) ) HER MAJESTY THE QUEEN Respondent – v. –, 2017 ONSC 928

CITATION : R. v. Taylor, 2017 ONSC 928 COURT FILE NO.: 811/16 DATE: 20170207 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN Respondent – and – BRITTANY TAYLOR Applicant ) ) ) ) ) ) ) ) ) ) Denys Bradley, for the Crown. Michael Haraschuk and Renee Gregor, for the Applicant. ) ) HEARD: December 21, 22, 23, 2016 r. d. gordon, r. s.j. Overview [ 1 ] Brittany Taylor is charged with possession of fentanyl for the purpose of trafficking. The drugs were discovered when the police searched her bedroom. While the search was being conducted Ms.

Taylor made an inculpatory statement and showed the police the location of the drugs. Following her arrest she was fingerprinted and her prints were matched to a print found on one of the fentanyl patches. [ 2 ] Counsel for Ms. Taylor has brought a Charter application seeking the exclusion of her statements and the evidence uncovered during the search. The Application alleges four sets of Charter violations:

(1) That the search of Ms. Taylor’s bedroom was unreasonable and contrary to

section 8;

(2) That there was no reasonable and probable grounds for Ms. Taylor’s arrest with the result that she was unlawfully detained;

(3) That the use of Ms. Taylor’s fingerprints in the prosecution of this offence constitutes a breach of sections 7, 8, 11(

c) and 11(

d) of the Charter ; and

(4) That her rights to silence, right against self-incrimination, and right to counsel were breached when the police failed to immediately advise her of her right to counsel and sought information from her notwithstanding her desire to contact counsel, all contrary to Sections 7, 10(

a) and 10(

b) of the Charter . Background Facts [ 3 ] During the month of May 2015, police received information from three separate confidential informants that Ms. Taylor was “stashing” fentanyl in her residence for a black male from Toronto known by the name of “Junior”. The police initiated an investigation which included surveillance of Ms. Taylor’s residence and eventually applied for and were granted a search warrant under the Controlled Drugs and Substances Act (“the CDSA ).

The warrant authorized a search of the residence at 21 Hearne Avenue, Sudbury, Ontario. [ 4 ] The search warrant was executed in the early morning hours of May 27. Police knocked on the door and were granted entry by Ms. Taylor’s mother who showed them to Ms. Taylor’s bedroom on the second floor. Ms. Taylor was located in her bedroom and was arrested by Cst. Kelly for possession of fentanyl for the purpose of trafficking. A short time later Cst. Larochelle advised Ms. Taylor of her right to counsel and caution. [ 5 ] Ms. Taylor seemed to have some difficulty understanding her rights. Cst.

Larochelle had to explain her right to counsel several times and asked if she wished to speak to a lawyer. She responded: “I don’t have one”. Cst. Larochelle advised her that there would be a list of lawyers at the police station that she could choose from and she responded “okay”. When he read the standard caution to her, she replied “I have nothing to say”. [ 6 ] Cst. Larochelle continued to engage Ms. Taylor, advising her that the entire house would be searched and that her mother could be charged with possession of any fentanyl found in a common area. He asked Ms.

Taylor to take ownership of the drugs and eventually she indicated they were in her bedroom. She was then taken upstairs to the bedroom and gestured towards the bottom of the bedroom closet. Cst. Pagnutti was in the process of searching that same closet when Ms. Taylor indicated where the drugs would be located. He found 60 fentanyl patches. Each patch was 100 micrograms. The drugs were found in two places: in an older cellular phone box inside a garment bag, and within a silk nylon makeup bag in that same garment bag.

[7] Ms. Taylor’s thumbprint was found on one of the fentanyl patches. Was the Search Unlawful? The Applicable Law [8]

Section 8 of the Canadian Charter of Rights and Freedoms provides that everyone has the right to be secure againstunreasonable search and seizure. [9] Ms. Taylor’s bedroom was searched under authority of a search warrant issued pursuant to

section 11 of the ControlledDrugs and Substances Act. The warrant was issued on the basis of an Information to Obtain (the “ITO”) submitted by Constable JoshKelly of the Great Sudbury Police Service. [10] The accused challenges the validity of the search warrant on the basis that Cst. Kelly failed to undertake a full investigationrelative to the facts in the ITO, did not provide full and frank disclosure and made statements of fact which were erroneous. [11] In the case of R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, the Supreme Court of Canada provided the following

summaryof the review process: [39] Under the Charter, before a search can be conducted, the police must provide “reasonable and probable grounds, establishedupon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search” (Hunter v.Southam Inc., (SCC), [1984] 2 S.C.R. 145, at p. 168).

These distinct and cumulative requirements together form part ofthe “minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure” (p. 168). [40] In reviewing the sufficiency of a warrant application, however, “the test is whether there was reliable evidence that mightreasonably be believed on the basis of which the authorization could have issued” (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, atpara. 54 (emphasis in original)).

The question is not whether the reviewing court would itself have issued the warrant, but whether therewas sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that anoffence had been committed and that evidence of that offence would be found at the specified time and place. [41] The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. Rather, “the reviewing court must exclude erroneous information” included in the original ITO (Araujo, at para. 58).

Furthermore, thereviewing court may have reference to “amplification” evidence – that is, additional evidence presented at the voir dire to correct minorerrors in the ITO – so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberateattempts to mislead the authorizing justice. [42] It is important to reiterate the limited scope of amplification evidence, a point well-articulated by Justice LeBel in Araujo.

Amplification evidence is not a means for the police to adduce additional information so as to retroactively authorize a search that wasnot initially supported by reasonable and probable grounds.

The use of amplification evidence cannot in this way be used as “a means ofcircumventing a prior authorization requirement” (Araujo, at para. 59). [43] Rather, reviewing courts should resort to amplification evidence of the records before the issuing justice only to correct “someminor, technical error in drafting of their affidavit material” so as not to “put form above substance in situations where the police had therequisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made” such errors (para.59).

In all cases, the focus is on “the [page 273] information available to the police at the time of the application” rather thaninformation that the police acquired after the original application was made (para. 59). [12] When assessing the reliability of evidence obtained from police informants the court is to consider whether the evidence iscompelling, whether the source of the evidence is credible, and whether the evidence has been corroborated by police investigation [seeR. v.

Debot (SCC), [1989] 2 S.C.R. 1140]. [13] The reliability of evidence in an ITO may also be brought into question by consideration of other facts which were known tothe affiant or ought to have been known by him, but were omitted from the ITO [see R. v. Aruajo, 2000 SCC 65 , [2000] 2S.C.R. 992 and R. v. Bisson, (SCC), [1994] 3 S.C.R. 1097]. [14] In

summary, the function of the reviewing judge is to determine whether there is any evidence remaining, after disregardingthe allegations found to be false and taking into consideration the facts found to have been omitted by the affiant, upon which the justiceof the peace could be satisfied that a search warrant should issue. [See Re Church of Scientology and the Queen (No. 6), (1987) 31C.C.C. (3d) 449 (Ont. C.A.)]. The Contents of the Information to Obtain [15] The Information to Obtain submitted by Cst.

Kelly contained references to three confidential informants, surveillanceevidence, NICHE searches, and a Facebook search. The information attributed to each such source of evidence is summarized below. Confidential Informant #1 (CI1)

[ 16 ] The ITO describes CI1 as a person familiar with the drug trade who has consumed illegal substances and who has provided information in the past that resulted in 6 CDSA warrants, 5 CDSA street arrests and one Criminal Code warrant where a firearm was recovered. Although Cst. Kelly did not represent and was unaware if any convictions resulted from past information provided by CI1, he indicated that in each circumstance the information provided was found to be accurate and reliable. [ 17 ] In May of 2015 Cst.

Kelly spoke to CI1 and received information that “Brittany” lives with her parents at 21 Hearne Street in Sudbury; that she is in possession of fentanyl that she keeps for a black male party known as “Junior”; that CI1 was present in Brittany’s residence in May 2015 and had observed her to be in possession of fentanyl patches that she had retrieved from the upstairs portion of the residence; that CI1 has observed another person attend and purchase fentanyl patches from “Junior”; that “Junior” is a short, thin black male from the Toronto area who is dating Missy Mills; that Missy Mills lives across the street from Brittany and “Junior” attends Brittany’s house to get more fentanyl patches; that “Junior” has chosen to stash his fentanyl at Brittany’s house because very few people in the drug subculture know who she is.

CI1 also provided information that Sue Mills and her daughter Crystal Mills were selling fentanyl patches out of the rear apartments and rear laneway at 248 Frood Road. [ 18 ] Subsequently, CI1 provided additional information that “Junior” was in possession of a quantity of fentanyl and had brought them to Brittany’s to stash them. CI1 then described Brittany as a thin short female with long dark hair, in her early twenties, and appearing to be part native. Confidential Informant #2 (CI2) [ 19 ] In May of 2015 D. Cst. Larochelle received information from CI2 that he related to Cst.

Kelly. [ 20 ] CI2 was described as being familiar with the packaging, pricing and distribution of illicit substances; someone who has consumed such substances; and someone who was providing information for the first time. [ 21 ] CI2 provided information that a person named “Brittany” is a stash house for “Junior”, that she lives at 21 Hearne Street, that “Junior” is a black guy who is dating Missy Mills and is dealing patches, that Brittany lives across the street from Missy, and that “Junior” drives a black Mitsubishi. Confidential Informant #3 (CI3) [ 22 ] In May of 2015 D. Cst.

Rinaldi received information from CI3 that he related to Cst.

Kelly. [ 23 ] CI3 was described as being familiar with the packaging, pricing and distribution of illicit drugs; someone who has used illicit substances; and someone who was providing information for the first time. [ 24 ] CI3 provided information that Brittany Taylor lives at 21 Hearne Avenue, that she lives with her mother and has a room on the top floor, that she stashes all the fentanyl patches for “Junior”, that Brittany is native, with dark hair, skinny and in her twenties, that “Junior” is dating a girl named Missy and that he is a young black male approximately 5’6’’.

CI3 has observed fentanyl in Brittany’s residence. [ 25 ] The ITO indicates that one of the confidential informants personally observed the fentanyl in Ms. Taylor’s possession within the previous 24 hours. Surveillance [ 26 ] At 11:20 p.m. on May 5, 2015 Cst. Kelly began surveillance in the area of Susan Mills’ residence at 248 Frood Road. He observed various unknown parties and vehicles attend the rear laneway at this location, consistent with CI1’s information that Susan and Crystal Mills were selling drugs from that location.

At 12:18 a.m. on May 6 a dark coloured Mitsubishi with License Plate BRFP385 attended in the rear laneway. The driver got out and was noted to be a short black male with a thin to average build and short hair. He was observed speaking with Crystal Mills before they left together and attended multiple addresses where they stayed only briefly. This activity was consistent with the sale of drugs. [ 27 ] On May 7, 2015 at 5:55 p.m. Cst. Kelly attended the area of 20 Hearne Street and observed the black Mitsubishi with license plate BRFP385 enter the driveway.

The driver got out of the vehicle and matched the description of “Junior” provided by CI1 and the black male he had seen operating the vehicle on May 6. An attempt to keep surveillance on this male failed when he left and employed anti-surveillance techniques. [ 28 ] On May 26, D. Cst. Jefferson observed Brittany Taylor leave the residence at 21 Hearne Avenue in Sudbury at 4:12 p.m. [ 29 ] On May 26, D. Cst. Larochelle observed Brittany Taylor and Jessica Chartrand leave an apartment at 27 Bruyere Street in Sudbury and attend at Melvin’s Variety Store. Ms.

Chartrand is known to be involved in the drug subculture in Sudbury. Ms. Taylor was observed on her cell phone pacing back and forth outside of the store. At about 8:08 p.m. a grey four door Hyundai car attended and picked up both Ms. Chartrand and Ms. Taylor. Two minutes later Ms. Taylor was dropped off at a parking lot off Humber court, a short distance from her residence at 21 Hearne Ave. She then walked to and entered her residence and left again about three minutes later, returning to the same vehicle.

The car departed and conducted several anti-surveillance techniques, including U-turns, stopping at the side of the road, and periodically driving extremely slow. At 8:34 p.m. the vehicle went to 511 Lasalle Blvd. and waited in the rear parking lot. Seconds later an unknown white male attended the driver side door for a brief moment and the car then left. [ 30 ] At 8:52 p.m. the car went to the Subway restaurant parking lot at 1133 Notre Dame Ave in Sudbury. Jason Lyttle, a known fentanyl user, was observed to approach the vehicle for seconds before departing.

He was then observed at the rear of a nearby business and appeared to be smoking a fentanyl patch. [ 31 ] At 9:11 p.m. the car returned to 27 Bruyere Street and both Ms. Taylor and Ms. Chartrand entered apartment #2.

NICHE Checks [ 32 ] Cst. Kelly completed NICHE checks on May 26, 2015 which revealed that Brittany Taylor had a birth date of January 20, 1994 and was associated with the address of 21 Hearne Avenue as recently as December 9, 2014 and that Missy Mills was associated with the address of 20 Hearne Avenue as recently as March 7, 2015. Facebook Search [ 33 ] D. Cst. Larochelle conducted a Facebook search for Brittany Taylor, located an account for a Brittany Taylor and observed a profile photograph that revealed her to be native, early twenties with long dark hair.

Failure to Make Full, Fair and Frank Disclosure and Failure to Undertake a Full Investigation [ 34 ] Counsel for Ms. Taylor argued that the duty to make full, frank and fair disclosure of all material information in the ITO includes a duty that the affiant ensure the factual assertions he makes and the conclusions he draws are investigated with due diligence before swearing to the truth of them. As authority for this proposition, counsel referred me to R. v. Adair , [1994] O.J. No. 3265 (Ont. Ct. Gen. Div.) , and R. v. Scotland , [2007] O.J. No. 5301 (Ont.

S.C.J.) . [ 35 ] I am not certain that the duty to investigate is that broad. Rather, it is my view that an affiant must set out in the ITO the investigative steps that have been taken and the relevant evidence that has been obtained. When, on review, evidence is adduced by the accused of additional material facts which should reasonably have been discovered by the police in advance of the ITO being submitted, the reviewing judge may consider those facts in addition to those in the ITO.

In addition, where the failure to adequately investigate renders a factual assertion alleged in the ITO less reliable, the reviewing judge may discount or disregard that factual assertion. [ 36 ] In the case before me, counsel pointed out three particular areas where he says Cst. Kelly failed to adequately investigate:

(1) The particulars of the surveillance reported to him;

(2) Establishing the identity of the person reported to be in possession of the fentanyl; and

(3) Determining the reliability of the confidential informants. The Surveillance [ 37 ] The ITO recites particulars of surveillance undertaken on May 26, 2015 beginning at 7:48 p.m. when Ms. Taylor and Jessica Chartrand are seen departing the residence of Unit 2, 27 Bruyere Street. It is clear that Cst. Kelly is reciting information relayed to him by D. Cst. Larochelle who was involved in the surveillance. [ 38 ] However, the surveillance began at 3:50 p.m. and there is nothing in the ITO to reflect what was observed between that time and 7:48 p.m.

It was not clear to me whether all of what was seen was communicated to Cst. Kelly or whether only those matters deemed by D. Cst. Larochelle to be material to the investigation were communicated. In any event, the following information did not find its way into the ITO: That there was a house party at the Bruyere Street residence and that prior to arriving there, Ms. Taylor, Ms. Chartrand and three other young women had attended an LCBO store. The ITO also did not disclose that while Ms. Taylor was in the grey Hyundai vehicle it made a stop at another LCBO store before returning Ms.

Taylor to the party at Unit 2, 27 Bruyere Street. [ 39 ] Defence counsel submitted that this information was known to Cst. Kelly and should have been included in the ITO, or it was information that was readily available to him had he properly investigated. Counsel submitted that this information provides important context to Ms.

Taylor’s activities on the evening in question and casts those activities in the light of a person who has acquired some alcoholic beverages to attend a house party and thereafter leaves to acquire additional beverages thus leaving an innocent explanation for the activities noted in the surveillance. [ 40 ] As recently determined by the Ontario Court of Appeal in R. v.

Paryniuk 2017 ONCA 87 , an ITO may be based on hearsay and although affiants may not ignore signs that fellow officers may be misleading them or omitting material information, in the absence of some indication that something is amiss, affiants do not need to conduct their own investigation into evidence provided to them by their colleagues. In the case before me there was no reason for Cst. Kelly to believe that D. Cst. Larochelle was misleading him or omitting material information. It follows that he was entitled to accept the information given to him by D. Cst.

Larochelle within independent investigation of it. [ 41 ] In any event, this additional evidence is of little consequence. Ms. Taylor’s alleged possession of fentanyl is not related to her presence at the Bruyere Street residence, so that her attending a house party at that residence is of little relevance. Similarly, that she was attending the party and left for a period of time during which she attended another LCBO store does nothing to explain the following suspicious circumstances: (

a) why the vehicle she was in parked a distance away from her home instead of at her home when she briefly attended there; (

b) why the vehicle she was in conducted several anti-surveillance measures; and (

c) why the vehicle she was in made two brief stops consistent with the sale of drugs, one with a known fentanyl user. [ 42 ] However, there were two factual assertions contained in the ITO that do not amount to full, fair and frank disclosure and which must be considered on this review. [ 43 ] The first is the assertion in the surveillance information that Jason Lyttle, a known fentanyl user “appeared to D. Cst. Larochelle to be smoking a fentanyl patch” shortly after attending a vehicle in which Ms. Taylor was seated. In fact, what Cst. Larochelle saw was Mr.

Lyttle, in his vehicle, stopped behind a closed business, with his head down. In the words of D. Cst. Larochelle, he “appeared to be using”. In my review, I will consider this revised version of events. [ 44 ] The second is the omission of information that “Junior” was not the driver of the vehicle in which Ms. Taylor was observed during the surveillance.

Although this was not specifically stated in the ITO it is important to note that he was not stated to be the driver, he was said to drive a black Mitsubishi and the vehicle was not a black Mitsubishi, and he was not stated to have any ties to the grey Hyundai in which Ms. Taylor was observed. It is difficult to see how an objective review of the ITO would lead anyone to conclude that he was the driver of grey Hyundai, but in any event, in my review I will accept that he was not the driver of the grey Hyundai in

which Ms. Taylor had been observed. Establishing Identity [ 45 ] Defence counsel argued that the failure of Cst. Kelly to make any fulsome inquiry into the identity of the person reported by the confidential informants to be in possession of fentanyl rendered the police surveillance unreliable as to identity and of no practical value. In particular, it was argued that descriptions provided by the confidential informants were not particularly detailed and the sole photograph used by the police was not in evidence and of questionable value with the result that there was insufficient information to believe Ms.

Taylor and the person kept under surveillance were the same person. [ 46 ] I do not agree. A consideration of all of the following facts results in a very high probability that the person kept under surveillance was, in fact, the person identified by the informants as Brittany Taylor: - CI1 identified the person in possession of the fentanyl as “Brittany” and advised that she lives at 21 Hearne Street in Sudbury.

CI1 later described “Brittany” as a thin, short female with long dark hair, in her early twenties and appearing to be part native. - CI2 confirmed that Brittany lives at 21 Hearne Street. - CI3 also confirmed that Brittany lives at 21 Hearne Ave and described her as native, with dark hair, skinny and in her twenties. - Cst. Kelly queried the residence at 21 Hearne Ave on the NICHE system and learned that a Brittany Taylor, born January 20, 1994 was associated with that address as recently as December 2014. - Cst.

Kelly queried the name Brittany Taylor on the NICHE system and confirmed that as of December 2014 she resided at 21 Hearne Ave. and had no criminal record. This confirms to some extent the information provided by CI1 that few people in the drug culture in Sudbury know who Brittany Taylor is. - Cst. Larochelle conducted an open source Facebook search for Brittany Taylor and was able to view a photograph that showed her to be native, early twenties with long dark hair. - On May 26 Cst. Jefferson observed a person consistent with the descriptions given and the photograph leave the residence at 21 Hearne Ave.

That same person was observed returning to the same residence and remaining for a short duration later that evening. [ 47 ] One of the confidential informants advised that Ms. Taylor was in possession of fentanyl on May 26. The information was that she was stashing it for another named person who was trafficking it. Fentanyl is regarded as a dangerous drug and I accept that there was some urgency to obtaining the search warrant and getting the drug off the street. In my view there was ample identification evidence, particularly given the time constraints which presented. Reliability of the Informants [ 48 ] Cst.

Kelly had little firsthand knowledge concerning any of the confidential informants. CI1 had, in the past, been handled by a veteran officer and been involved in drug investigations that resulted in charges, but Cst. Kelly could not provide any details of those investigations, whether prosecution had resulted in convictions, or what role CI1 played in the investigations. With respect to CI2 and CI3, they were first time informants being handled by other officers.

Neither had a proven record of reliability. [ 49 ] In these circumstances, defence counsel submitted that an extensive police investigation was necessary to corroborate the CI information and give it any probative value. Instead, he said, only a cursory investigation was conducted, involving little more than verification that the accused was associated with 21 Hearne Avenue.

He submitted that the information that “Junior” was storing fentanyl at the residence of the accused was not corroborated and there was no evidence aside from that provided by the confidential informants linking the accused to the relevant players and the sale of fentanyl. Further and proper investigation was required to corroborate the CI information. [ 50 ] In my view, Cst. Kelly gave a fair and accurate representation of the nature of the informants being used and the information they provided.

He did not overstate the basis for assessing their credibility, the extent to which their information was corroborated or the degree of detail they provided. [ 51 ] With respect to CI1 he was fair and frank in disclosing that the informant had previously provided information that resulted in 6 CDSA warrants, 5 CDSA Street Arrests and 1 Criminal Code warrant in which a firearm was recovered. He stated that in each circumstance the information provided by the CI1 was found to be accurate and credible. As pointed out by defence counsel, he was

unable to say whether convictions had followed in these previous cases, but I question whether that is of any particular significance. What is important is that the information previously provided on a dozen occasions was found to be accurate. It seems to me thatwhether or not convictions followed is neither here nor there. As stated by our Court of Appeal in R. v. Nguyen, 2015 ONCA 753, [2015] O.J. No. 5786: “Whether or not convictions had yet ensued as a result those drug-related arrests does not detract fromthe reliability of the informant.

Considerable time often elapses between an arrest and trial and, in any event, an arrest and seizure ofdrugs may not result in a conviction for any number of reasons unrelated to the reliability of the informant.” [52] With respect to CI2 and CI3, Cst. Kelly was fair and frank in his disclosure that his information came from other officers andthat the informants were providing information for the first time. There was no misstatement or over-representation of the credibility ofeither informant. [53] All information in Cst.

Kelly’s possession which would allow for the objective assessment of the reliability of the informantinformation was set out in the ITO and was not overstated or misrepresented. Should the Warrant Have Been Issued? [54] For the reasons which follow, it is my view that the information contained in the ITO, considered in light of additionalinformation that ought to have been disclosed, contained sufficient reliable evidence that might reasonably have been believed and uponwhich there were reasonable grounds to believe that Ms.

Taylor was committing the offence of possession of fentanyl for the purpose oftrafficking and that the drugs would be found inside of 21 Hearne Avenue. Was the CI Information Compelling? [55] In my view the CI information was compelling for the reasons which follow. [56] First, the information was provided by three separate confidential informants, all reasonably proximate in time, all of whomprovided similar information, and none of whom provided information contradictory of the others. [57] Second, CI1 and CI3 provided first-hand information.

That is, they had personally seen the fentanyl at 21 Hearne Street. [58] Third, the information provided by the CI’s was reasonably detailed. CI1 was able to describe the accused, give her firstname and the address where she lived, identify the particular drug she was in possession of, and the area of the house in which the drugswere kept. CI1 also indicated that Ms. Taylor was holding the drugs for a man named “Junior” and provided a physical description ofhim and that he sells the fentanyl being held by Ms. Taylor.

CI2 was able to provide the accused’s first name and where she lives, thatshe is a “stash” for “Junior” who deals in patches and who drives a black Mitsubishi. CI3 was able to provide a first and last name forthe accused and where she lives, that she “stashes” fentanyl for “Junior”, that her room is on the top floor of her house and provides adescription of the accused as native, with dark hair, skinny and in her twenties. CI3 also provides a description of Junior as a youngblack male with height of about 5’6”.

Were the Sources of the CI Information Credible? [59] There is little basis to assess the credibility of CI2 and CI3. [60] CI1, however, had provided information to the police on a dozen earlier occasions and on each such occasion the informationwas found to have been accurate. The information previously provided resulted in 6 CDSA Warrants, 5 CDSA street arrests and oneCriminal Code warrant where a firearm was recovered. In all cases charges were laid consistent with the information provided. Havingregard to these facts, the information from CI1 must be regarded as credible.

Was the Information from the CI’s Corroborated? [61] The Crown concedes that aside from the three confidential informants, there was little if any corroboration that the crime ofpossession of fentanyl for the purpose of trafficking was being committed at 21 Hearne Avenue. However, as the Supreme Court ofCanada confirmed in R. v.

Caissey 2008 SCC 65 , [2008] 3 S.C.R. 451, the issue on review is not whether there is someguarantee that the informant is telling the truth when he makes the allegation of criminal activity, but whether there was some evidencethat might reasonably be believed to support the issuance of the warrant. Information of the crime itself being committed does not needto be independently corroborated. [62] In this case before me, investigation led to some corroboration of the CI information which increased the likelihood that theCI information was reliable.

First, surveillance established that a black male matching the description of “Junior” and driving a blackMitsubishi was attending various addresses for short durations of time, consistent with trafficking in drugs. This offers somecorroboration of the CI information that “Junior” was selling fentanyl and increases the likelihood that the information was accurate. Second, surveillance revealed that Ms. Taylor associated with Jessica Chartrand, a person known to be involved in the drug subculture inSudbury.

This offers some corroboration of her proximity to that subculture and makes it more likely that she would be involved in thesubculture in some fashion. Third, surveillance revealed that Ms. Taylor was in a vehicle that made anti-surveillance maneuvers andbrief stops consistent with drug trafficking. This offers some corroboration of her proximity to the drug subculture and increases thelikelihood that she was involved in that drug subculture as stated by the informants. Fourth, investigation revealed her association withthe address of 21 Hearne Avenue and the physical description of Ms.

Taylor, thereby confirming the CI information on these points.

Summary [63] The information from the CI’s was quite compelling. The information from CI1 was credible. The information from each CIwas corroborative of the information provided by the others, and independent investigation provided further corroboration of the CIinformation. On consideration of all of the facts I have little difficulty finding that the ITO contained sufficient reliable evidence thatmight reasonably have been believed and on the basis of which the authorizing justice of the peace could have concluded that there were

reasonable grounds to believe that Ms. Taylor was committing the offence of possession of fentanyl for the purpose of trafficking andthat fentanyl would be located inside of 21 Hearne Avenue. It follows that the warrant was properly issued. Was Ms. Taylor’s Arrest Unlawful? [64] Section 495(1)(

a) of the Criminal Code authorizes a peace officer to arrest without warrant a person who has committed anindictable offence or who on reasonable and probable grounds, he believes has committed or is about to commit an indictable offence. [65] On the subject of “reasonable and probable grounds” the Supreme Court of Canada, in R. v. Storrey (SCC),[1990] 1 S.C.R. 241 that: … an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, inaddition, be justifiable from an objective point of view.

That is to say, a reasonable person placed in the position of the officer must beable to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need notdemonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case forconviction before making the arrest. [66] In R. v. Lawes 2007 ONCA 10 , [2007] O.J.

No. 50 (ONCA) the Ontario Court of Appeal held that in considering thelawfulness of an arrest, the totality of the circumstances relied upon by the arresting officer will form the basis for the objectiveassessment and that it would be an error in law to assess each fact or observation in isolation. [67] In the case before me, the grounds upon which the arrest was made are essentially contained in the ITO as I have earlierdescribed, supplemented by the information obtained by Cst. Kelly when police attended at 21 Hearne Avenue to execute the warrant.

In particular, after knocking on the door they were given entrance by Stephanie Taylor and once the circumstances were explained to her,Stephanie escorted police upstairs to Brittany’s room, opened the door, turned on the light and advised Brittany that police were presentfor her. Brittany answered to her name, got out of bed and went to the door of her room. Her physical appearance matched that providedby the confidential informants and the surveillance. [68] Counsel for Ms. Taylor argued that because Cst. Kelly had determined he had the grounds to arrest Ms.

Taylor before policeattended the house, the information obtained when they attended to execute the warrant should not be considered. I disagree. In myview, a fair

interpretation of Cst. Kelly’s evidence is that he had already formed the grounds to arrest Ms. Taylor provided the personpolice believed to be Ms. Taylor was at the house. I have little doubt that if Stephanie Taylor had said “There is no person here by thename of Brittany” or if Stephanie Taylor had escorted them to the bedroom upstairs and police found a six foot tall blond woman with afair complexion in the bed, the arrest would not have taken place when it did. Cst.

Kelly was entitled to and properly considered thecorroborating identification evidence in effecting the arrest. [69] For the same reasons I have found there to be reasonable grounds to search the property at 21 Hearne Avenue and to believethe offence of possession of fentanyl for the purpose of trafficking was being committed there, I find there was reasonable and probablegrounds to believe that Brittany Taylor had committed the offence. I am satisfied that Cst.

Kelly subjectively believed that reasonableand probable grounds for arrest existed, and I am satisfied that the grounds for arrest were justifiable from an objective point of view. The Use of Ms. Taylor’s Fingerprints [70] In the case of R. v. Beare; R. v. Higgins, (SCC), [1988] 2 S.C.R. 387, the Supreme Court of Canadaconsidered the constitutionality of

section 2 of the Identification of Criminals Act, R.S.C. 1970, c. l-1 and ss. 453.3(3) and 455.5(5) of theCriminal Code, R.S.C. 1970, c. 2 insofar as those sections authorized the fingerprinting of a person who has been arrested but not yetconvicted of an offence.

The Court found that the provisions did not contravene any provision of the Charter. [71] The Court found that the main purposes of these provisions, as they apply to a person charged with but not convicted of anoffence, are to “establish the identity and criminal record of the accused, to discover whether there are warrants outstanding for his arrestor if he has escaped from lawful custody, and, in some cases, to gather evidence which may be relevant to the question of whether or nothe committed the crime with which he has been charged” (my emphasis).

Having considered these purposes, the Court held thelegislation was not arbitrary in its scope particularly when one considered that for fingerprinting to be required there would have to bereasonable and probable grounds to believe that the person involved had committed an indictable offence. [72] In short, the Supreme Court of Canada has recognized, inter alia, that one of the purposes of taking fingerprints is to gatherevidence with respect to the very crime alleged, and that the requirement of reasonable and probable grounds to believe the offence hasbeen committed affords an appropriate constitutional safeguard. [73] This leads me to the conclusion that if the arrest of Ms.

Taylor was lawful there is no reason why the fingerprints taken uponher arrest could not be used in determining whether she is guilty of the offence with which she has been charged. [74] Given the direction of the Supreme Court of Canada on this issue, and my earlier finding that Ms. Taylor’s arrest was lawful,her fingerprints will be admissible at her trial. Was There a Breach of Ms. Taylor’s Right to Counsel, Right to Remain Silent and Right Against Self-Incrimination? Was there a Breach of Ms. Taylor’s Right to Counsel [75]

Section 10(

b) of the Charter of Rights provides that everyone has the right on arrest to retain and instruct counsel withoutdelay and to be informed of that right.

[76] It is settled law that

section 10(

b) imposes both informational and implementational duties on state authorities who arrest aperson. Those duties can be summarized as follows [see R. v. Bartle, (SCC), [1994] 3 S.C.R. 173]:

(1) To inform the person arrested of her right to retain and instruct council without delay and of the existence and availability of legalaid and duty counsel;

(2) If an arrestee had indicated a desire to exercise this right, to provide the arrestee with a reasonable opportunity to exercise the right(except in urgent and dangerous circumstances); and

(3) To refrain from eliciting evidence from the arrestee until she has had that reasonable opportunity (again, except in cases of urgencyor danger). [77] The issues in this case are whether there was unacceptable delay in advising Ms. Taylor of her rights to counsel and whetherthe police were in breach of their duty to refrain from eliciting evidence from her. [78] The first issue can be dealt with rather briefly. Ms. Taylor was arrested when she presented herself at the door of herbedroom. Her bedroom was located off of a narrow hallway.

At least five police officers were participating in the search of thepremises and were at or near the place where the arrest took place, as were Ms. Taylor and her mother. I have little difficulty acceptingthat it was somewhat crowded and congested in that small area. Ms. Taylor presented as somewhat dazed and confused. D. Cst.Larochelle determined that he would take Ms. Taylor downstairs where it would be less congested and quieter to administer her right tocounsel and did so. I accept that she was advised of her rights and given the caution within a very short period of time after her arrest.

Iam satisfied that she was informed of her right without delay. [79] When she was read her right to counsel, Ms. Taylor was shaking her head no and seemed uncooperative. After D. Cst.Larochelle explained her right to counsel a second time and asked if she wanted to speak to a lawyer, her response was: “I don’t haveone”. D. Cst. Larochelle then informed her that there is a list of lawyers at the police station that she could speak to. Ms. Taylorreplied: “Okay”. [80] Thereafter, D. Cst. Larochelle asked questions of Ms. Taylor, attempting to elicit incriminating information from her.

Eventually, she admitted there was fentanyl in her bedroom and was taken to the bedroom where she gestured toward the closet. [81] The position of the Crown is that Ms. Taylor was informed of her right to counsel and understood her right but neverexpressed a wish to contact counsel and accordingly the implementation components of the right to counsel were never triggered. [82] There are two problems with the Crown’s position. The first is that just before being taken down the stairs and before herright to counsel were read to her, Staff Sgt. Orsino made inquiries of her.

He did so without informing himself if she had been given herright to counsel. After explaining to her that she was under arrest for the drugs the police believed to be in the house, he asked thefollowing questions and received the following answers: Orsino: Is there anything here? Taylor: No. I was just at a party. Orsino: Do you want to show me where it is? Taylor: No. If I had any I wouldn’t keep it here. [83] Clearly, this exchange took place before even the informational component of the right to counsel had been provided. [84] The second problem concerns her exchange with Cst.

Larochelle when she indicated that she did not have a lawyer, andanswered “okay” to his statement that there would be a list of lawyers provided at the police station. In my view, her words were more inkeeping with a desire to speak to counsel than an expression of her desire not to do so. At the very least, it was an equivocation that thepolice ought to have clarified one way or the other.

It was not sufficient for the police to interpret her words in the way most beneficialto their investigation. [85] That she did, in fact, contact counsel when given the opportunity to do so at the police station supports the notion that it hadbeen her intention to do so all along. [86] In my view the police were obliged to clarify her answer and until they did so were obliged to “hold off” and ask no furtherquestions of her. This, of course they did not do, with the result that she provided an inculpatory statement and showed them the locationof the drugs.

Was There a Breach of Her Right to Remain Silent and Right Against Self-Incrimination? [87] The right to choose whether or not to speak to the authorities is defined objectively, rather than subjectively. The basicrequirement that the suspect possess an operating mind has a subjective element. But once this is established, the focus under theCharter shifts to the conduct of the authorities vis-a-vis the suspect. Was the suspect accorded the right to consult counsel?

Was thereother police conduct which effectively and unfairly deprived the suspect of the right to choose whether to speak to the authorities or not? [see R. v. Hebert, (SCC), [1990] 2 S.C.R. 151].

[88] As I have determined above, the police did not afford Ms. Taylor her right to counsel. In addition to this, however, hercounsel argued that there was other police conduct which effectively and unfairly deprived her of her choice of whether or not to speak tothem. In particular, when Ms. Taylor had been read the standard caution and indicated to police that she had nothing to say, she wasadvised that if drugs were found in a common area of the house her mother would also be charged with possession of them.

It was afterthis she indicated that her mother was not involved and showed the officers the location of the drugs. [89] In my view, the conduct of the police was not such as to effectively and unfairly deprive Ms. Taylor of her right to choosewhether or not she would speak to them. The statement made to her was less a threat than a statement of fact. Furthermore, given herknowledge that the drugs were not in a common area of the home she would have known that her mother would be free of arrest whetheror not she admitted ownership or showed the police where the drugs were located.

Conclusion [90] There was a breach of Ms. Taylor’s right to counsel. There was no other breach of Ms. Taylor’s right to remain silent orprivilege against self-incrimination. What, if any, Evidence Should be Deemed Inadmissible Due this Breach? [91] Counsel for the accused argued that Ms. Taylor’s statements and gestures should be excluded as a result of the police failureto provide her right to counsel.

Counsel also argued that the results of the search of her bedroom should be excluded. [92] Section 24(2) of the Charter provides that where, in proceedings under subsection (1), a court concludes that evidence wasobtained in a manner that infringed or denied any guaranteed rights or freedoms, the evidence shall be excluded if it is established that,having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [93] Whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disreputeengages three avenues of inquiry viewed in a long-term, forward-looking and societal perspective.

The first inquiry relates to theseriousness of the Charter-infringing state conduct. The second inquiry relates to the impact of the breach on the Charter-protectedinterests of the accused. The third inquiry relates to society’s interest in the adjudication of the case on its merits. The court’s role is tobalance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of theevidence would bring the administration of justice into disrepute. [See R. v. Grant 2009 SCC 32 , [2009] 2 S.C.R. 353 at para.71]. Statements and Gesture Made by Ms.

Taylor [94] When being questioned by police, Ms. Taylor eventually disclosed that the drugs were in her bedroom. She was taken to herbedroom and gestured towards the bottom area of her closet. The drugs were subsequently found there. [95] The Charter-infringing state conduct was the questioning of Ms. Taylor without adequately determining whether or not shewished to speak to counsel. The preservation of public confidence in our justice system requires that the police be aware of and adhere tothe Charter when obtaining statements from an accused who is under arrest.

In the case before me, it should be noted that the policewent out of their way to ensure that Ms. Taylor understood her right to counsel by explaining it to her on more than one occasion. Shewas given the standard caution informing her that she was under no obligation to make any statement. Had she clearly indicated herdesire to speak to counsel, I have little doubt that no further questioning of her would have ensued. The breach arose because she wassomewhat cryptic in her response. Instead of saying “Yes I wish to speak to a lawyer” or “No I do not wish to speak to a lawyer”, herresponse was “I don’t have one”.

When advised that there would be a list of lawyers made available to her at the detachment, herresponse was not “I will speak to one of them” or “I’m not going to bother”. Instead she replied “okay”. Although I have found that thepolice ought to have inquired further of her to determine her intentions, I would not term their failure to do so as having ignored her rightto counsel or being in bad faith. Theirs was not a wilful or reckless disregard of her Charter rights. Their conduct was neither deliberatenor egregious.

In the circumstances, the police conduct was moderately serious. [96] The right to counsel, which is closely related to the privilege against self-incrimination and the right to silence, are very basictenets of our criminal justice system which in turn protect Ms. Taylor’s interest in liberty and autonomy. Violation of these fundamentalrights affected Ms. Taylor’s right to make a meaningful choice about whether or not to speak to authorities. The statement and gestureensued. The impact of the police conduct was serious. [97] Criminal allegations should be determined on their merits.

In the circumstances of this case, the statement and gesture madeby Ms. Taylor were against her own interest and may be regarded as reliable. The evidence may be of significant value in establishingher knowledge and control of the drugs but is not the only evidence on this point and is not crucial to the Crown’s case. The offence withwhich she is charged is quite serious, particularly in light of the dangers known to be associated with the consumption of fentanyl. [98] As determined in Grant, there is a presumptive general, although not automatic, exclusion of statements obtained in breach ofthe Charter.

Although the nature of the breach in this instance was not the most serious, it significantly undermined Ms. Taylor’s right tomake a meaningful and informed decision on whether to speak. Given that the case may still be tried on it merits even without theevidence, it is my view that the admission of her statement and gesture would bring the administration of justice into disrepute and, as aconsequence, is inadmissible at trial.

The Evidence of the Found Drugs [99] The consideration of whether or not to exclude the drugs is slightly more nuanced because the police held a valid searchwarrant and were in the process of searching Ms. Taylor’s bedroom closet when she gestured towards where the fentanyl would befound. In my view there is a strong likelihood that the police would have located the drugs regardless of Ms. Taylor’s statement andregardless of her indication that they would be located in the closet.

The police already had reasonable and probable grounds to believethe drugs would be in that room, they had not yet searched but would inevitably have searched the area where the drugs were eventually

located, and would have been particularly thorough in their search given the nature of the drug in question. [ 100 ] This high likelihood of discovery of the drugs in any event of the Charter breach changes the dynamic of the section 24(2) analysis. The seriousness of the impugned conduct remains the same, however the impact on the Charter protected interest of the accused is significantly diminished because the evidence would have been located in any event. The evidence is real and highly reliable and it is crucial to the Crown’s case.

When I consider all of these circumstances, I have little difficulty finding that the admissions of the drugs into evidence would not bring the administration of justice into disrepute. Other [ 101 ] The voluntariness of the statements and gesture made by Ms. Taylor were argued in the context of whether there had been a breach of her right to silence and privilege against self-incrimination. Absent the breach of her right to counsel the statements and gesture were otherwise voluntary for the reasons I have already set out.

The issue is moot since I have already determined the inadmissibility of this evidence. [ 102 ] Ms. Taylor included in her grounds for challenging the search warrant that the procedure for obtaining it, namely swearing the ITO over the telephone at night, was unnecessary and that Cst. Kelly should have appeared personally before a Justice of the Peace during the day. That issue was not argued and for good reason. Cst. Kelly’s uncontradicted evidence was that regular hours for the justices of the peace in Sudbury ended at 4:00 p.m. and he was not in a position to submit the application and ITO until 10:15 p.m.

It would therefore have been impractical for him to have appeared personally before a justice of the peace. Conclusion [ 103 ] Ms. Taylor has established a breach of her Charter right to counsel and it is appropriate that the statements she gave to police while at 21 Hearn Avenue, along with evidence of her gesture indicating the location of the drugs, be ruled inadmissible. The remaining aspects of her applications are dismissed. R. D. Gordon, R.S. J. Released: February 7, 2017 CITATION : R. v. Taylor, 2017 ONSC 928 COURT FILE NO.: 811/16 DATE: 20170207

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Respondent – and – BRITTANY TAYLOR Applicant DECISION ON CHARTER MOTION R. D. GORDON, R.S.J. Released: February 7, 2017