R. v. Arsenault, 2022 NSSC 149

SUPREME COURT OF Nova Scotia Citation: R. v. Arsenault , 2022 NSSC 149 Date: 20220520 Docket: CRH No. 507101 Registry: Halifax Between: Her Majesty the Queen v. Donald Francis Arsenault DECISION ON VOIR DIRE #1 Judge: The Honourable Justice Scott C. Norton Heard: April 4, 5, 2022, in Halifax, Nova Scotia Decision: May 20, 2022 Counsel: Stephen Anstey, for the Crown Ian Hutchison, for the Defendant NOTE: In reducing to writing the oral decision rendered in this matter, editing has taken place to include omitted citations and quotes from secondary sources and to make changes to format or to grammar for readability.

No changes have been made to the substantive reasons for decision. By the Court (Orally): [ 1 ] Donald Francis Arsenault is charged with 14 counts in an Indictment dated July 7, 2021, related to impaired operation of a motor vehicle and possession of a firearm. [ 2 ] Pursuant to

section 8 ,

section 10(

a) and

section 10(

b) of the Canadian Charter of Rights and Freedoms ( “ Charter ” ), Mr. Arsenault seeks an Order that his constitutional rights were violated and that a handgun obtained as a consequence be excluded as evidence. [ 3 ] With the agreement of counsel, the entirety of the evidence was received in a voir dire with the admissibility of that contested evidence to be determined by me at the conclusion. The evidence which I conclude is admissible will then form the evidence of the trial without the necessity of calling that evidence again.

Counsel requested, and I agreed, that I would make my decision on the contested evidence and then allow them time to consider how the trial would proceed. Facts [ 4 ] On August 3, 2019, at about 03:43 a.m., following a single vehicle accident on the Bedford Highway, in Halifax, Nova Scotia, Mr. Arsenault was arrested by Cst. Brent Woodworth of the Halifax Regional Police (“HRP”) for impaired operation of a motor vehicle and refusing to provide a breath sample. He was informed of the charges and advised of his right to consult legal counsel.

He was transported to police headquarters and provided with an opportunity to call his counsel of choice, Mr. Ian Hutchison, who was not available. He was put in contact with and spoke to legal aid duty counsel. A second demand was made for a breath sample which he refused. He was placed in a cell at 05:04. [ 5 ] Mr. Arsenault’s vehicle was damaged and had to be towed from the accident scene.

HRP Policy is that in such circumstances an inventory search is to be conducted to identify and take custody of any items of value in the vehicle to protect against loss or theft of such items and potential civil liability resulting. The Policy references

section 273 of the Motor Vehicle Act as the statutory authority. The tow truck operator arrived at the accident scene at 04:35 and used a device to unlock the pickup truck because the keys were at

police headquarters with Cst. Woodworth. Cst. Dianne Penfound performed the inventory search. At 05:25 she observed what appearedto be a handgun in the glove box. She did not touch the handgun and, per HRP Policy, advised her superior officers who dispatched twomembers of the Emergency Response Team (“ERT”) to make safe the handgun and take it into custody if it was a firearm. Shortlythereafter Cst. Woodworth was advised that a possible firearm had been located in the vehicle. At 06:25 the ERT members took custodyof the handgun and made it safe by removing the magazine and ejecting a bullet from the chamber.

They took the handgun to policeheadquarters and logged it into the property room between 06:45 and 07:30. [6] There was no warrant obtained to search the vehicle. [7] The HRP booking facility received a call from Mr. Hutchison at 08:52 advising that he was legal counsel for Mr. Arsenaultand that he wished to discuss the charges and release terms. The booking officer told him that he did not think Mr. Arsenault would bereleased due to a firearms charge. Mr. Hutchison then spoke with Mr. Arsenault. [8] At 10:51 the ERT members went to Mr. Arsenault’s cell and arrested him on nine new firearms related charges.

He wascautioned and given his right to consult legal counsel. He advised that he understood the charges and declined the opportunity to speakwith legal counsel. Positions of the Parties [9] The Crown says that the search of the vehicle was a lawful inventory search, and the gun is admissible in evidence. TheCrown admits there was a failure to promptly advise Mr. Arsenault of a change to his jeopardy but says that this was a technical breachand does not justify the handgun being excluded from evidence. [10] Mr.

Arsenault says that the gun should be excluded from evidence as it was obtained in breach of his constitutional rights. First, he says that the warrantless search of his vehicle was not authorized by law as an inventory search. In the alternative, he says thatonce the police discovered the gun, they should have obtained a search warrant. Third, once the gun was discovered, a new firearminvestigation was commenced that required the police to promptly advise Mr. Arsenault of a change in his jeopardy and to immediatelyadvise him of his right to counsel. Mr. Arsenault says that they failed to do both. Mr.

Arsenault says that the seizure of the gun istemporally, contextually and causally connected to the unlawful search of the vehicle and the violation of his right to counsel and shouldbe excluded from evidence. Issues: 1. Did the police violate Mr. Arsenault’s right under

section 8 of the Charter when the police conducted the search of histruck? 2. Did the police violate Mr. Arsenault’s rights under

section 10(

a) of the Charter by failing to inform him promptly of achange in his jeopardy when the police commenced the firearms investigation and under

section 10(

b) of the Charter by failing to advisehim of his right to counsel without delay violated when the police commenced the firearms investigation? 3. If Mr. Arsenault’s rights were violated, what is the appropriate remedy pursuant to section 24(2) of the Charter?

Section 8 [11]

Section 8 of the Charter states: 8. Everyone has the right to be secure against unreasonable search and seizure. [12] It is conceded that there was a warrantless search of Mr. Arsenault’s vehicle. Warrantless searches are prima facieunreasonable. As such, the burden is on the Crown to establish, on a balance of probabilities, that the search was lawful: R. v. Caslake (SCC), [1998] 1 S.C.R. 51, at para. 30. [13] To justify a warrantless search, the Crown must establish, on the balance of probabilities that (

i) the search was authorized bylaw; (ii) the law is reasonable; and (iii) the search was carried out in a reasonable manner: R. v. Collins (SCC), [1987] 1S.C.R. 265, at p. 278. [14] In this case, there was no challenge to the law being reasonable, nor any argument that the search was not carried out in areasonable manner. Under the first branch of the Collins test, “the state authority conducting the search must be able to point to aspecific statute or common law rule that authorizes the search. If they cannot do so, the search cannot be said to be authorized by law”:Caslake, at para. 12. [15] The Crown and Mr.

Arsenault referred to the companion cases from the Ontario Court of Appeal in R. v. Dunkley, 2016 ONCA597 and R. v. Ellis, 2016 ONCA 598 that summarize the law as to inventory searches. In Dunkley, Justice Hourigan, writing for theCourt said: 41 In the companion case R. v. Ellis, 2016 ONCA 598 (Ont. C.A.), I reviewed in detail the development of the law regardinginventory searches. I will not repeat that analysis here but will highlight what I believe to be the current state of the law. The law may besummarized as follows: (

i) The Supreme Court has declined to decide if there ought to be an inventory search exception under s. 8 of the Charter for theprotection of the accused's belongings, similar to an exception found in American law: Caslake, at para. 30. (ii) In conducting a s. 221(1) inventory search, the police have a responsibility to keep impounded property safe. In order to fulfill that

responsibility, they must have the authority to search and inventory the vehicle: R. v. Nicolosi (1998), (ON CA), 40O.R. (3d) 417 (Ont. C.A.) at paras. 29-30. (iii) The fact that the police may also have been looking for a weapon while conducting an inventory search under s. 221(1) does notrender the search unlawful: R. v. Wint, 2009 ONCA 52, 93 O.R. (3d) 514 (Ont. C.A.), at para. 11, leave to appeal ref'd (2009) 399 N.R.397 (note)(S.C.C.). (iv) In carrying out a s. 221(1) search, the police are not limited to itemizing visible property and have the authority to open bags or othercontainers in order to itemize the contents: Wint, at paras. 14-15. (

v) An inventory search is authorized by law where statutory authority for the search has been invoked (e.g. s. 221(1) of the HTA). Thecase law has been consistent that an inventory search of a vehicle will not be authorized by law and will therefore be unconstitutionalwhere there is no statutory authority invoked for the search (e.g. when it is conducted pursuant to an internal police policy): R. v. Nolet,2010 SCC 24, [2010] 1 S.C.R. 851, at para. 53; Nicolosi, at para. 34; and Caslake at para. 30. [16] Cst. Penfound testified that she conducted the inventory search pursuant to HRP Policy which referenced

section 273 of theNova Scotia Motor Vehicle Act, RSNS 1989, c.293, as amended, as the statutory authority.

Section 273 states: Seizure of vehicle involved in offence 273

(1) The Registrar, any official of the Department or any peace officer may seize a motor vehicle with which anoffence has been committed under this Act or under any

section of the Criminal Code (Canada) having particular relation to motorvehicles and may detain the same until the final disposition of any prosecution instituted for such offence but such motor vehicle may bereleased on such security for its production being furnished as the Registrar may require.

(2) Any peace officer may cause a vehicle parked in a tow-away zone or a no stopping zone to be removed andimpounded until claimed by the person in charge of the vehicle and

Section 275 shall apply to vehicles impounded under this subsection [Emphasis added] [17] I note that there are various provisions in the Motor Vehicle Act that allow a police office to take custody of a vehicle. Section158 is the provision most similar to the Ontario statutory authority considered in Dunkley and Ellis. In my view, it does not matter whichprovision of the Motor Vehicle Act is relied upon if it provides the police with statutory authority to seize the vehicle or take it intocustody. [18] Mr. Arsenault argues that

section 273 of the Motor Vehicle Act is not applicable to this case because the vehicle was released tohim without him having to make a payment or enter into a security arrangement with the Registrar. I disagree. The provision contains 3distinct parts. It provides a police officer with authority to seize a vehicle that has been involved in an offence committed under theMotor Vehicle Act or a

section of the Criminal Code relating to motor vehicles. There is no dispute that is the case here. The vehiclewas damaged and could not be left on the side of the road. The provision separately provides that the Registrar or police officer “maydetain” the vehicle until the final disposition of any prosecution. Here, that was not done; the vehicle was returned to Mr. Arsenault’scustody two weeks after the accident. In some cases it might be necessary for the vehicle to be detained until the disposition of theprosecution. It was not necessary here.

The return of the vehicle does not derogate from the authority to seize the vehicle in the firstinstance. The third part of the provision provides that if the vehicle had been detained, the release of the vehicle may be permitted uponterms satisfactory to the Registrar. As the vehicle was not detained, this process was not necessary. Again, the fact that this was notnecessary does not derogate from the authority in the

section to seize the vehicle. [19] Mr. Arsenault argued that upon discovery of the gun in the glove box, Cst. Penfound ended the inventory search and when theERT members arrived and made the gun safe and took it into custody, they were no longer performing an inventory search and shouldhave obtained a search warrant. [20] In my view, a more accurate characterization of what occurred is that Cst. Penfound conducted an inventory search and locateda gun in the glove box. Pursuant to HRP Policy, more experienced ERT members were tasked to make sure the gun was safe before itwas seized.

This is an issue of officer and public safety. I would characterize the inventory search as paused, not ended, while the ERTmembers were called in to make the gun safe. [21] In R. v. Wint, 2009, ONCA 93, the court found that in carrying out an authorized inventory search, the police are not limited toitemizing visible property and have authority to open bags or other containers in order to itemize the contents.

The court stated, at para.15: 15 Given the underlying rationale of inventory searches, to proceed in that fashion would render these searches virtually meaningless.Thus, if the police found a purse and could not look inside it, they would have no way of knowing whether it contained pennies orthousands of dollars and if the latter, what steps should be taken to safeguard the large sum of money. That, in our view, would defeatthe purpose of the exercise. In short, if inventory searches are to be meaningful and serve the purpose for which they are intended, thepolice cannot be hobbled as the appellant would suggest.

They must be able to search and itemize the contents of objects such as purses,wallets and bags like the one observed in this case, to determine their contents. Of course, any inventory search must be executed in areasonable manner and as is the case with other warrantless searches, reasonableness of police conduct will be judged against the totalityof the circumstances revealed in each case. 16 It follows that the search of the black bag and its contents, as well as the search of the CD case and its contents was entirelyreasonable and justified.

Indeed, the police would have been derelict in their duties had they not carried out the searches. [Emphasis added]

[22] As noted in Dunkley, supra, in conducting an inventory search, the police have a responsibility to keep impounded propertysafe. To fulfill that responsibility, they must have the authority to search and inventory the vehicle: R. v. Nicolosi. [23] Mr. Arsenault argues that Nicolosi, supra, is distinguishable on the basis that in that case the officer conducting the inventorysearch seized the firearm.

In my view, calling in the ERT members to make the gun safe, pursuant to HRP Policy, is a reasonable andprudent approach and does not derogate from the authority of the police to conduct the inventory search. [24] In conclusion, I find that the warrantless inventory search of the vehicle was justified and authorized by law. It therefore didnot violate Mr. Arsenault’s rights under

section 8 of the Charter.

Section 10(

a) and 10(b) – the right to be informed promptly of the reasons for detention or arrest and the right to be informed of theright to counsel without delay [25] Upon arrest or detention, the police must promptly advise an individual of the reasons why. This is so the individual fullyunderstands the extent of his jeopardy and allows the individual to make an informed decision if they wish to speak with counsel andparticipate in the police investigative process. The authorities make clear that these rights are interconnected and so will be consideredtogether. In R. v. Black, (SCC), [1989] 2 S.C.R. 138, Wilson J. stated at para 30: 30 Moreover, s. 10(

b) should not be read in isolation. Its ambit must be considered in light of s. 10(a).

Section 10(

a) requires thepolice to advise an individual who is arrested or detained of the reasons for such arrest or detention. The rights accruing to a personunder s.10(

b) arise because he or she has been arrested or detained for a particular reason. An individual can exercise his s. 10(

b) right ina meaningful way only if he knows the extent of his jeopardy. [26] In R. v. Evans (SCC), [1991] 1 S.C.R. 869 the police had initially arrested the accused on a drug relatedcharge. He had waived his right to counsel. The nature of the investigation changed to murder. The police did not formally inform theaccused that he was facing a new charge and did not reiterate his rights. McLachlin J., (as she then was), stated at paras. 47 and 48: 47 A second violation of the appellant's s. 10(

b) right occurred when the police failed to reiterate the appellant's right to counsel afterthe nature of their investigation changed, and the appellant became a suspect in the two killings. This Court's judgment in R. v. Black, perWilson J., makes it clear that there is a duty on the police to advise the accused of his or her right to counsel a second time when newcircumstances arise indicating that the accused is a suspect for a different, more serious crime than was the case at the time of the firstwarning.

This is because the accused's decision as to whether to obtain a lawyer may well be affected by the seriousness of the charge heor she faces. The new circumstances give rise to a new and different situation, one requiring reconsideration of an initial waiver of theright to counsel. On this point I prefer the judgment of R. v. Nelson (1982), (MB KB), 32 C.R. (3d) 256 (Man. Q.B.),to the decision in R. v. Broyles (1987), 1987 ABCA 222 , 82 A.R. 238 (C.A.).

I add that to hold otherwise leaves open thepossibility of police manipulation, whereby the police — hoping to question a suspect in a serious crime without the suspect's lawyerpresent — bring in the suspect on a relatively minor offence, one for which a person may not consider it necessary to have a lawyerimmediately present, in order to question him or her on the more serious crime. 48 I should not be taken as suggesting that the police, in the course of an exploratory investigation, must reiterate the right to counselevery time that the investigation touches on a different offence.

I do, however, affirm that in order to comply with the first of the threeduties set out above, the police must restate the accused's right to counsel when there is a fundamental and discrete change in the purposeof the investigation, one involving a different and unrelated offence or a significantly more serious offence than that contemplated at thetime of the warning. [Emphasis added] [27] In R. v. Sinclair, 2010 SCC 35, McLachlin C.J.C., and Charron J., for the majority, found that a change in jeopardy may requirethe police to advise a suspect of his right to counsel: D. The Right to Re-Consult Counsel (

a) Overview of the Jurisprudence 43 The authorities suggest that normally, s. 10(

b) affords the detainee a single consultation with a lawyer. However, they alsorecognize that in some circumstances, a further opportunity to consult a lawyer may be constitutionally required. These circumstances, asdiscussed more fully below, generally involve a material change in the detainee's situation after the initial consultation. 44 The "single consultation"

interpretation of s. 10(

b) was forcefully expressed in R. v. Logan (1988), (ON CA), 46C.C.C. (3d) 354 (Ont. C.A.). After reviewing the authorities, the court stated, at p. 381: The clear implication in the judgment of Lamer J. in Manninen is that s. 10(

b) confers the right, upon arrest or detention, to retain,instruct and be instructed by counsel before any statements of the accused are elicited. The worlds "upon arrest or detention" indicate apoint in time, not a continuum. They do not deal with a continuing right to be reinstructed before every occasion on which the policeobtain a statement from the accused. It is true that "retain" has a connotation of continuity (The Shorter Oxford English Dictionary(1973), p. 1813), but this is with respect to the engagement of services, i.e., the availability and subsequent resort to them when onewants to do so.

It does not express a prerequisite to every subsequent elicitation of information. [Underlining added.] 45 Many courts of appeal have agreed: see R. v. Wood (1994), 1994 NSCA 239 , 94 C.C.C. (3d) 193 (N.S.C.A.); R. v.Gormley (1999), (PE SCAD), 140 C.C.C. (3d) 110 (P.E.I.C.A., App. Div.); R. v. Baidwan, 2001 BCSC 1412, [2001]B.C.J. No. 3073 (B.C.S.C.), aff'd 2003 BCCA 351 (B.C.C.A.); R. v. Bohnet, 2003 ABCA 207, 111 C.R.R. (2d) 131 (Alta. C.A.); R. v.Anderson, 2009 ABCA 67, 243 C.C.C. (3d) 134 (Alta. C.A.); R. v. Weeseekase, 2007 SKCA 115, 228 C.C.C. (3d) 117 (Sask. C.A.). See

also, to the contrary, R. v. R. (P.L.) (1988), (NS CA), 44 C.C.C. (3d) 174 (N.S. C.A.); R. v. Osmond, 2007 BCCA470, 227 C.C.C. (3d) 375 (B.C. C.A.), per Donald J.A., leave to appeal refused, [2008] 1 S.C.R. xii (note) (S.C.C.); and R. v. Badgerow,2008 ONCA 605, 237 C.C.C. (3d) 107 (Ont. C.A.), per Simmons J.A. 46 This Court has not definitively pronounced itself on the matter, although it has recognized the need for a second opportunity toconsult counsel in situations where changed circumstances make this necessary: see Evans; R. v. Burlingham, (SCC),[1995] 2 S.C.R. 206 (S.C.C.); Black; R. v. Prosper, (SCC), [1994] 3 S.C.R. 236 (S.C.C.). We now turn to these cases. (

b) When a Right to Further Legal Consultation Has Been Upheld 47

Section 10(

b) should be interpreted in a way that fully respects its purpose of supporting the detainee's s. 7 right to choose whetheror not to cooperate with the police investigation. Normally, this purpose is achieved by a single consultation at the time of detention orshortly thereafter. This gives the detainee the information he needs to make a meaningful choice as to whether to cooperate with theinvestigation or decline to do so.

However, as the cases illustrate, sometimes developments occur which require a second consultation, inorder to allow the accused to get the advice he needs to exercise his right to choose in the new situation. 48 The general idea that underlies the cases where the Court has upheld a second right to consult with counsel is that changedcircumstances suggest that reconsultation is necessary in order for the detainee to have the information relevant to choosing whether tocooperate with the police investigation or not.

The concern is that in the new or newly revealed circumstances, the initial advice may nolonger be adequate. 49 The police, of course, are at liberty to facilitate any number of further consultations with counsel. In some circumstances, theinterrogator may even consider it a useful technique to reassure the detainee that further access to counsel will be available if needed. Forexample, in the companion case of R. v. Willier, 2010 SCC 37 (S.C.C.), a skilled interrogator commenced the interview by making itclear to the detainee that he would be free at any time during the interview to stop and call a lawyer.

The question here is when a furtherconsultation is required under s. 10(

b) of the Charter. For the purpose of providing guidance to investigating police officers, it is helpfulto indicate situations in which it appears clear that a second consultation with counsel is so required. The categories are not closed.However, additions to them should be developed only where necessary to ensure that s. 10(

b) has achieved its purpose. 1. New Procedures Involving the Detainee 50 The initial advice of legal counsel will be geared to the expectation that the police will seek to question the detainee. Non-routineprocedures, like participation in a line-up or submitting to a polygraph, will not generally fall within the expectation of the advisinglawyer at the time of the initial consultation. It follows that to fulfill the purpose of s. 10(

b) of providing the detainee with theinformation necessary to making a meaningful choice about whether to cooperate in these new procedures, further advice from counselis necessary: R. v. Ross, (SCC), [1989] 1 S.C.R. 3 (S.C.C.). 2. Change in Jeopardy 51 The detainee is advised upon detention of the reasons for the detention: s. 10(a). The s. 10(

b) advice and opportunity to consultcounsel follows this. The advice given will be tailored to the situation as the detainee and his lawyer then understand it. If theinvestigation takes a new and more serious turn as events unfold, that advice may no longer be adequate to the actual situation, orjeopardy, the detainee faces. In order to fulfill the purpose of s. 10(b), the detainee must be given a further opportunity to consult withcounsel and obtain advice on the new situation. See Evans and Black. [28] In the present case, Mr.

Arsenault was detained and arrested on impaired driving and refusal charges and informed of his rightto counsel. That right was implemented when Mr. Arsenault consulted with the legal aid duty counsel. [29] Although the gun was discovered in the glove box at 05:25, it was not identified as a firearm until 06:25 when it was made safeand seized by Cst. Trudel. At that point in time Mr. Arsenault was detained on a firearm investigation and the police had a duty toinform him of the change to his jeopardy. They did advise his legal counsel, Mr. Hutchison, at 08:52 that he was being detained withrespect to a firearm.

They did not inform Mr. Arsenault directly until they arrested him at 10:51. [30] The Crown concedes that there was a violation of Mr. Arsenault’s

section 10(

a) rights when he was not advised promptly ofthe change in jeopardy. The Crown characterizes the violation as being a technicality. The Crown says that until the gun was identifiedas a firearm at 06:25 Mr. Arsenault’s jeopardy had not changed. His lawyer was informed at 08:52 of this change in jeopardy. Thus, hewas detained for 2 hours and 27 minutes before he was informed of the change in jeopardy. [31] Mr. Arsenault concedes that no attempt to interview him or elicit evidence from him occurred before he was informed of thefirearm investigation. [32] With regard to the right to counsel under

section 10(

b) of the Charter, the Crown argues that the cases do not speak to thetiming as to when, after a change in jeopardy, the person detained and initially advised of his right to counsel must be informed of theright to reconsult counsel. The Crown submits that it must be done within a reasonable time. The Crown relies on the following passagefrom the majority in Sinclair, supra, at para. 53: 53 The general principle underlying the cases discussed above is this: where a detainee has already retained legal advice, theimplementational duty on the police under s. 10(

b) includes an obligation to provide the detainee with a reasonable opportunity to consultcounsel again where a change of circumstances makes this necessary to fulfill the purpose of s. 10(

b) of the Charter of providing thedetainee with legal advice on his choice of whether to cooperate with the police investigation or decline to do so. [Emphasis added] [33] Mr. Arsenault rejects this

interpretation. He argues that the Charter right is explicit that he is entitled to retain and instruct

counsel without delay and to be informed of that right. [34]

Section 10(

b) has two components: an informational component and an implementational component. These are described bythe majority in Sinclair, supra, as follows: 26 The purpose of the right to counsel is “to allow the detainee not only to be informed of his rights and obligations under the law, butequally if not more important, to obtain advice as to how to exercise those rights”: R. v. Manninen, (SCC), [1987] 1S.C.R. 1233 (S.C.C.), at pp. 1242-43. The emphasis, therefore, is on assuring that the detainee's decision to cooperate with theinvestigation or decline to do so is free and informed.

Section 10(

b) does not guarantee that the detainee's decision is wise; nor does itguard against subjective factors that may influence the decision. Its purpose is simply to give detainees the opportunity to access legaladvice relevant to that choice. 27

Section 10(

b) fulfills its purpose in two ways. First, it requires that the detainee be advised of his right to counsel. This is called theinformational component. Second, it requires that the detainee be given an opportunity to exercise his right to consult counsel. This iscalled the implementational component. Failure to comply with either of these components frustrates the purpose of s. 10(

b) and resultsin a breach of the detainee's rights: Manninen. Implied in the second component is a duty on the police to hold off questioning until thedetainee has had a reasonable opportunity to consult counsel. The police obligations flowing from s. 10(

b) are not absolute. Unless adetainee invokes the right and is reasonably diligent in exercising it, the correlative duties on the police to provide a reasonableopportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended: R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435 (S.C.C.), at p. 439, and R. v. Black, (SCC), [1989] 2 S.C.R. 138 (S.C.C.), at pp. 154-55. 28 Once informed of his right to consult counsel, the detainee may waive the right, deciding not to avail himself of the opportunity toconsult that has been provided.

The right to choose whether to cooperate with the police, the basic purpose of s. 10(b), has been respectedin the event of a valid waiver, and there is consequently no breach. [Emphasis added] [35] Understanding this purpose of

section 10(

b) is necessary for an analysis into the timing required for a second consultation withcounsel arising from a change in jeopardy. As stated in Manninen, supra, “The words ‘upon arrest or detention’ indicate a point in time,not a continuum”. In Sinclair, supra, the Supreme Court distinguishes between the implementation component and the consultationalcomponent of

section 10(

b) in cases where new procedures are invoked or changes in jeopardy occur. There is no requirement to advisethe accused again of the right to consult counsel, particularly when it has been exercised.

There is a requirement to provide a reasonableopportunity to consult again with counsel and to refrain from eliciting evidence until that opportunity is provided. [36] I refer to paragraph 57 of the majority decision in Sinclair: 57 As we see it, an approach which would require that questioning be suspended pending a reasonable opportunity to consult furtherwith counsel whenever there is "objective support" to think that the detainee may require further legal advice is not sufficientlyconnected to the purpose of ensuring that the detainee remains properly advised about to how to exercise his or her rights.

It is assumedthat the initial legal advice received was sufficient and correct in relation to how the detainee should exercise his or her rights in thecontext of the police investigation. The failure to provide an additional opportunity to consult counsel will constitute a breach of s. 10(b)only when it becomes clear, as a result of changed circumstances or new developments, that the initial advice, viewed contextually, is nolonger sufficient or correct. This is consistent with the purpose of s. 10(

b) to ensure that the detainee's decision to cooperate with thepolice or not is informed as well as free. [Emphasis added] [37] In R. v. Taylor, 2014 SCC 50, the court confirmed the duty to facilitate access to counsel arises immediately upon the arrestee’srequest to speak to counsel and that the burden is on the Crown to show that any delay was reasonable in the circumstances.

JusticeAbella, for the Court, stated, at para. 24: 24 The duty to inform a detained person of his or her right to counsel arises “immediately” upon arrest or detention (Suberu, at paras.41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee's request to speak to counsel. Thearresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonablyavailable opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v.

Luong (2000),2000 ABCA 301 , 271 A.R. 368, at para. 12 (Alta. C.A.)).

Whether a delay in facilitating access to counsel is reasonable is afactual inquiry. [Emphasis added] [38] The question is therefore whether the delay of 2 hours and 27 minutes before being given an opportunity to consult again withlegal counsel is unreasonable. [39] In Taylor, supra, the Court provided this further instruction: 28 But the police nonetheless have both a duty to provide phone access as soon as practicable to reduce the possibility of accidentalself-incrimination and to refrain from eliciting evidence from the individual before access to counsel has been facilitated.

While s. 10(b)does not create a “right” to use a specific phone, it does guarantee that the individual will have access to a phone to exercise his right tocounsel at the first reasonable opportunity. [40] In considering this issue, the emphasis is on assuring that the detainee's decision to cooperate with the investigation or declineto do so is free and informed. It is also, as noted in Taylor, to reduce the possibility of accidental self-incrimination. [41] In R. v. Cater, 2019 NSSC 302, Justice Jamieson considered

section 10(

b) in the context of a factual finding that police

intentionally delayed his request to speak to counsel of choice for 1 hour and 42 minutes. Justice Jamieson stated at para. 59: [59] Once the arrestee asserts his right to counsel then the implementation duty of the police is triggered. Did the police provide Mr. Cater with a reasonable opportunity to exercise the right? Do the circumstances, viewed as a whole, indicate that Mr. Cater required more than the initial call to duty counsel to fulfill the purpose and intent of s. 10(b)? Should Mr. Cater have been afforded a reasonable opportunity to contact counsel of his choice after the call with duty counsel?

I find, in the circumstances of this matter, police did not provide Mr. Cater with a reasonable opportunity to exercise his right to counsel of choice because police intentionally delayed his request to speak to counsel of choice for one hour and 42 minutes. [ 42 ] The facts in this case are distinguishable from Sinclair , Taylor and Cater . In this case, there was no attempt by police to speak with Mr. Arsenault during this period of delay. There was no attempt to obtain physical evidence from him. No discoverability issues arise. He continued to be lawfully detained on the other charges.

In the unique circumstances of this case, I find that the purpose of

section 10(

b) as described in Sinclair were satisfied when Mr. Arsenault spoke with Mr. Hutchison. The police are entitled to assume that the advice received is adequate unless the detainee indicates otherwise: R. v. Willier , 2010 SCC 37 . [ 43 ] Accordingly, I conclude that Mr. Arsenault’s rights under

section 10(

b) were not violated. Section 24(2) – remedy [ 44 ] The Crown conceded that there was a breach of Mr. Arsenault’s

section 10(

a) rights. Under section 24(2) of the Charter , evidence obtained in a manner that infringed or denied Charter rights will be excluded if it is established that having regard to all of the circumstances, the admission of the evidence would bring the administration of justice into disrepute. Mr. Arsenault has the burden to show that the evidence should be excluded. [ 45 ] The Supreme Court of Canada articulated the test for this analysis in R. v. Grant , 2009 SCC 32 , at paras. 67-71 : 67 The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice.

The term "administration of justice" is often used to indicate the processes by which those who break the law are investigated, charged and tried. More broadly, however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole. 68 The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, 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. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter , would conclude that the admission of the evidence would bring the administration of justice into disrepute. 69 Section 24(2)'s focus is not only long-term, but 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. 70 Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns.

The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system. 71 A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages 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.

When faced with an application for exclusion under s.24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins , capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence. [Emphasis added] [ 46 ] In R. v.

Côté , 2011 SCC 46 , the Supreme Court of Canada made the following comments at paras. 47-48: [ 47 ] The first line of inquiry involves an evaluation of the seriousness of the state conduct. The more serious the state conduct constituting the Charter breach, the greater the need for courts to distance themselves from that conduct by excluding evidence linked to the conduct. The second line of inquiry deals with the seriousness of the impact of the Charter violation on the Charter - protected interests of the accused.

The impact may range from that resulting from a minor technical breach to that following a profoundly intrusive violation. The more serious the impact on the accused’s constitutional rights, the more the admission of the evidence is likely to bring the administration of justice into disrepute. The third line of inquiry is concerned with society’s interest in an adjudication on the merits. It asks whether the truth-seeking function of the criminal process would be better served by the admission or exclusion of the evidence.

The reliability of the evidence and its importance to the prosecution’s case are key factors. Admitting unreliable evidence will not serve the accused’s fair trial interests nor the public’s desire to uncover the truth. On the other hand, excluding reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public’s perspective. The importance of the evidence to the Crown’s case is corollary to the inquiry into reliability.

Admitting evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the whole of the prosecution’s case, but excluding highly reliable evidence may more negatively affect the truth-seeking function of the criminal law process where the effect is to “gut” the prosecution’s case.

[48] After considering these factors, a court must then balance the assessments under each of these avenues of inquiry inmaking its s. 24(2) determination. There is no “overarching rule” that governs how a court must strike this balance (Grant, at para. 86). Rather, “[t]he evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all thecircumstances, admission of the evidence would bring the administration of justice into disrepute” (Harrison, at para. 36). No oneconsideration should be permitted to consistently trump other considerations.

For instance, as this Court explained in Harrison, theseriousness of the offence and the reliability of the evidence should not be permitted to “overwhelm” the s. 24(2) analysis because this“would deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under theCharter and, in effect, declare that in the administration of the criminal law ‘the ends justify the means’” (para. 40, citing 2008 ONCA85, 89 O.R. (3d) 161, at para. 150, per Cronk J.A., dissenting).

In all cases, courts must assess the long-term repute of the administrationof justice. [47] I note that substantially all of Mr. Arsenault’s submissions on remedy were premised on the breach of his

section 8 and section10(

b) rights under the Charter, which I did not find. Regardless, Mr. Arsenault requests that the Court exclude all evidence from thetruck obtained as a consequence of the

section 10(

a) Charter violation. The Crown agreed that in light of the decision in R. v. Pino, 2016ONCA 389, the seizure of the firearm, despite it being discovered prior to the

section 10(

a) breach, can be considered under the rubric of“obtained in a manner” and that a section 24(2) analysis is required. However, the Crown asserts that the connection between the breachand the firearm is merely temporal and contextual but is in no way causal.

(1) The seriousness of Charter-infringing state conduct [48] The first branch of the Grant analysis was commented upon by the Supreme Court of Canada in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 22: [22] At this stage the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence.Did it involve misconduct from which the court should be concerned to dissociate itself?

This will be the case where the departure fromCharter standards was major in degree, or where the police knew (or should have known) that their conduct was not Charter-compliant.On the other hand, where the breach was of a merely technical nature or the result of an understandable mistake, dissociation is muchless of a concern. [Emphasis added] Mr. Arsenault asserts that delay in advising him of a change in his jeopardy was serious. For several hours the police violated his right tobe informed of the change in his jeopardy and that his detention was in part due to the firearm investigation.

With respect, I disagree. Mr. Arsenault was lawfully detained on the impaired and refusal charges. While he should have been advised of the firearminvestigation promptly after the firearm was seized at 06:25, he was not subjected to any questioning, nor was there any seizure ofphysical evidence from him before his call with counsel at 08:52. I agree with the Crown that these circumstances present a breach of atechnical nature. There is no evidence that this was intentional or tactical in any way on the part of the police. Unlike the circumstancesin Cater, it was not a significant or deliberate violation. Mr.

Arsenault had been cautioned, notified of his right to consult counsel, andprovided with the opportunity to consult with counsel at the time he was first brought to the police station. The discovery of the gun wastemporally and contextually connected to the infringement but was not causally connected. The firearm was discovered independentlyfrom the infringement, not as a result of it.

This is unlike Grant, where the firearm was derivative evidence because it was discovered asa result of statements taken in breach of the Charter. [49] I find that admission of the evidence in the circumstances of this case will not send the message that the justice systemcondones serious state misconduct. I conclude that this factor weighs in favour of the inclusion of the evidence.

(2) Impact on Charter-protected interests of the accused [50] The police made no effort to interview Mr. Arsenault in the timeframe between the firearm being seized and notification of hiscounsel as to the change in his jeopardy. There was no attempt to obtain inculpatory statements. The police did not breach theirobligation not to elicit information from Mr. Arsenault before he was able to speak with his lawyer. I do not find that the delay inimplementing Mr. Arsenault’s right to be informed had a significant impact on his Charter-protected interests.

I find that the admissionof the evidence obtained from the pickup truck in the circumstances of this case will not send the message that individual rights count forlittle. The second Grant factor weighs in favor of inclusion of the evidence.

(3) Societies Interest in a trial on the merits [51] Mr. Arsenault concedes that society’s interest in a trial on its merits may favour admission of the evidence. Whether evidenceought to be admitted will largely turn on the reliability of the evidence and its importance to the Crown’s case: Harrison, supra. [52] In this case the evidence is physical and therefore reliable (Grant, supra) and is primary evidence for the Crown’s case. Therefore, society’s interest in a trial on the merits favours admission of the evidence obtained.

The offence is a serious offence,however that issue has the potential to cut both ways. “While society has an interest in seeing serious offences prosecuted, it has anequivalent interest in ensuring that the justice system is above reproach, particularly where the stakes are high for the accused person”:(Côté). [53] I conclude that this factor favours admission of the evidence. Balancing Exercise [54] As I have found that all three factors in the Grant analysis favour admission of the evidence, I conclude that the evidenceobtained from the search of the vehicle should not be excluded under section 24(2).

Norton, J.