman sitting in a parked car in a shopping plaza at night.

Police received an anonymous tip about drug dealing from a car in the shoppingplaza. The tip suggested women were coming and going from the vehicle. The Court of Appeal found a detention the moment twopolice cars pulled up to Mr. Thompson’s vehicle and boxed it in. The Court reviews in some detail the principles of detention. [19] Mr. Andom also relies heavily on R v Le, 2019 SCC 34 where the main issue before the Supreme Court of Canada waswhether four racialized young men were detained, when police entered into private property, without any lawful authority, and engagedwith the four people in the backyard.

The Supreme Court found the four were detained. Because the police had no specific informationabout any of the people in the backyard, the detention was found to be arbitrary. It is clear to me there was a detention in the casebefore me, so I need not engage the analysis described in Le to determine Mr. Andom was detained. [20] I have no difficulty in finding Mr. Andom was detained because the police pulled up behind him in such a way he could notleave.

As noted by the Supreme Court, anyone pulled over by police for a traffic stop is physically detained because they would not feelthey could leave (see R v Therens, (SCC), [1985] 1 SCR 613, R v Thomsen, (SCC), [1988] 1 SCR640, Ladouceur, R v Hufsky, (SCC), [1988] 1 SCR 621). [21] The more significant question in this case is whether the detention was arbitrary. This is where the Thompson case is easilydistinguishable. First, the nature of the tip in Thompson was described as “vague” which is not the case here.

The information in thecase before me was not anonymous, it was specific and detailed which makes it compelling. Cst. Church spoke to the complainant, whowas identified by name, as they were driving to the location. The complainant reported he could still see the vehicle in the parking lot. Ifind since the complainant lived in the apartment building adjoining the parking lot, and the specific information being providedincluded the make, colour and licence plate of the vehicle, this was first-hand information which gives it credibility. The complainantadvised this was an ongoing issue.

The information provided by the complainant was corroborated when police pulled up and saw theMercedes with the licence plate the complainant had provided. I conclude the police were performing appropriate general policing dutieswhich the complaining citizen would reasonably have expected them to do based on their call to the police. The information police haddoes meet the reasonable suspicion standard (R v Mann 2004 SCC 52). [22] Secondly, in Thompson, at para. 60 the Court says the Crown did not rely on any statutory power such as the HTA or theCriminal Code (Code) to justify the police actions.

The Court dealt with whether or not the detention was arbitrary in one paragraph (atpara. 65) and notes the Crown did not argue the vague tip was sufficient to detain. This is also a significant distinction from the evidencebefore me. Cst. Thagard testified he did not have sufficient grounds to arrest based on the complaint, but he did have enough informationto “approach the vehicle and conduct a traffic stop – or what would have been paramount (sic) to a traffic stop.” (Transcript page. T22). Iagree this was tantamount to a traffic stop.

The information of people consuming drugs in the vehicle does lead to concerns regarding anoperator’s sobriety. Cst. Thagard had that subjective concern and that concern was reasonable. Sobriety in motor vehicles, as I havealready noted above, was found to be a legitimate purpose in Orbanski for a traffic stop. While I appreciate the vehicle was not movingwhen the police pulled up, the vehicle was, based on Cst. Church’s evidence, running. The HTA applied in the parking lot, see R vFerland 2011 MBPC 66. The registered owner of the vehicle lived at a different address than the address where the vehicle was found.

The fact the Mercedes was running also made the police decision to pull up behind the vehicle, so that it could not leave until they askeda few questions, a reasonable use of their authority to stop vehicles under the HTA and as part of carrying out their duties as justified byancillary police powers. I conclude the police did not arbitrarily detain Mr. Andom when they pulled up behind his Mercedes. They hadlawful authority to do so and it was a reasonable use of that authority. [23] Mr. Andom argues he was further arbitrarily detained when he was asked to exit his vehicle and sit on the ground behind hisvehicle.

The case law has recognized some interference with individual liberty can be justified, but each case must be carefully assessedto see whether the actions taken by police were reasonably necessary and proportionate to the liberty interfered with in the totality ofcircumstances, including considerations of the officer or others’ safety. (Clayton at paras. 30, 31). [24] The circumstances in R v Troester (ONCA) provides an example. A vehicle was stopped for speeding. Thepolice officer smelled an overwhelming smell of cologne.

The police officer had a cold so could not be sure if she smelled alcohol andthere was a passenger in the vehicle. She asked the driver to accompany her to the back of the police car. Once in the confines of thepolice car she smelled alcohol and made a breath demand. The court held it was a reasonable step in those circumstances to ask thedriver to enter the police vehicle. [25] In Clayton, the Supreme Court found it was reasonable, based on a call to 911 that there were a group of black men outside anightclub, and four had handguns “like glocks”, to stop all vehicles leaving the parking lot. Upon stopping Mr.

Clayton and Mr. Farmer,who matched the race reported by the 911 caller and making additional observations of suspicious behaviour, the police were justified indetaining and searching both occupants. The Court recognized the “fast-paced” situation required the police to respond to legitimatesafety concerns (at para. 53) [26] In this case, the police had already seen Mr. Andom rolling a large marihuana cigarette. Possession in a motor vehicle ofmarihuana was an offence under the HTA. I have accepted the evidence of Cst. Church as more accurately explaining the timing ofwhen Mr. Andom was asked to exit the vehicle.

Cst. Church was in the police car running checks on the identification of both the driverand the passenger when Cst. Thagard was dealing with the passenger at the Chevy Cruze. I accept Cst. Thagard’s evidence that havingMr. Andom out of the car allowed him to keep a clearer view of both the driver and the passenger. If the driver was left in the vehicle,his hands and lower body would not be clearly visible to Cst. Thagard. He would also have the ability to put his vehicle in motion beforethe police inquiries were completed. [27] Mr. Andom was not searched or otherwise touched.

This is a significant distinguishing feature between this case and thoserelied on by Mr. Andom, where persons were removed from the motor vehicle and physically searched before being put in the back of a

police car in the absence of specific concerns to justify these actions (R v Bercier 2003 MBQB 90, R v Power 2001 NFCA 50). I findthis was a minimal interference with Mr. Andom’s liberty and was proportionate in the circumstances. [28] I would come to the same conclusion, even if Cst. Thagard’s evidence was correct that he asked the driver to exit his vehiclewhen he went with the passenger to the Chevy Cruze. As Cst. Thagard explained, he was field training Cst. Church who was still inPhase One of the training. I accept some additional precautions could reasonably be taken due to the inexperience of Cst.

Church andthe fact she would be required to check the identification information in the police car in short order. Mr. Andom had been seen inpossession of marihuana in a vehicle so he would have to wait for the service of that offence notice. (An offence notice was later servedon him). I find asking Mr. Andom to wait outside his car, was a proportionate and reasonable step to take in the circumstances of thiscase. [29] In conclusion, Mr. Andom was detained when police pulled up behind his vehicle.

This detention was not arbitrary becausepolice had specific information about people in the vehicle smoking drugs amounting to reasonable suspicion. Police were allowed toapproach the car and ask some questions as permitted at common law by the ancillary police powers doctrine and as authorized by theHTA. The direction to Mr. Andom to exit the Mercedes once he was seen in possession of marihuana and while the passenger’sidentification was being dealt with was a reasonable and proportionate step in the circumstances and justified by concerns for theofficers’ safety so that Cst. Thagard could keep an eye on Mr.

Andom at the same time he was dealing with the passenger. The seizure of the firearm and whether it was an unreasonable search [30] Cst. Thagard called for another police unit for backup once the passenger was arrested because they knew now that thepassenger would be transported to the police station. They waited a short period of time for the backup units arrival. Once they arrived,Cst. Thagard together with Cst. Wiens went to the Mercedes to seize the marihuana which the driver had placed on the dashboard of thecar. Cst.

Thagard testified he had seen pieces of marihuana in other areas of the vehicle so he looked around the interior of the front ofthe Mercedes. As he did so, he saw the muzzle of a firearm sticking out from underneath the driver’s seat. Cst. Thagard arrested Mr.Andom for a “firearms offence or some similar offence”. [31] The initial application filed by Mr. Andom alleged the firearm was found pursuant to an illegal search. This position was notstrenuously pursued in oral argument, if I found the detention was not arbitrary.

I find the firearm was properly seized because it was inplain view when police were lawfully in the vehicle to seize the marihuana. S. 489 of the Code and common law provide authority forpolice seizures made of unlawful items in plain sight when police are lawfully in a place (see R v Frieburg (T.L.), 2013 MBCA 40). [32] Defence counsel maintained I should still make a negative assessment of Cst. Thagard’s credibility because the photographs ofthe firearm when it was still under the seat, are taken from a front angle and would not have allowed Cst.

Thagard to see the firearm if hewas looking down from the open car door. I do not find that to be the case. In my view, photograph number 4 does show the firearmsticking out from the underneath the seat and the photograph is taken looking down at the seat. I accept Cst. Thagard’s evidence that heimmediately recognized it because it looked like his police-issued firearm with which he would have had extensive experience. [33] I note parenthetically, from an objective point of view, s. 47(1) of the Provincial Offences Act (POA) would have permittedMr.

Andom to be arrested for the provincial offence of having marihuana in a motor vehicle. Once arrested for that offence, a morethorough search of the car incident to the arrest (R v Caslake, (SCC), [1998] 1 SCR 51, looking for more loosemarihuana, would inevitably have resulted in the finding of the firearm. Again, this supports my conclusion the police were not acting inthe absence of any lawful authority. [34] I find the firearm was lawfully seized at this point and not in breach of s. 8 of the Charter. The breach of the Right to Counsel [35] S. 10(

a) of the Charter requires police to advise detainees immediately of the reason for the arrest or detention. S. 10(

b) ofthe Charter guarantees to anyone arrested or detained the right "to retain and instruct counsel without delay and to be informed of thatright." [36] The duties imposed upon the police by s. 10(

b) were explained in R v Patrick, 2017 BCCA 299, para.51: The primary function of legal advice upon detention or arrest is to enable a suspect to make a meaningful choice about whether to speakwith police or to remain silent. That choice will only be meaningful if it is freely made and appropriately informed. Once engaged,s. 10(

b) imposes informational and implementational duties upon police officers. The informational component requires police to informthe detainee of the right to retain and instruct counsel without delay. The implementational component requires police to provide thedetainee with a reasonable opportunity to exercise the right, and to refrain from eliciting incriminatory evidence until he or she has hadthat opportunity or unequivocally waived the right: R v Suberu, 2009 SCC 33 at para. 38. [37] Mr.

Andom says his right to counsel was breached in two ways, the first when he was not advised of his right to counsel at thetime of his arrest and the second way when he was not given the opportunity to call counsel until he was at the police station and the callwas made at 1:09 am – a delay of over one and a half hours. In order to understand this position, it is helpful to return to the evidence. [38] Mr. Andom was arrested by Cst. Thagard at 11:10 pm for illegal possession of the firearm. Cst. Thagard then conducted asearch of Mr. Andom, incident to that arrest and handcuffed him. Cst.

Thagard escorted him to the cruiser car of Cst. Wiens and Cst.Huisman, who had arrived on scene at 11:00 pm. Cst. Thagard testified it was his position the responsibility for advising Mr. Andom ofhis right to counsel would be on the receiving unit. He explained he did not do it when he placed Mr. Andom under arrest because Mr.Andom was not yet in a fully safe position. He explained: I’ve seen in my career where people have run away in handcuffs, as well as there were – we were escorting him across the parking lot.

It’s not reasonable to be pulling out my notebook at that point and reading him as I’m walking him to the car, and I would not be able todocument it while I’m maintaining the accused and walking him over to the cruiser – to the other unit’s cruiser car. (Transcript p. T35) Cst. Thagard testified he understood “without delay” to mean as soon as “reasonably practicable.” (Transcript p. T36) [39] The Crown argues the time between the arrest by Cst. Thagard and Mr. Andom being placed in the back of Cst. Wiens’ policevehicle is “notoriously reasonable” as police conducted a pat down search, confirmed Mr.

Andom’s identity from Cst. Church and tookhim to the police vehicle. Defence counsel does not take issue with the Crown’s position for this time period. I agree with counsel. In Rv Debot, (SCC), 1989 2 SCR 1140, the Supreme Court confirmed police are allowed to assure their own and publicsafety before advising an arrestee of the right to counsel. In this case, a weapon, a concealed can of bear spray, had been found in theChevy Cruze. A muzzle of a firearm had been seen under the driver’s seat of the Mercedes. Mr. Andom had been seen in the unlawfulpossession of marihuana in the Mercedes.

It was reasonable for the police to conduct the search of Mr. Andom to assure their own andpublic safety. The 10-minute delay between his arrest and being placed in the back of the police car were necessary and do not amountto a breach of s. 10(b). [40] Cst. Wiens testified, he and his partner Cst. Huisman were dispatched to the scene at 10:53 pm. They arrived on scene at 11:00pm. When they arrived, he saw a male sitting behind a vehicle with Cst. Thagard standing beside that person. Cst. Church was in thepolice vehicle with a person in custody in that police vehicle. He was briefed by Cst.

Thagard on what had happened so far and the twoof them went to the Mercedes to seize the marihuana. It was at this time that Cst. Thagard advised him he saw the muzzle of a firearmsticking out from under the driver’s seat. He was present when Cst. Thagard arrested Mr. Andom, searched and handcuffed him, before he was placed in the back of Cst. Wiens’ cruiser at 11:20 pm. Cst. Wiens testified he advised Mr. Andom of his right to counsel at11:39 pm. He explained the delay in advising him of his right to counsel was because he did his own checks to verify Mr. Andom’sidentity. Cst.

Wiens testified he did not know exactly what the charges would be so he consulted with Cst. Thagard and the PatrolSergeant who had arrived on scene at 11:24 pm. The Patrol Sergeant ultimately advised him to place him under arrest for a firearmsoffence as they would have to check with the firearms specialist unit to determine the exact charges. When advised of his right tocounsel Mr. Andom said he wanted to call a lawyer. Cst. Wiens explained he could not provide access to counsel at the scene as he wasunable to provide Mr. Andom with privacy in order to have that call in the back of the police car. Cst.

Wiens was not asked any furtherquestions or otherwise challenged about access to a telephone at the scene. [41] The Crown conceded the 19-minute delay between 11:20 pm to 11:39 pm in telling Mr. Andom he had a right to consult withcounsel was a breach of his Charter right to be advised of the right to counsel without delay, which has been interpreted by the SupremeCourt to mean “immediately” (see Suberu at para. 41). There was a breach of the informational component of the right to counsel.

However, the Crown argued the time period following his being advised of his right to counsel, until the call was facilitated was justifiedby necessary duties at the scene and did not amount to a breach of the implementational duties imposed by s. 10(b). [42] The Ontario Court of Appeal in R v Rover 2018 ONCA 745 had the following to say about the implementational duties borneby the police: The s. 10(

b) jurisprudence has, however, always recognized that specific circumstances may justify some delay in providing a detaineeaccess to counsel. Those circumstances often relate to police safety, public safety or the preservation of evidence.

For example, in R vStrachan, (SCC), [1988] 2 SCR 980, [1998] SCJ No. 94, the court accepted that the police could delay providing accessto counsel in order to properly gain control of the scene of the arrest and search for restricted weapons known to be at the scene. (atpara.26). [43] In R v Taylor, the Supreme Court held the onus remains on Crown counsel to justify the delay in facilitating access to counseland whether a delay was justified is a factual inquiry (at para. 24) to be made in the specific circumstances before the court.

Asexplained in Patrick, practicalities must be taken into account (at para. 113). [44] Cst. Wiens testified he remained with Mr. Andom at the scene while his partner dealt with the seizure of the firearm. Cst.Wiens had no conversation with Mr. Andom while at the scene, following his advising Mr. Andom of his right to counsel. He testifiedhe was not able to transport Mr. Andom to the station by himself as it is procedure he and his partner work together. He testified therewere no other units on scene who could take Mr.

Andom to the police station, and he did not call or ask if any other units would beavailable to transport Mr. Andom. Cst. Wiens and his partner left the scene at 12:33 am. They arrived at the police station at 12:39 pm. Once at the police station, Mr. Andom and the evidence were removed from the car. Mr. Andom was searched again. Standardprocessing which included completing the prisoner log sheet were completed. This involved asking Mr. Andom questions to ensurethere were no physical and mental health concerns. Mr. Andom was viewed by a sergeant. Mr.

Andom was provided access to abathroom, given water and a blanket and placed in the interview room. At 1:05 am Mr. Andom confirmed he wanted to speak to counseland he spoke to counsel starting at 1:09 am to 1:31 am. [45] Cst. Huisman testified when he and his partner Cst. Wiens arrived on scene, he saw a male in custody in the police vehicle withCst. Church and saw Cst. Thagard standing near a male who was sitting on the ground. Cst. Huisman went to the police car and assistedCst. Church who had questions about how to run the computer checks. Starting at approximately 11:30 pm, he assisted Cst.

Thagard inconducting a search of both the Mercedes and the Chevy Cruze. Cst. Huisman was responsible for seizing the firearm and themarihuana. He testified once he was completed his duties at the scene, they left for the police station. Cst. Huisman and Cst. Thagardwere not questioned or challenged on the length of time it took to search, gather and process the evidence at the scene. At the policestation, Mr. Andom’s property was logged and his clothing was brought down to one layer. After being viewed by the sergeant, hispartner was responsible for facilitating the right to counsel. [46] Cst. Wiens’ and Cst.

Huisman’s credibility or the reliability of their evidence was not challenged. I have concluded there wasno breach of the implementation duty on police to facilitate access to counsel. I accept the officers’ evidence the time at the scene was

spent searching the vehicles and securing the evidence, duties which have been justified as necessary in other cases (see R v Ashby, 2013 BCCA 334 at paras. 71-73 ; R v Fan , 2017 BCCA 99 ). [ 47 ] The facts and findings in R v Nelson , 2010 ABCA 349 are instructive. The accused was arrested at an airport outside of Edmonton. The police took one and a half hours to retrieve Mr. Nelson’s luggage, secure a refund for the flight he had been about to board and transport him to downtown Edmonton.

The trial judge had found an implementation breach of the right to counsel because the Edmonton Police did not think to ask if the RCMP, who had a presence at the airport, might have a private room for Mr. Nelson to call counsel. The Court of Appeal doubted this amounted to a Charter breach: “The trial judge interpreted this immediacy requirement to mean that the arresting officers should have taken steps to ascertain if the RCMP facilities were available as soon as the appellant indicated that he wanted to speak with a lawyer.

We doubt that this was a Charter breach at all, as investigating what the RCMP had to offer might well have entailed further delays. There was no guarantee that the appropriate facilities existed, or if they did exist, that they were not required for RCMP purposes. People are not always arrested in locations where it is possible for police to implement access to counsel. The delay that was involved in this case was, in the circumstances, minimal and the police refrained from questioning the appellant until after he had a chance to meet with counsel of his choice face to face.

Immediacy does not mean instantaneous; practical considerations still play a role, particularly with respect to the police’s obligation to implement an arrested person’s contact with counsel (at para. 17).” Ultimately, the Court of Appeal had no difficulty with the trial judge’s decision to admit a statement provided by Mr. Nelson after his conversation with counsel, because there was no connection between the delay in his conversation with counsel and the statement provided after that conversation. [ 48 ] In R v Montgomery 2009 BCCA 41 , the accused and others were arrested in a parking lot.

The Court of Appeal upheld the trial judge’s decision the right to counsel was not breached when he was not allowed to call counsel at the scene due to safety concerns and the inability to provide privacy. One hour later when the accused was at the police station, the one phone room for calls to counsel only became available three hours later as other arrested persons were using the room. Counsel of choice returned the call to the accused another hour later.

The Court of Appeal upheld the trial decision this was as soon as reasonably practicable, in all of the circumstances and did not amount to a breach of the duty to facilitate access to counsel. Montgomery provides an example of how all the circumstances in an individual case must be assessed and in that case a delay of several hours was reasonable. [ 49 ] In the case before me, the police had located a loaded handgun in a vehicle in a public parking lot. In my view it was incumbent upon them to properly search the vehicles, document the seizures by taking photographs and seize the evidence.

I do not find it significant the officers in this case failed to call for another unit to transport Mr. Andom. I find this is similar to the failure by the police in Nelson to inquire with the RCMP if they might have facilities to access counsel. It is speculative to wonder if another police unit might have been available and would have been able to bring Mr. Andom to the police station any faster. The units already on scene had been assigned to the tasks of dealing with Mr. Andom, Mr. Tawald and the seizures. Perhaps, if they were going to be on scene for many more hours that would have become necessary.

As it was, the time on scene searching and processing weapons which otherwise would have posed a significant public danger, amounted to one hour. Mr. Andom was not questioned during this time. The time spent processing Mr. Andom at the police station was also reasonable and necessary in order to ensure he could be safely lodged with no danger to himself or others. The police giving him water and allowing him to use the bathroom were practical, reasonable and necessary so that physical discomfort did not interfere with his call to counsel.

In conclusion, I find the police did not breach their duty to facilitate access to counsel at the first reasonable opportunity. Should the firearm be excluded due to the breach of Mr.

Andom’s right to be advised of his right to counsel immediately? [ 50 ] The Supreme Court in R v Grant , 2009 SCC 32 set out three areas of inquiry in order to determine whether the admission of evidence would bring the administration of justice into disrepute: 1.) The seriousness of the Charter -infringing conduct; 2.) The impact of the breach on the Charter -protected interests of the accused; 3.) Society’s interest in an adjudication on the merits. [ 51 ] The seriousness of the breach of the right to counsel while significant is not at the serious end of the scale in this case because the breach arises from a delay rather than an outright denial of the right to counsel.

The reasons for the delay are also important to consider. Cst. Wiens testified he was hoping to get some more clarity as to exactly what charges would be brought against Mr. Andom so that he would know the proper extent of his jeopardy. The extent of his jeopardy would be helpful information for counsel to know. [ 52 ] The Crown points out Cst. Wiens, who was responsible for advising Mr. Andom of his rights, understood he had to do that immediately. Cst. Wiens was asked and answered questions in cross-examination about his thinking around the right to counsel in the following way: Q. Okay.

Now, you’re, of course, aware of your obligation to provide that right to counsel without delay; right?

A. Yes Q. Is this something that has slipped your mind during this time, or are you actively thinking, I need to provide him with his right to counsel, but I need to do these other things first? A. I am- I’m doing that, yes, and I want to try and get out the details of what we need as we’re doing it, for sure. To get him his right to counsel as soon as possible absolutely. Q. All right. A. But I also want to give him the most clear and concise charges as we possibly can at the time. (Transcript p. T86) [ 53 ] While a little misguided, the reason provided by Cst.

Wiens does not demonstrate a blatant disregard for Mr. Andom’s Charter rights. I also accept the Crown’s argument the nature of the firearm would impact the charges that could be laid – different charges would result from possession of a toy water gun, a pellet gun or an actual loaded firearm. With the benefit of 20/20 hindsight and knowing the delay did not ultimately lead to any more precision in the nature of the charges Mr. Andom would ultimately face, it is clear Mr. Andom should have been advised of his right to counsel as soon as he was in the back of the police vehicle.

This is clearly what the law requires. However, the explanation for the delay helps to explain and mitigate the seriousness of the breach. I accept Cst. Wien’s evidence he was aware he needed to provide the Charter rights without delay. [ 54 ] Counsel for Mr. Andom argued I should find Cst. Thagard’s evidence that he understood the advising of Charter rights should be done as soon as reasonably practicable and Cst. Church’s failure to immediately provide the passenger, Mr.

Tawald with the information about his right to counsel, should lead me to conclude this is a systemic or pattern of Charter infringing conduct by the police. The Crown points out Cst. Church’s evidence she now knows she should have provided the passenger with his rights immediately. Cst. Church testified, “It should have occurred immediately, I understand that. There were a lot of things that were going on. Again, I was field training at the time, so I was kind of following what my field trainer was kind of advising me to do, so ---” (Transcript p. T61). [ 55 ] Cst.

Thagard’s understanding of the informational component of the right to counsel is unfortunate and not accurate. Although, as I have already found, there is a small amount of leeway to ensure the Charter rights are provided when it is safe to do so. In talking about the implementational duties of the police to facilitate access to counsel, the British Columbia Court of Appeal in Patrick said (at para. 113 ): With respect, the trial judge was wrong to reject as misguided Cpl. Butler’s testimony that she was obliged to facilitate the respondent’s right to counsel “as soon as practicable”.

In Taylor , the court confirmed that the police have a duty to provide phone access to counsel “as soon as practicable” or “at the first reasonably available opportunity” (at paras. 24, 28). [ 56 ] I conclude Cst. Thagard’s understanding of when he should advise an arrestee of his Charter rights is not complete but may be a misunderstanding based on caselaw as to implementational duties of the right to counsel.

This does not give rise to the widespread systemic concerns where a deliberate decision to withhold or deny access to counsel led courts to categorize the breach as very serious, as in the cases provided by counsel for Mr. Andom. For example, in Rover where it was a police policy to withhold access to counsel for six hours after arrest, until a search warrant had been obtained and executed. Or as in R v Gessen, 2022 MBKB 210 , where a strip search was conducted as a matter of policy and access to counsel was deliberately delayed for seven hours after an arrest.

The evidence before me does not establish the types of systemic breaches shown by an entire police force, despite numerous cases where the immediacy requirement of the informational component of the right to counsel had been reinforced by courts in the same jurisdiction as seen in R v Bogdanic , 2023 ONCJ 358 (where police prioritized note-taking over the right to counsel) and R v Bullock , 2018 ONCJ 598 (where the police prioritized a thorough inventory search of a vehicle before advising the arrested person of his right to counsel).

I do not find evidence of systemic or a pattern of conduct by police which require a Court to distance itself from such flagrant Charter infringing conduct in this case. [ 57 ] Next, I consider the impact of the breach on the interests the Charter right to counsel is meant to protect. A primary purpose of the right to counsel is to be protect a person from self-incrimination ( Taylor at para. 21) so they can choose in an informed way whether they wish to cooperate with the police. The right to counsel also assists the accused in regaining their liberty. The impact on Mr.

Andom’s Charter - protected interests in this case is minimal because the gun was found before the breach occurred. While I recognize there is a temporal connection, such that I should conduct the 24(2) analysis, there is no causal connection. As noted by the Supreme Court in Grant at para. 122 , discoverability retains a useful role. The breach of the informational component of the right to counsel does not have an impact on Mr. Andom’s interests against self-incrimination, because the discovery of the firearm was not as a result of any statement made by Mr.

Andom. [ 58 ] And finally, in this case, as in almost all cases, society has a significant interest in an adjudication on the merits. Courts have repeatedly recognized the very serious danger loaded handguns pose to society (see Grant at para. 139 , R v Omar , 2018 ONCA 975 at para. 135 , overturned 2019 SCC 32 ).

As noted in Grant , “ exclusion of relevant and reliable evidence may undermine the truth- seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.” (at para. 81) [ 59 ] In balancing the three factors, I find the administration of justice would be brought into disrepute if I excluded the handgun seized by police. In this case the Charter breach occurred as the result of an unnecessary and misguided delay in advising Mr. Andom of his right to counsel but not a deliberate decision not to advise him of those rights.

The evidence existed prior to the breach and does not rely on any statement made by Mr. Andom. The offence before the Court is significant and is one in which the public has a significant interest in seeing an adjudication on the merits. The exhibits tendered during the voir dire can be admitted at the trial of this matter.

“Original signed by:” A. Krahn, P.J.