R v Todd, 2019 SKCA 36

Court of Appeal for Saskatchewan Docket: CACR2993 Citation: R v Todd , 2019 SKCA 36 Date: 2019-04-18 Between: Her Majesty the Queen Appellant And Nicholas Matthew Todd Respondent Before: Richards C.J.S., Ottenbreit and Schwann JJ.A. Disposition: Appeal allowed; new trial ordered Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Ottenbreit On Appeal From: CRM 5 of 2016, Swift Current Appeal Heard: October 17, 2018 Counsel: Wade E. McBride, Q.C. for the Appellant Adrian S. McBride for the Respondent Schwann J.A. I.

Introduction [ 1 ] The respondent, Nicholas Matthew Todd, was charged with possession of cocaine for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19 [ CDSA ]. This charge followed a routine traffic stop along Highway #1 in southwest Saskatchewan that ultimately led to Mr. Todd’s arrest and the discovery of cocaine, other drugs and some cash following a police search of his vehicle. [ 2 ] Mr. Todd applied to have the seized evidence excluded at trial, arguing his ss. 7, 8, 9 and 10 Charter rights had been violated.

Following a voir dire conducted at the start of the trial, the trial judge found Mr. Todd’s ss. 7, 8 and 9 rights had been breached and concluded his arrest was unlawful. After a brief s. 24(2) analysis, the trial judge excluded the seized evidence. Since the Crown’s case rested on the admissibility of the evidence seized by the police officer, the trial judge acquitted Mr. Todd of the charge. [ 3 ] The Crown appeals from acquittal, alleging several errors with the trial judge’s Charter analysis. For the reasons that follow, I would allow the appeal, set aside the acquittal and direct a new trial.

II. background [ 4 ] Constable Staples was a general duty constable stationed with the Maple Creek detachment at the time of the incident in question. He was a 3.5-year veteran of the Royal Canadian Mountain Police at the relevant time with experience garnered from a large number of traffic stops and several CDSA investigations. Constable Staples’ experience with respect to drugs and contraband was supplemented by a one week training session entitled the Pipeline Convoy Jetway Course. [ 5 ] On the evening of October 14, 2015, Cst. Staples was running radar on Highway #1 in the Maple Creek area of Saskatchewan.

At 11:22 p.m., Cst. Staples detected a truck travelling west along Highway #1 at 143 kilometers per hour in a 110 kilometers per hour speed zone. Constable Staples initiated his emergency lights signalling the driver to stop. Mr. Todd, who happened to be the driver of the speeding vehicle, brought his truck to a stop without incident. [ 6 ] Constable Staples approached the driver’s side of the truck and made the following observations: (

i) Mr. Todd had just lit a fresh cigarette; (ii) Mr. Todd appeared to be more nervous than most individuals at, what Cst. Staples described as, a “routine” traffic stop; (iii) Mr. Todd’s hand trembled when he handed over his driver’s licence to Cst. Staples; (iv) several air fresheners were attached to the steering column of the truck; and (

v) although the truck was a rental vehicle, it was equipped with a radar detection device. Constable Staples testified that, based on his training and experience, what he observed were significant indicators of drug activity. He knew a freshly-lit cigarette and air fresheners are often used as masking agents to hide the smell of drugs. He was doubtful a rental company would furnish its vehicle with a radar detector and Mr. Todd appeared more nervous than what one might otherwise expect for a routine traffic stop. By this point in their interaction, Cst.

Staples suspected illegal drugs were involved. [ 7 ] In spite of his suspicion, Cst. Staples continued to treat the matter as a routine traffic stop. He took Mr. Todd’s licence and registration to his patrol car where he ran it through various police databases. Nothing of interest arose from these searches. Constable Staples returned to Mr. Todd’s vehicle at approximately 11:25 p.m. and told Mr. Todd he was “free to go”. As Cst. Staples explained on the voir dire , this statement was intended to release Mr. Todd from psychological detention. Constable Staples then purposefully turned away from Mr.

Todd, took a few steps away from the truck, stopped, leaned back and then asked Mr. Todd if he would mind if he asked him a few more questions before he left. Mr. Todd agreed.

[ 8 ] Constable Staples questioned Mr. Todd about the rental vehicle. Mr. Todd explained that he had hit a deer near Maple Creek with his own vehicle, thus necessitating a rental that happened to come equipped with a radar detection device. Constable Staples found this odd. Constable Staples then questioned Mr. Todd about where he had been, how long he had been there and why he only had one duffle bag for his trip. As far as Cst. Staples was concerned, the answers Mr. Todd provided did not seem to add up. Mr. Todd’s nervousness appeared to elevate as their conversation continued.

Their interaction lasted two to three minutes. [ 9 ] Mr. Todd’s nervousness, suspicious answers to the questions posed by Cst. Staples, the inference Cst. Staples drew from how Mr. Todd deflected some of his questions, together with his earlier visual observations, led Cst. Staples to believe he had grounds to detain Mr. Todd. At approximately 11:28 p.m., Cst. Staples told Mr. Todd he was being detained for a drug investigation and instructed him to exit the vehicle and proceed to the patrol car. Constable Staples asked Mr. Todd if he had anything in his pockets but did not conduct a pat-down safety search of Mr.

Todd’s person. [ 10 ] Mr. Todd was initially compliant with Cst. Staples as they proceeded to the patrol car but became somewhat resistant and openly questioned Cst. Staples’ authority to detain him. Constable Staples instructed Mr. Todd to enter the patrol car three times, with his last direction taking on a louder, more authoritarian tone. Mr. Todd relented and was placed in the back seat. As soon as Cst. Staples entered the front seat of the patrol car Mr. Todd asked him why he was being detained. Constable Staples once again told him that he thought Mr.

Todd had a large amount of drugs or money in his vehicle. Constable Staples testified that Mr. Todd then asked him if he could leave if he let Cst. Staples look inside the duffle bag. [ 11 ] Constable Staples interpreted what Mr. Todd had said as “pleading” and “bargaining”. The combination of Mr. Todd’s heightened nervousness, panicked reaction and desire to bargain constituted the “tipping factor” for Cst. Staples that advanced his thinking from reasonable suspicion to reasonable and probable grounds for arrest. Constable Staples arrested Mr.

Todd for possession of a controlled substance and gave him his right to counsel. According to the notes Cst. Staples took of the incident, the arrest took place at 11:31 p.m. and Mr. Todd was given his right to counsel and the police caution at 11:33 p.m. [ 12 ] Constable Staples undertook a search of Mr. Todd’s truck incident to his arrest. He found cocaine, hash oil and bundles of cash totalling $22,000. [ 13 ] The entire incident from the time Cst. Staples pulled over Mr. Todd for speeding until the time he read him his right to counsel following arrest was only 11 minutes. III.

Decision on the voir dire [ 14 ] Dealing first with the traffic stop, the trial judge readily found lawful authority for Cst. Staples to have detained Mr. Todd for speeding. He went on to find that, although it was “close to the line”, Cst. Staples had a reasonable suspicion to detain Mr. Todd for purposes of a drug investigation based on the following indicia ( R v Todd (28 June 2017) Swift Current, CRM 5/2016 (Sask QB)): [13] Cst.

Staples considered all of this: • The freshly lit cigarette and air fresheners; • The rental vehicle; • The radar detector; • The purpose of the trip seemed questionable; • Minimal luggage for two weeks; and • The level of nervousness and continued nervousness. [ 15 ] As far as the trial judge was concerned, the central issue on the voir dire was whether the utterance Mr. Todd made in the back seat of the patrol car was enough to move from reasonable suspicion to reasonable grounds for arrest. In assessing this issue, the trial judge commented on the plan Cst.

Staples had formulated in his own mind as he marched Mr. Todd to the patrol car (at para 24): ... When the accused got into the police car, the constable appears to have already formulated a plan of action to take place after reading the Charter rights to counsel: 1. If the accused wanted to talk to a lawyer: then he would try to get a sniffer dog. Implicit in this is the constable knew he would need more – he would need a dog (like in MacKenzie where it went in two steps, reasonable suspicion to detain then the dog was deployed, made a hit and this led to the arrest); and 2.

If the accused waived his right to talk to a lawyer, the constable knew he needed to get the accused to give him more inculpatory information by questioning him further. [ 16 ] The trial judge then considered Cst. Staples’ testimony about Mr. Todd’s “bargaining” behaviour, noting that it was “not detailed very much in Cst. Staples’ evidence” and “very brief, perhaps a matter of seconds” (at para 25). After canvassing case authorities, the trial judge concluded Mr. Todd’s brief outburst in the back seat of the patrol car, coupled with Cst.

Staples’ observations of him, fell short of establishing reasonable grounds for arrest. He concluded by stating: [30] I have considered the direction of the Court of Appeal in Shinkewski in this regard. I find that the accused has persuaded me, on a balance of probabilities, that when I take all of the accumulated observations of the constable, in their best light, and apply his level of training and experience, I do not find that I am able to conclude there are reasonable grounds for the arrest. I believe the constable

reacted too quickly and should have maintained his original plan of either getting a sniffer dog or possible [ sic ] a further conversation with the accused or other investigation. It is not for the court on this voir dire to second guess what could have happened. The power to arrest is only available when the officer subjectively believes he had reasonable and probable grounds to make the arrest. These grounds must be justified from an objective point of view, as assessed from the standpoint of the reasonable person. I do not see that here. Based on this conclusion, the trial judge determined Mr.

Todd’s ss. 7, 8 and 9 Charter rights had been infringed, but he did not express an opinion on whether there had been a breach of s. 10(b). [ 17 ] The trial judge then undertook an abbreviated s. 24(2) analysis, concluding the items seized should be excluded. To this point, he said: [33] Cst. Staples appears to have been aware of the workings of the Charter and his evidence shows he understood the difference between having a reasonable suspicion to detain Mr.

Todd for the purposes of a drug investigation and the next step to have reasonable and probable grounds to arrest him and then proceed to search the truck incidental to the arrest. I find that while the constable appears to have been well intended nonetheless this is a serious infringement. I also find that this had a significant impact on the Charter protected interests of Mr. Todd. I accept that society has a keen interest in the adjudication of such a case on its merits, but nonetheless find that I should accede to Mr.

Todd’s application to exclude the evidence arising from the search and seizure of the subject truck and I do so. IV. issues [ 18 ] The issues identified by the Crown’s appeal are these: whether the trial judge erred in finding Mr. Todd’s arrest was unlawful and therefore the search following it was a breach of his Charter rights and, in the alternative, if there was a breach, whether the trial judge erred in excluding the evidence obtained from the search of Mr. Todd’s truck. [ 19 ] In seeking to sustain the trial judge’s decision, counsel for Mr. Todd on appeal (who was not counsel at trial) asserted Mr.

Todd had been detained at an earlier point in time and, flowing from that breach, his s. 10(

b) Charter right was also violated. The trial judge did not analyze these Charter violations or make any determinations in relation to them, but had he done so, Mr. Todd argues, the seriousness of the Charter offending conduct would have been elevated. [ 20 ] Based on Mr. Todd’s arguments, resolution of this appeal requires this Court to consider the following issues: (

a) Did the trial judge err in his Charter analysis? (

b) At what point after he was told that he was “free to go” was Mr. Todd detained? (

c) Was Mr. Todd given his right to counsel without delay? (

d) Should the evidence be excluded pursuant to s. 24(2) of the Charter ? V. JURISDICTION AND STANDARD OF REVIEW [ 21 ] This is a Crown appeal from acquittal pursuant to s. 676(1) (

a) of the Criminal Code . The Crown’s right to appeal from acquittal on an indictable offence is limited to questions of law. [ 22 ] The central issue raised on this appeal is whether the trial judge properly applied the Charter .

Application of the Charter raises a question of law reviewable on the correctness standard ( R v Trapp , 2011 SKCA 143 , 377 Sask R 246; R v Ramos , 2011 SKCA 63 , 371 Sask R 308). [ 23 ] The Supreme Court of Canada in R v Shepherd , 2009 SCC 35 , [2009] 2 SCR 527, explained how the standard of review operates in relation to an appeal that necessitates a review of the underlying evidentiary foundation.

While an appeal of this nature may appear to raise a question of fact, the Supreme Court affirmed the principle that the application of a legal standard to the facts is a question of law: [20] While there can be no doubt that the existence of reasonable and probable grounds is grounded in the factual findings of the trial judge, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law.

As with any issue on appeal that requires the court to review the underlying factual foundation of a case, it may understandably seem at first blush as though the issue of reasonable and probable grounds is a question of fact. However, this Court has repeatedly affirmed that the application of a legal standard to the facts of the case is a question of law: see R. v. Araujo , 2000 SCC 65 , [2000] 2 S.C.R. 992, at para. 18 ; R. v. Biniaris , 2000 SCC 15 , [2000] 1 S.C.R. 381, at para. 23 . In our view, the

summary conviction appeal judge erred in failing to distinguish between the trial judge’s findings of fact and his ultimate ruling that those facts were insufficient, at law , to constitute reasonable and probable grounds. Although the trial judge’s factual findings are entitled to deference, the trial judge’s ultimate ruling is subject to review for correctness. (Emphasis in original) VI. ANALYSIS A. Did the trial judge err in his Charter analysis?

[24] The Crown advances several lines of argument principally aimed at the trial judge’s s. 8 analysis. It argues the trial judgeerred by: (

i) applying the wrong legal test to assess whether there were reasonable grounds for arrest; (ii) undertaking a piecemealanalytical approach to the factors relied upon in support of the arrest, failing to take into account the totality of the factors and, finally onthis point, failing to appreciate the significance of the factors when assessed both individually and collectively; (iii) drawing a connectionbetween Cst. Staples’ lack of experience and his belief that he had reasonable grounds for arrest; and (iv) concluding the global impact ofall of the factors failed to meet the reasonable grounds standard. 1.

Did the trial judge apply the proper legal test? [25] For an arrest to be lawful, two things must be established. First, the arresting officer must believe that he or she has reasonablegrounds to make the arrest. No issue was taken at trial as to whether Cst. Staples possessed the required subjective belief.

Second,viewed objectively, the grounds articulated by the arresting officer must be reasonable; that is, a reviewing court must ask itself whethera person in the shoes of the officer would be able to conclude there were reasonable grounds for the arrest (R v Storrey, (SCC), [1990] 1 SCR 241 at 250–51 [Storrey]). [26] By referencing this Court’s decision in R v Shinkewski, 2012 SKCA 63, [2012] 9 WWR 674 [Shinkewski], as the appropriateanalytical framework for assessing the lawfulness of Cst. Staples’ warrantless arrest, I am satisfied the trial judge identified the correctlaw and the correct legal standard.

Paragraph 13 of Shinkewski, which was specifically flagged by the trial judge in his written decision,offers a

summary of the law in this area and bears repeating for purposes of assessing the Crown’s arguments: The legal standard of “reasonable grounds to believe” has been the subject of considerable judicial

interpretation. I do not propose toreview it all; however, I make the following observations from the jurisprudence: (

a) an arresting officer must subjectively hold reasonable grounds to arrest and those grounds must be justifiable from an objective pointof view – in other words, a reasonable person placed in the position of the arresting officer must be able to conclude there were indeedreasonable grounds for the arrest: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241; (

b) an arresting officer is not required to establish the commission of an indictable offence on a balance of probabilities (Mugesera v.Canada (Minister of Citizenship & Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100) or a prima facie case for conviction (R. v. Storrey)before making the arrest; but an arresting officer must act on something more than a “reasonable suspicion” or a hunch (R. v. Morelli,2010 SCC 8, [2010] 1 S.C.R. 253, at para 91; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Simpson (1993), (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.)); (

c) an arresting officer must consider all incriminating and exonerating information which the circumstances reasonably permit, but maydisregard information which the officer has reason to believe may be unreliable: R. v. Storrey; (

d) a reviewing court must view the evidence available to an arresting officer cumulatively, not in a piecemeal fashion: R. v. Savage,2011 SKCA 65, 371 Sask. R. 283; R. v. Nguyen, 2010 ABCA 146, 477 A.R. 395; and R. v. Storrey; and (e) “…the standard must be interpreted contextually, having regard to the circumstances in their entirety, including the timing involved,the events leading up to the arrest both immediate and over time, and the dynamics at play in the arrest”: R. v. Nguyen, at para. 18; and,context includes the experience and training of the arresting officer: R. v. Nolet, at para 48; R. v.

Whyte, 2011 ONCA 24, 266 C.C.C. (3d)5, at para 31; and R. v. Luong, 2010 BCCA 158, 286 B.C.A.C. 53, at para. 19. [27] Having identified the correct law, the real issue on this appeal is whether the trial judge properly applied it to the evidence onthe voir dire. Before examining the Crown’s specific allegations of error, two important points from the Shinkewski synopsis meritcomment at the outset. Both speak to how a reviewing court must approach the task at hand. [28] The first point to be made here is this.

While the reviewing judge is required to undertake a robust assessment of theconstellation of factors said to support a warrantless arrest, a trial judge’s review is not a de novo assessment of the asserted grounds.Instead, the law requires reviewing judges “to assess the objective reasonableness of an arresting officer’s belief that he or she hadreasonable grounds to arrest from the perspective of a reasonable person standing in the arresting officer’s shoes” (James Fontana andDavid Keesham, The Law of Search and Seizure in Canada, 10th ed (Toronto: Lexis Nexis, 2017) at 1048; Shinkewski at paras 13 and19; Storrey at para 16).

An officer’s training and experience is a relevant factor in assessing the objective reasonableness of the officer’sbelief (R v MacKenzie, 2011 SKCA 64, 371 Sask R 291 [MacKenzie CA], aff’d 2013 SCC 50, [2013] 3 SCR 250 [MacKenzie SCC]). [29] The second important point drawn from Shinkewski relates to the burden borne by the Crown in relation to the assessment ofthe grounds for arrest. As a matter of established law, courts have consistently cautioned trial judges not to conflate reasonable groundsfor arrest with the trial burden.

While reasonable grounds for arrest contemplates something more than mere suspicion, the Crown doesnot need to meet the stringent “proof beyond reasonable doubt” standard, the lesser prima facie case standard or even the more relaxedcivil “balance of probabilities” standard.

As this Court stated in R v Gunn, 2012 SKCA 80, 399 Sask R 170, albeit in relation to a breathdemand, the “reasonable grounds to believe” standard is one of lesser probability, that is, the reviewing court must ask itself whether theinference drawn by the arresting officer was a reasonable one to have made at the time of arrest based on the circumstances known to theofficer at that time. Determining whether reasonable grounds exist requires an assessment of the totality of the circumstances (see also: Rv Debot, (SCC), [1989] 2 SCR 1140 at 1168). 2.

Did the trial judge correctly apply Shinkewski? [30] As mentioned, the real issue raised by the Crown on this appeal is whether, given the approach required to be taken by areviewing court, the trial judge applied the legal test properly. For the reasons explained below, I conclude he did not. [31] The thrust of the Crown’s argument relates to how the trial judge dealt with Mr. Todd’s outburst in the patrol car. Recall, thetrial judge was satisfied that, based on the indicia identified by Cst. Staples on the voir dire, the officer had enough information to form a

reasonable suspicion sufficient to detain Mr. Todd for purposes of a drug investigation. At trial, both Crown and defence counsel zeroed- in on what they perceived to be the real issue at stake: whether Mr. Todd’s utterance in the patrol car was enough to elevate reasonable suspicion to reasonable grounds for arrest. [ 32 ] Given the emphasis the parties placed on what happened in the patrol car, not surprisingly the trial judge also saw this as “the real issue” on the voir dire (at para 21).

However, the Crown contends, and I agree, that in analyzing what transpired, the trial judge appears to have limited his assessment to the duration of the exchange that took place between Cst. Staples and Mr. Todd in the patrol car. That is to say, the trial judge seemed to be focused on the length of the in-car exchange, describing it as “very brief”, “perhaps a matter of seconds”, a “very brief moment in time” (at para 25), and a “brief outburst” (at para 29). [ 33 ] In my view, the trial judge was obliged to do more.

He had to consider not just the fact of the utterance or the length of their exchange, but it was equally if not more important for him to consider precisely what Mr. Todd said and how he said it. [ 34 ] With regard to Mr. Todd’s behaviour, Cst. Staples testified that Mr. Todd became panicky, appeared to be pleading and acted like he was “trapped” immediately after he informed Mr. Todd that he believed there were illicit drugs and contraband in the truck. Constable Staples’ testimony about how things unfolded in the patrol car is quite telling: Q Okay.

And just pick up the narrative then, what -- take us through with your interaction between -- A So I got in the front seat of my car, and as soon as I did, he said something like, Why -- why am I being detained? Or, Why am I being detained for a drug investigation -- or something. It -- it was -- it sounded like kind of a -- a genuine question. So I -- I told him, Because I think you have a large amount of drugs and/or money in your vehicle. That’s exactly what I said to him. And then he started going into -- well, I think he was already sort of in a -- a panic mode when he wouldn’t get in the back of the car.

But then inside, after I told him that I thought he had a large amount of money or drugs in that vehicle, he started trying to bargain with me. He said, Well, if I just show you what’s in -- what’s in my duffel bag, will you let me go? Will you -- you know, and he started pleading with me. And it -- it was -- he was sort of acting like a -- like he was trapped. Like his back was against the wall and knew I was going to search his vehicle. So it was that -- it was that sort of panicking, that bargaining, that -- that he was displaying in the back of my car, that had me switch to an arrest at that point.

So instead of detaining him for a drug investigation, I said, You’re -- you’re now under arrest for possession of a controlled substance. I -- I had my card. I read him what I read from my card verbatim, which would be the arrest, the rights to counsel, and the police caution. The rights to counsel were at 11:31 p.m. I believe. ... [ 35 ] The trial judge took note of Cst. Staples’ testimony concerning how Mr. Todd had become panicky and attempted to bargain with the officer. The trial judge said Mr.

Todd’s behavior was “very brief” and possibly amounted to “some sort of limited consensual search of the truck” (at para 25). Importantly, though, the trial judge failed to turn his mind to why Mr. Todd might have been bargaining with Cst. Staples or what reasonable inference Cst. Staples could have drawn from Mr. Todd’s words and behaviors in light of the other indicia he had testified to on the voir dire . Simply focusing on the brevity of Mr. Todd’s comments to the exclusion of how he said them, the content of what was said and whether Mr. Todd’s utterance was reasonably connected to what Cst.

Staples had just told him (i.e., that he was being detained for drugs) caused the trial judge to view the utterance in isolation from everything that had transpired beforehand. In my view, these nuances should have been instrumental in assessing whether the inference of criminality drawn by Cst. Staples was a reasonable one for him to have made. [ 36 ] Neither did the trial judge comment on precisely what Mr. Todd had said, apart from his brief observation that it might be viewed as “attempting to agree to some sort of limited consensual search of the truck” (at para 25).

Constable Staples testified that after Mr. Todd was informed he was being detained for a drug investigation, his immediate response was: “Well, if I just show you what’s in - - what’s in my duffel bag, will you let me go?” The Crown characterizes what Mr. Todd said as amounting to just short of an admission. While I am not prepared to go quite that far, given the entirety of the police interaction with Mr. Todd up to this point in time, it is clear that what Mr. Todd actually said to Cst. Staples was highly relevant to the trial judge’s assessment of the reasonableness of the inference Cst.

Staples drew from it and thus was highly relevant to assessing whether Cst. Staples had reasonable grounds to arrest Mr. Todd. [ 37 ] It was also important for the trial judge to have recognized Cst. Staples’ belief that he had grounds to move from detention to arrest did not hinge solely on what Mr. Todd said. Whether Cst. Staples’ belief was objectively reasonable had to have been assessed in light of the events leading up to the interaction between Cst. Staples and Mr. Todd in the patrol car. To this point, and on the facts before him, it was clear Mr. Todd’s utterance did not come out of left field.

To recap, Mr. Todd had been told by Cst. Staples not once, but twice, that he was being detained for a drug investigation. Mr. Todd’s comment came immediately after he was informed of the reason for his detention a second time. In light of all of this, it was reasonable for Cst. Staples to have inferred that Mr. Todd did not want Cst. Staples to search his truck and was prepared to strike some sort of a bargain to avoid having that happen. Focusing only on the duration of their conversation in the patrol car and ignoring the entire sequence of events leading up to what Mr.

Todd said and how he behaved caused the trial judge to fail to appreciate all of the evidence from a contextual perspective or, as stated in Shinkewski , “having regard to the circumstances in their entirety, including the timing involved, the events leading up to the arrest both immediate and over time, and the dynamics at play in the arrest” (at para 13). [ 38 ] The Crown also points to errors with how the trial judge dealt with Cst. Staples’ training and experience. Constable Staples testified about how his experience factored into his perception of Mr.

Todd’s behaviours and what he made of the things he saw in his truck. For instance, Cst. Staples testified about how cigarettes and air fresheners are used as masking agents, the oddity of a rental vehicle coming equipped with air fresheners and a radar detector and how an elevated level of nervousness more often than not correlates with illegal activity. [ 39 ] While Cst. Staples did not have an abundance of training and experience, he had some.

As the Supreme Court explained in MacKenzie SCC , dealing with the issue of reasonable suspicion, the significance and purpose of an officer’s training and experience is relevant to assessing whether the standard had been met: [62] Officer training and experience can play an important role in assessing whether the reasonable suspicion standard has been met. Police officers are trained to detect criminal activity. That is their job. They do it every day. And because of that, “a fact or consideration

which might have no significance to a lay person can sometimes be quite consequential in the hands of the police” ( Yeh , at para. 53). Sights, sounds, movement, body language, patterns of behaviour, and the like are part of an officer’s stock in trade and courts should consider this when assessing whether their evidence, in any given case, passes the reasonable suspicion threshold. [ 40 ] As I understand his reasons, the trial judge dealt with Cst. Staples’ training and experience in two ways. First, he focused on Cst.

Staples’ relative lack of experience in comparison to the level of experience possessed by officers in other decisions where the grounds for arrest were found to be objectively reasonable. For instance, he said Cst. Staples’ experience “was well short of the two senior RCMP officers” in R v Santos , 2014 SKQB 5 at para 28 , 436 Sask 1 [ Santos ]. [ 41 ] Second, the trial judge implied Cst. Staples’ lack of experience caused his thinking to rapidly accelerate from reasonable suspicion to grounds for arrest in a very short time span. In this respect, the trial judge appears to have been influenced by Cst.

Staples’ testimony about the plan he had formulated as he walked Mr. Todd to the patrol car. As described above, after giving Mr. Todd his right to counsel, Cst. Staples had it in his mind that if Mr. Todd expressed a desire to speak with a lawyer, a sniffer dog would be called in; if Mr. Todd waived his right to counsel, he would question him further. Returning to the trial judge’s reasons on this point, he said: “I believe the constable reacted too quickly and should have maintained his original plan of either getting a sniffer dog or possibl[y] a further conversation with the accused or other investigation.

It is not for this court on this voir dire to second guess what could have happened” (emphasis added, at para 30). [ 42 ] As I read his reasons, the trial judge not only gave little to no weight to Cst. Staples’ training and experience, he seemed to hold his relative inexperience against him in assessing whether the officer had reasonable grounds for arrest. Since the trial judge did not reject Cst. Staples’ testimony or make any adverse finding of fact in relation to it, he was obliged to at least consider Cst. Staples’ evidence about how he interpreted what he had observed.

This is not to say the trial judge had to uncritically accept Cst. Staples’ evidence or give it undue weight, but he had to at least consider it. As mentioned, he not only failed to do so, but he appears to have held Cst. Staples’ relative lack of experience against him. [ 43 ] Finally, the Crown makes the additional point that the trial judge erred by simply comparing and measuring the indicia Cst. Staples testified about to the number and quality of the indicia in other decisions.

Citing Santos and MacKenzie CA , the trial judge noted the absence of a hidden compartment in the vehicle or the reactions of a sniffer dog. In taking this approach, the Crown argues, the trial judge improperly focused on indicia that were not present instead of assessing whether, objectively speaking, Cst. Staples had reasonable grounds for arrest. There is obvious merit to the Crown’s argument. The trial judge was required to consider the cumulative weight of the grounds articulated by Cst.

Staples and not just tally up the number of indicators of criminal behaviour and then quantitatively compare them to other cases where there may have been more. [ 44 ] To tie all of this together, I am satisfied that the trial judge took a piecemeal approach to what Mr. Todd had said in the truck and, in doing so, failed to examine Cst. Staples’ evidence contextually and cumulatively. Furthermore, by focusing on the brevity of Mr. Todd’s utterance and Cst.

Staples’ decision to divert from his original plan, the trial judge overemphasized these factors in seeming disregard for the continuum of events that had taken place and the observations that had been made by Cst. Staples up to the point in time when Mr. Todd was placed in the back seat of the patrol car. The Crown makes the point, with which I agree, that the additional observations made by Cst. Staples and, more importantly, Mr. Todd’s own conduct led seamlessly to the point where reasonable grounds for arrest were established. Mr.

Todd’s arrest was unquestionably the culmination of a series of dynamic events that unfolded very rapidly. The trial judge was obliged to consider the full range of events in a cumulative, not piecemeal, fashion. Based on the trial judge’s written reasons, I am not satisfied he took that approach. B. At what point after he was told that he was “free to go” was Mr. Todd detained? 1. How the trial judge dealt with allegations of arbitrary detention and right to counsel [ 45 ] Mr. Todd contends the validity of his arrest must be examined contextually in light of the entire interaction that took place with Cst.

Staples. Specifically, Mr. Todd says he was psychologically detained when he agreed to answer Cst. Staples’ questions even though he was told he was free to go and, as such, his detention engaged s. 10(

b) of the Charter . [ 46 ] Although the trial judge failed to undertake a meaningful analysis of the s. 9 issue, he nonetheless made two key findings with regard to Mr. Todd’s detention. [ 47 ] First, he concluded “there is no question (nor was it seemingly contested) that the traffic stop was legitimate and the constable had the authority to detain Mr. Todd pursuant to that investigation” (at para 18). Mr. Todd takes no issue with this finding nor does he challenge the legitimacy of the questions posed by Cst.

Staples when he was initially pulled over or with the plain view observations that had been made by Cst. Staples at that point in time. [ 48 ] This brings me to the trial judge’s second important finding. At paragraph 20, the trial judge concluded: ... I am satisfied that Cst. Staples had a reasonable suspicion based on the above indicia to detain Mr. Todd for the purposes of the drug investigation. I can objectively conclude there is a factual basis for the reasonable suspicion.

I will state this is “close to the line” (as the phrase has been used by our Court of Appeal in R v MacKenzie , 2011 SKCA 64 , 371 Sask R 291 [ MacKenzie ] and by Justice Gunn in R v Santos , 2014 SKQB 5 , 436 Sask R 1 [ Santos ]) but nevertheless I am satisfied Cst. Staples had the factual basis to detain Mr. Todd under the CDSA investigation (see R v Chehil , 2013 SCC 49 at paras 29–34 , [2013] 3 SCR 220). [ 49 ] On appeal, Mr. Todd argues the aforesaid finding did not address when Mr. Todd was detained. I disagree. While the trial judge did not give Mr.

Todd’s detention a great deal of attention, he was nonetheless satisfied Cst. Staples had a reasonable suspicion “ based on the above indicia to detain Mr. Todd for the purposes of a drug investigation” (emphasis added, at para 20). It is clear from this passage that the trial judge linked Cst. Staples’ “reasonable suspicion” to the indicia he had identified on the voir dire (see paragraph

14 above). Moving down the list of indicia, it is apparent from the transcript that Cst. Staples gleaned the first three factors (i.e., freshly lit cigarette and air freshener, rental vehicle, and radar detector) from the initial traffic stop. The remaining indicia (purpose of trip, minimal luggage and elevated level of nervousness) were observations Cst. Staples had made after asking Mr. Todd a few questions at the side of his truck when he returned to let him off with a warning for speeding. The only reasonable inference to be drawn from all of this is that the trial judge found Cst.

Staples had a reasonable suspicion at the point in time when he informed Mr. Todd he was being detained for a drug investigation and not before. [ 50 ] Once Cst. Staples formed a reasonable suspicion of drug activity, Mr. Todd was clearly detained – in fact, Cst. Staples expressly told him so. What this meant from a Charter perspective was that Mr. Todd’s s. 10(

b) rights were engaged and he was entitled to be informed of his right to retain and instruct counsel without delay. Unfortunately, the trial judge did not express an opinion on whether Cst. Staples violated Mr. Todd’s s. 10(

b) rights. Given Mr. Todd’s Charter notice, the facts before him and the argument of trial counsel set out in his brief of law, it was incumbent on the trial judge to have determined whether Mr. Todd was detained at the start of his interaction with Cst. Staples, as so alleged, and, if so, to have gone on to determine whether he had been given his s. 10(

b) rights without delay. Since the trial judge failed to address these issues, it falls to this Court to do so. I will deal with Mr. Todd’s arguments in turn. 2. The alleged s. 9 breach [ 51 ] To set the stage for Mr. Todd’s argument, I will briefly revisit what transpired. After Cst. Staples checked Mr. Todd’s licence and registration on police databases, he returned to Mr. Todd’s truck, gave him a warning about speeding and then told him he was “free to go”. Constable Staples took a few steps towards his patrol car and then turned around and asked Mr.

Todd if he would mind answering a few questions before he left. Mr. Todd responded with “sure”. Under cross-examination, Cst. Staples conceded: (

i) he did not inform Mr. Todd that he had no obligation to answer the questions; (ii) he had no legal authority to detain him at that precise point in time; and (iii) he considered his questioning to be a drug investigation. Over the course of several minutes, Cst. Staples asked Mr. Todd five or six questions. After their interaction concluded, as mentioned, Cst. Staples told Mr. Todd he was being detained for a drug investigation and directed him to step out of the vehicle. [ 52 ] The question posed by Mr. Todd on this appeal concerns the legal nature of the interaction that took place between the time Cst.

Staples told Mr. Todd he was free to go and the time he told him he was being detained for a drug investigation. This question engages consideration of s. 9 of the Charter , which provides that “[e]veryone has the right not to be arbitrarily detained or imprisoned”. [ 53 ] Detention is the suspension of an individual’s liberty interest. It can consist of either physical or psychological restraint, with psychological detention taking one of two forms.

As explained in R v Grant , 2009 SCC 32 , [2009] 2 SCR 353 [ Grant ], psychological detention arises either where the individual has a legal obligation to comply with a restrictive request or demand, or where “a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply” (at para 44) (see also: R v Loewen , 2018 SKCA 69 , 365 CCC (3d) 91 [ Loewen ]). [ 54 ] But, as the Supreme Court cautioned in R v Suberu , 2009 SCC 33 , [2009] 2 SCR 460 [ Suberu ], not every interaction between an individual and the police is a “detention” within the meaning of s. 9, even in circumstances where a person is under investigation for criminal activity.

Furthermore, s. 9 does not prohibit the police from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime (at para 3). Drawing from the Court’s earlier decision in R v Mann , 2004 SCC 52 , [2004] 3 SCR 59, the Supreme Court in Suberu stated: [23] However, this latter understanding of detention does not mean that every interaction with the police will amount to a detention for the purposes of the Charter , even when a person is under investigation for criminal activity, is asked questions, or is physically delayed by contact with the police.

This Court’s conclusion in Mann that there was an “investigative detention” does not mean that a detention is necessarily grounded the moment the police engage an individual for investigative purposes. Indeed, Iacobucci J., writing for the majority, explained as follows: “Detention” has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to “detain”, within the meaning of ss. 9 and 10 of the Charter , every suspect they stop for purposes of identification, or even interview .

The person who is stopped will in all cases be “detained” in the sense of “delayed”, or “kept waiting”. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint. In this case, the trial judge concluded that the appellant was detained by the police when they searched him .

We have not been urged to revisit that conclusion and, in the circumstances, I would decline to do so. [Emphasis added; at para. 19.] [ 55 ] So, while the police are not foreclosed from interacting with members of the public until such time as they have grounds to connect the individual with a criminal offence, the issue often reduces to whether the individual in question was “psychologically” detained.

As explained in Suberu : “a detention can also be grounded when police conduct would cause a reasonable person to conclude that he or she no longer had the freedom to choose whether or not to cooperate with the police” (at para 22). This is an objective inquiry made in light of the circumstances as a whole. [ 56 ] This analysis ultimately involves a “realistic appraisal of the entire interaction as it developed” ( Grant at para 32 ).

The Court in Grant went on: “It is for the trial judge, applying the proper legal principles to the particular facts of the case, to determine whether the line has been crossed between police conduct that respects liberty and the individual’s right to choose, and conduct that does not” (at para 32). [ 57 ] There is no bright line separating innocuous police questioning from psychological detention. Grant provides the following guidance for use in assessing where that line is drawn (at para 44): ... 1.

Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or

psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. 2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia , the following factors: (

a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation. (

b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter. (

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication. [ 58 ] One final preliminary comment. The onus is on the applicant to show that, in the circumstances, he or she was effectively deprived of liberty of choice. While it is not fatal for an applicant to refrain from testifying about his or her perception of the police encounter, the applicant’s contention that he or she had been deprived of liberty must nonetheless find support in the evidence ( Suberu at para 28 ). [ 59 ] Mr.

Todd did not testify on the voir dire . While I recognize he was not legally required to do so, I am left with no direct evidence about Mr. Todd’s subjective belief as to whether he felt compelled to remain at the scene and answer Cst. Staples’ questions. Apart from Cst. Staples’ observations about Mr. Todd’s nervousness, there was no evidence of specific characteristics unique to Mr. Todd from which it could be inferred that he was more inclined to feel detained by a request for questioning.

In light of this, I must therefore ask myself whether it could be inferred from the circumstances of the interaction between Cst. Staples and Mr. Todd that a reasonable person in Mr. Todd’s circumstances would have believed he had no choice but to remain on the scene and answer the questions put to him by Cst. Staples. [ 60 ] Turning to the jurisprudence, there are some appellate-level decisions that have similar, but not exactly the same facts as those found in Mr. Todd’s situation.

In R v Tran , 2010 ABCA 211 at paras 25–30 , 258 CCC (3d) 19, the police officer informed the accused he was free to go after a traffic stop, but in a conversational sort of way asked him if he was willing to answer a few questions. The officer went on to inform the accused that he did not have to answer the questions but, at the same time, rested his hands on the passenger-side window when the request was made. The trial judge accepted the accused’s evidence that he felt compelled to answer the questions because they were posed by a police officer and, as such, he did not believe he was free to leave.

The trial decision was overturned on appeal largely because the trial judge had overemphasized the driver’s subjective evidence without regard to what was objectively reasonable in the circumstances. [ 61 ] R v Schrenk , 2010 MBCA 38 , 254 CCC (3d) 277, is another appellate-level decision bearing similar facts. The accused had been pulled over by a police officer who noticed he was driving a car with Alberta rental plates. Suspecting the driver may be unlicensed or suspended, the officer pulled him over.

The officer’s suspicions were further aroused when the accused told him that he flew from Vancouver to Calgary, rented a car for a one way trip to Toronto to visit family, who would then fly him back to Vancouver. The officer told the accused he was free to go and wished him a safe drive. The officer waited a few seconds then asked the accused if he would answer a few questions, but informed him that he did not have to. The accused said “Yeah, sure” to which the officer immediately asked him if there was a big drug problem in British Columbia.

The driver’s responses to that question, both verbal and in mannerism (hands visibly shaking), constituted the tipping point for the officer to detain the driver. The trial judge concluded the accused was not psychologically detained. The Manitoba Court of Appeal upheld the lower court decision. [ 62 ] That said, there is at least one appellate-level decision that has gone the other way. In R v Blanchard , 2011 NLCA 33 , 277 CCC (3d) 343 [ Blanchard ], the accused was pulled over for speeding.

During the course of the stop, the police officer made a number of observations similar to those that had been made by Cst. Staples, ran the accused’s information through police databases without a hit and ended the traffic stop with a warning. The officer told the accused he could leave but subsequently asked him if he would answer more questions about his trip. The officer obtained further information that he then used to form grounds for detention. Drugs were eventually found in the vehicle and the accused was arrested.

The trial judge found the “Q&A” portion of the interaction to have affected a psychological restraint, which in turn engaged the accused’s s. 10 rights. The trial decision was upheld on appeal without comment or elaboration on the s. 9 analysis. [ 63 ] With that, I return to Mr. Todd’s argument, which requires me to consider all of the relevant circumstances to determine if a reasonable person in his position would have concluded his right to leave had been curtailed. As mentioned above, Grant calls for an objective analysis of this inquiry having regard to three broad considerations.

Turning to the first Grant factor – the circumstances leading up to the interaction at the truck – we know it started as a routine traffic stop prompted by Mr. Todd’s speeding. Mr. Todd gave a brief nod to Cst. Staples, which the latter took as Mr. Todd’s acknowledgment that he was travelling in excess of the speed limit. Mr. Todd gave Cst. Staples his documents to run through police databases and those documents were returned to Mr. Todd without delay or any indication from Cst. Staples that Mr. Todd was suspected of anything beyond a speeding infraction.

As mentioned above, no issue is taken with the legitimacy of the traffic stop or Cst. Staples’ right to detain Mr. Todd for that purpose. [ 64 ] But, as Mr. Todd correctly points out, Cst. Staples did not specifically tell Mr. Todd the traffic detention was over; albeit, he did say that he was free to go. Nor did Cst. Staples tell Mr. Todd that he was under no obligation to answer his questions. The interaction that immediately followed was not for purposes of obtaining general assistance at a crime or accident scene, to maintain public order, or for anything to do with traffic safety.

Constable Staples admitted that, at this point in their interaction, he had no right to detain Mr. Todd. By the same token, though, Cst. Staples testified that, in his experience, it was not unusual for people to just drive away.

[ 65 ] There was no other evidence that may have had a bearing on how someone in Mr. Todd’s shoes would have perceived his liberty. For example, Cst. Staples had returned Mr. Todd’s licence and registration. There was no evidence of anything physically blocking Mr. Todd’s truck or inhibiting his exit from the scene. Constable Staples’ patrol car was behind Mr. Todd’s truck and no barriers had been placed in front. Nor was there any evidence Cst. Staples had taken steps, such as shining a flashlight in Mr. Todd’s eyes, or encroaching upon Mr.

Todd’s personal space by leaning into the window or holding on to the door. [ 66 ] The second Grant factor examines the nature of the police contact. I find Cst. Staples’ conduct leading up to and during this questioning highly relevant. Mr. Todd was given the option to leave or remain at the scene to answer a few questions. Constable Staples did not command Mr. Todd to stay or demand that he answer his questions. There was no indication Cst. Staples was anything but professional with Mr. Todd. The questioning was of short duration – two or three minutes at best. There was no evidence Cst.

Staples was overbearing, had leaned into Mr. Todd’s truck or, unlike the facts in Tran , placed his hands on the window or door. [ 67 ] The third Grant factor calls for an examination of the characteristics of the accused, including age, physical stature, minority status or level of sophistication. As mentioned, Mr. Todd did not testify and there is no evidence touching on any of these considerations. [ 68 ] Mr. Todd bore the onus of establishing, on a balance of probabilities, that he was psychologically detained during this brief interaction with Cst. Staples.

Taking all of the factors into consideration, examined as I must from an objective perspective based on the record, I am not satisfied Mr. Todd suffered a significant deprivation of liberty when he remained at the scene to answer Cst. Staples’ questions. Rather, the evidence supports the conclusion that the detention occurred when Cst. Staples actually told Mr. Todd he was being detained for a drug investigation and not beforehand. While it is true Cst.

Staples’ questioning during this two to three minute span was geared towards uncovering information about a potential drug offence, as the Supreme Court made clear in Grant , focused suspicion, in and of itself, does not convert an interaction with police into a detention within the meaning of s. 9 (at para 41). [ 69 ] In conclusion, there was no s. 9 violation when Mr. Todd remained at the scene to answer a few questions, but Mr. Todd was detained from the point in time when Cst. Staples told him that he was being detained for a drug investigation. C. Was Mr.

Todd given his right to counsel without delay? [ 70 ] Mr. Todd’s detention engaged his rights under s. 10(

b) of the Charter . It is Mr. Todd’s position that had Cst. Staples provided him with his right to counsel, he would have been alerted to the jeopardy he was facing and, having been so informed, he may not have blurted out anything in the back seat of the patrol car. Building on these Charter violations, Mr. Todd argues that what he said in the back seat of the patrol car was inadmissible and, without this statement or utterance, the arrest was unlawful. [ 71 ] The discrete question on this appeal is whether Cst. Staples discharged his informational obligation under s. 10(

b) to inform Mr. Todd of his right to retain and instruct counsel without delay. [ 72 ] To advance this argument, Mr. Todd points to the precarious position and obvious jeopardy he was facing the moment Cst. Staples told him he was being detained for a drug investigation. As such, Mr. Todd argues, he should have been informed about his right to retain and instruct counsel immediately, not several minutes later in the patrol car.

He maintains the consequence of this breach led to the following series of cascading events: if he had received his rights, he would not have incriminated himself; without his in-car utterance, Cst. Staples would not have had grounds for arrest; and without the arrest, the search could not have been lawfully undertaken. In short, Mr. Todd argues none of these events would have occurred had he been advised of his right to counsel at the point in time when he was told he was being detained and asked to exit his vehicle. [ 73 ] Since the trial judge failed to determine the s. 10(

b) issue even though it was part of Mr. Todd’s Charter application, it is necessary for this Court to do so based on the evidence called on the voir dire . 1. The law [ 74 ]

Section 10(

b) guarantees every person the right to retain and instruct counsel without delay and to be informed of that right. This Charter right is engaged on arrest or detention and operates in tandem with the right to silence protected by s. 7 of the Charter . The police must discharge their obligation to advise of the right to counsel “without delay” to minimize the risk of self-incrimination. The narrow question posed on this appeal concerns whether Mr. Todd was informed of his right to counsel “without delay”. [ 75 ] As explained in Suberu , the phrase “without delay” must be understood with a purposive approach to the Charter in mind. At paragraph 40 the Court said: ... [t]he purpose of s. 10(

b) is to ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination. [ 76 ] Police detention places a detainee in a vulnerable state and gives rise to the dual concern of loss of liberty and the possibility of self-incrimination.

To guard against these risks “it is only logical that the phrase ‘without delay’ must be interpreted as ‘immediately’” ( Suberu at para 41 ). Having concluded that the right must be taken to mean “immediately”, and that some form of permissible delay would be an unworkable concept, the Supreme Court in Suberu framed the temporal aspect of the police obligation in this way (at para 42): … In our view, the words ‘without delay’ mean ‘immediately’ for the purposes of s. 10( b ).

Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter , the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention. [ 77 ] This Court applied Suberu in R v Hebrada-Walters , 2013 SKCA 24 at para 33 , 409 Sask R 229, where it stated that even a

short period of investigative detention does not suspend this Charter right: The term “without delay” in s. 10(

b) means “immediately” ( Suberu , para. 41 ). There is no temporary suspension of this right in cases of short investigative detentions ( Suberu , para. 45 ) which at most was what was happening prior to the arrest. The police therefore failed to inform Mr. Hebrada-Walters of his s. 10(

b) rights when he stepped from the vehicle during the harassment investigation. However, it is clear that the breach was a technical one only. The police were unaware there was a detention and matters moved swiftly forward. [ 78 ] Most appellate decisions following Suberu have taken a relatively unforgiving stance as to when s. 10(

b) rights need to be given to a detainee, generally holding no excuse, absent public or officer safety concerns, justifies delay in informing the person of his or her rights (see for example: R v Mian , 2014 SCC 54 , [2014] 2 SCR 689; R v Culotta , 2018 ONCA 665 , 364 CCC (3d) 191, aff’d 2018 SCC 57 ; R v Mhlongo , 2017 ONCA 562 , 355 CCC (3d) 1; R v Pearson , 2012 ABCA 239 , 289 CCC (3d) 1; R v Strilec , 2010 BCCA 198 , 256 CCC (3d) 403). [ 79 ] Officer or public safety concerns can give rise to some measure of delay; however, these concerns must be more than theoretical or general in nature in order to justify suspension of the right to counsel.

That is to say, there must be some concrete evidence put forth beyond the expression of an abstract concern. Whether there is a legitimate basis to suspend the right to counsel entails a fact- sensitive inquiry. As explained by the Ontario Court of Appeal in R v La , 2018 ONCA 830 , 366 CCC (3d) 351 [ La ], albeit in the context of the implementational component of the s. 10(

b) right: [39] Those concerns must be circumstantially concrete. General or theoretical concern for officer safety and destruction of evidence will not justify a suspension of the right to counsel: R. v. Wu , 2017 ONSC 1003 , 35 C.R. (7th) 101, at para. 78 ; R. v. Patterson , 2006 BCCA 24 , 206 C.C.C. (3d) 70, at paras. 41-42 , and R. v. Proulx , 2016 ONCJ 352 , at para. 47 . Rather, the assessment of whether a delay or suspension of the right to counsel is justified involves a fact specific contextual determination: Wu , at para. 78 . [40] The emphasis in the s. 10(

b) jurisprudence for a fact specific contextual analysis was recently explained by Doherty J.A. for this court in Rover at para. 27: These cases have, however, emphasized that concerns of a general or non-specific nature applicable to virtually any search cannot justify delaying access to counsel. The police may delay access only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel.

Even when those circumstances exist, the police must also take reasonable steps to minimize the delay in granting access to counsel. [Citations omitted]. 2. Application to Mr. Todd [ 80 ] The salient timeline for purposes of this analysis is as follows: Mr. Todd was pulled over for speeding at 11:22 p.m.; approximately three minutes later, at 11:25 p.m., the traffic stop ended. At this point, Cst. Staples initiated his interaction with Mr. Todd at the truck. His questioning lasted approximately three minutes until 11:28 p.m., at which point Mr.

Todd was told that he was being detained as part of an investigative detention. Mr. Todd was told to proceed to the patrol car on three occasions. Constable Staples put Mr. Todd in the back seat of the patrol vehicle without handcuffing him or performing a pat-down safety search. After Mr. Todd was placed in the vehicle, but before he was given his right to counsel, he blurted out his “duffle bag” comment (see paragraph 34 above). Mr. Todd’s utterance gave Cst. Staples grounds for arrest at 11:31 p.m. Mr. Todd was given his right to counsel at 11:33 p.m. [ 81 ] As discussed above, Mr. Todd’s s. 10(

b) rights would have been engaged at 11:28 p.m. when Cst. Staples informed him he was detained for a drug investigation. As a matter of law, this meant Mr. Todd was entitled to be informed of his right to counsel at that moment absent a public or officer safety issue that could have justifiably suspended notification of his rights ( Suberu at para 42 ). Constable Staples testified that Mr. Todd was cooperative and that he steered him towards the passenger-side door of his vehicle to keep him away from oncoming traffic. In relation to possible officer safety concerns, Cst. Staples testified as follows: ...

Or I should -- I should go back. I asked him [if] he had anything on -- on himself, like needles, knives, anything like that. He -- he said, No, and he was kind of showing me that he didn’t have anything. I believe he pulled a wallet out of his pocket and he said, This is all I have. And I was satisfied that he -- he didn’t have anything else on him. He -- he wasn’t wearing any big, baggy clothes or coats or anything. ... ... Q Right.

A When -- before I put him in the back seat of my car, I just want to make sure that he doesn’t have anything really dangerous on him, like for -- for officer safety reasons, my own safety reasons. And the way he was showing me he didn’t have anything else other than his wallet, I -- I was okay with that. I usually don’t put somebody in handcuffs when they’re detained, especially when they’re being cooperative, and he was be cooperative until he got to the back of my vehicle. Sorry -- sorry, does that answer your question? Q Yeah.

No, I’m just -- at -- at what stage of the detainment do you read them their rights so to speak? A As soon -- as soon as I can . Q Mmhmm. A So -- what my plan was, as soon as he was in the back seat of the car, I was going to get in the front seat of the car. I was going to pull out a card that I read from and I was going to read him -- I was going to tell him again his reason for detainment, but then I was going to read him his rights to counsel and the police caution. (Emphasis added)

[ 82 ] As reflected in his evidence, it was Cst. Staples’ intention to read Mr. Todd his s. 10(

b) rights as soon as he could, which in his mind meant as soon as Mr. Todd was in the back seat of the patrol car, but not before. Constable Staples was cross-examined about why he did not give Mr. Todd his right to counsel sooner: Q Okay. And it’s at that point in time, correct me if I’m wrong, what officers usually do, what they’re constitutionally obligated to do, which is advise your detainee that’s he’s got a constitutional right to call a lawyer, right? A Well, I would disagree with that. Q What would you (INDISCERNIBLE) -- that’s not something that you ordinarily do? A No.

When I’ve detained people I have -- and as quickly as I can, I’ll make sure that they don’t have anything dangerous on them and get them in the back of my police vehicle. [ 83 ] Picking up on the officer safety point, Cst. Staples was then asked if he harbored any safety concerns. The following exchange took place: Q Just a second, you don’t even bother to search this guy, do you? A I didn’t -- I didn’t touch him. I didn’t do a pat down or anything, no -- Q No, my question’s easier. A -- or put him in handcuffs. Oh, good. Q Did you search him before putting him in the back of your patrol car?

A Not physically, no. Q What do you mean, not physically? Is there another way to do it? A Well, I explained what I did. I asked him, Do you have anything on you at all, needles, knives, anything? He -- he said, No. He -- he wasn’t wearing clothing that looked like it could conceal anything dangerous. He pulled out a wallet. He said, This is all I have. And at that point, I was telling him to get in the back seat of my police vehicle. Q So number one, you didn’t bother to search him before putting him in the back of the patrol car, right?

A Again, I -- I didn’t put my hands on him and do any kind of a physical search or pat him down. Q And you don’t bother to advise him of his right to counsel before you put him in the back of your locked patrol car, do you? A No, I didn’t. Q You had plenty of time to do that, right? A Well, I would disagree with that. Q Oh, did you have to be somewhere or -- or what? A I gave him his rights to counsel very quickly. There’s only a period of a few minutes that went by from the time I tell him to get out of his vehicle, to the time that I actually begin reading him his rights to counsel.

And most of that delay is because he wouldn’t get in the back of my police vehicle when I told him to. With -- when you’re on the side of the Number 1 Highway, the last thing you want to do is be standing on the side of the highway with someone, you know. It’s much safer to my mind to have them in the back of my police vehicle and then go about the business of making notes and reading him his rights from my card. I can’t do that standing on the side of the highway. Q You can’t what? You can’t make notes standing on the side of the highway ? A I -- I suppose it’s possible.

I wouldn’t want to. (Emphasis added) [ 84 ] Case law tells us that when a safety concern is advanced as the basis for suspending s. 10(

b) rights, the arresting officer must provide an evidentiary basis for it. Considered in its entirety, I am not satisfied from the record that Cst. Staples believed Mr. Todd posed a danger to officer safety. There was no pat-down search; indeed, Cst. Staples felt there was no need to conduct one or to handcuff Mr. Todd. There was no evidence from the database search that Mr. Todd posed a threat of any sort. There was no evidence the integrity of the investigation could be jeopardized. While Cst.

Staples expressed some concern about the danger of standing on the side of the highway at night, this concern was expressed in no more than a general or theoretical sort of way. In any event, to the extent there was a danger, it was ameliorated when Cst. Staples directed Mr. Todd to the passenger side of the patrol car. In my view, the real reason Cst. Staples delayed giving Mr.

Todd his right to counsel was because, as he said several times in his testimony, he had a plan in mind that he felt would more effectively be executed in the patrol car. [ 85 ] In my view, there was an insufficient evidentiary foundation on the voir dire to support the Crown’s assertion that immediate compliance with s. 10(

b) was impossible or at least undesirable. As explained, there was a lack of a specific officer safety concern. There was no concern about the integrity of the investigation. While the time frame between when Mr. Todd was removed from the truck

(11:28 p.m.) until the time he was given his right to counsel (11:33 p.m.) was brief, I am satisfied Cst. Staples could have advised Mr. Todd of his right to counsel at any point after he asked Mr. Todd to exit his truck, when he walked Mr. Todd toward the patrol car, when he asked Mr. Todd what he had in his pockets, or when Mr. Todd was placed in the patrol car. Even though this was a relatively fluid situation, based on the voir dire evidence and the absence of a specific safety concern, there was no reasonable basis for Cst. Staples to have delayed giving Mr. Todd his right to counsel. Accordingly, Mr.

Todd’s right to be informed of his right to retain and instruct counsel was breached. D. Should the evidence be excluded pursuant to s. 24(2) of the Charter ? [ 86 ] In light of the s. 10(

b) breach, the next question is whether the evidence should be excluded pursuant to s. 24(2) of the Charter . To refresh on this issue, the trial judge dealt with the s. 24(2) remedy in an abbreviated way, concluding that the evidence arising from the search and seizure of Mr. Todd’s truck should be excluded on the basis of a s. 8 breach. [ 87 ] Generally speaking, where a trial judge considers the proper factors and makes no error in principle, his or her s. 24(2) assessment attracts considerable appellate deference ( Grant at paras 86 and 129 ). However, since I have found a s. 10(

b) violation instead of a s. 8 breach, the trial judge’s decision was clearly based on a misapprehension of the underlining violations giving rise to the s. 24(2) inquiry. As such, and as noted in R v Loewen , 2018 SKCA 69 , [2018] 12 WWR 280 [ Loewen ]: “this Court is obliged to disregard the findings of the trial judge to the extent those findings are tainted by the underlying error” (at para 67). On this basis, I will proceed afresh with the s. 24(2) analysis. [ 88 ] Before doing so, I begin by identifying the evidence that is the subject of this analysis.

In his written reasons, the trial judge excluded the evidence arising from the search and seizure of the subject truck, i.e., the cocaine, hash oil, and money. This was sensible in view of how the voir dire evolved. However, my finding on the s. 10(

b) breach changes the s. 24(2) analysis somewhat. As I have explained, the s. 10(

b) violation was followed closely by Mr. Todd’s spontaneous statement in the back seat of the patrol car, that is, it amounted to an invitation for Cst. Staples to search his duffel bag in exchange for a search of his truck. This utterance in turn led Cst. Staples to believe he had reasonable grounds to arrest Mr. Todd, which ultimately resulted in the search and discovery of drugs and money. In view of all of this, Mr. Todd’s utterance and its role in the discovery of physical evidence are important to this analysis. Accordingly, what Mr.

Todd said will be considered alongside the physical evidence in the s. 24(2) analysis. [ 89 ] As established in Grant , s. 24(2) calls for an assessment of whether the admission of the evidence sought to be excluded would bring the administration of justice into disrepute by reference to the following criteria: (

i) the seriousness of the Charter - infringing conduct; (ii) the impact of the conduct on the accused’s Charter -protected rights; and (iii) society’s interest in the adjudication of this case on its merits (at para 71). [ 90 ] Mr. Todd argues that, had he been given his right to counsel promptly, he would not have blurted out the “duffle bag” comment that led inexorably to his arrest, to a search of his vehicle incident to arrest and, ultimately, to the seizure of drugs and money. The entire course of events following his detention – which occurred within a very short time span – logically and progressively flowed from the s. 10(

b) breach and, thus, Mr. Todd argues, was part of a single transaction that culminated with the seizure of incriminating evidence. [ 91 ] The Crown argues there was no causal connection between the s. 10(

b) breach and the discovery of the drugs and money. Mr. Todd’s utterance was an unexpected, albeit fortuitous, disclosure and not the product of efforts undertaken by Cst. Staples to elicit evidence. Since Mr. Todd’s utterance was not preceded by questioning or interrogation, the breach was not egregious. Furthermore, if Mr. Todd’s s. 10(

b) rights were violated, the Crown contends it was the product of an honest mistake by Cst. Staples and not a deliberate act on his part. a. The seriousness of the Charter violation [ 92 ] By reference to Grant , this Court in Loewen framed this stage of the inquiry as one that requires a court to ask “whether admitting the evidence in question would send a message to the public that the courts ‘effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of the unlawful conduct’” ( Loewen at para 69 ).

Deliberate and egregious state conduct favours exclusion of the evidence ( Grant at para 73 ; R v Mian , 2014 SCC 54 at para 84 , [2014] 2 SCR 689). [ 93 ] Since the trial judge did not rule on the s. 10(

b) issue, he obviously did not put his mind to its relative seriousness. That said, the trial judge had the opportunity to observe Cst. Staples on the stand and consider what he had to say in its entirety. From this exercise, he concluded that Cst. Staples “appears to have been aware of the workings of the Charter ” and was “well intended” (at para 33). To the extent these comments constitute a credibility assessment of Cst. Staples, they are, in my view, entitled to a measure of deference. [ 94 ] The trial judge’s comments can also be taken to represent his findings about whether Cst.

Staples’ actions vis-à-vis the breach of Mr. Todd’s Charter rights were intentional in nature. Although principally framed in response to a different Charter violation, the trial judge’s conclusion that Cst. Staples was “well intended” finds support in the evidence and I find nothing to suggest otherwise in relation to the s. 10(

b) breach. In fact, there are two threads in the evidence that support the trial judge’s conclusion. [ 95 ] First, the record does not lend support to the possibility that how the events played out in the back seat of the patrol car was part and parcel of a deliberate plan hatched by Cst. Staples to have Mr. Todd incriminate himself. At most, what transpired was the product of a somewhat rigidly designed plan conjured up by Cst. Staples to deal with Mr. Todd in a Charter -compliant fashion. While Cst.

Staples could be faulted for being overly-fixated on his strategy, having regard to the record, I am satisfied Cst. Staples was aware of his obligations under the Charter and that fixation on his “plan” was not designed to trip up Mr. Todd or deny him his Charter rights. [ 96 ] Second, following Mr. Todd’s detention at 11:28 p.m., Cst. Staples made no attempt whatsoever to elicit incriminating information from him. At most, Cst. Staples answered two questions that had been put to him by Mr. Todd, namely: “[c]an you really just do this?” and “why am I being detained?” The responses given by Cst.

Staples do not undermine my conclusion on this point.

[ 97 ] On the whole of it, I would assess the seriousness of the s. 10(

b) breach at the lower end of the spectrum and, as such, I find that it does not weigh significantly in favour of exclusion of the evidence. b. Impact of the breach [ 98 ] The second stage of the analysis looks at the seriousness of the impact of the breach on the accused’s Charter -protected interests. The trial judge addressed this stage with a conclusory statement and, as mentioned, in light of the s. 8 breach only. [ 99 ] As indicated at the outset of the s. 24(2) discussion, finding a s. 10(

b) breach necessitates an examination of the impact of the breach in reference to Mr. Todd’s utterance and in reference to its role in the eventual discovery of physical evidence. Using the terminology from Grant , the utterance may be characterized as a “statement of the accused”, and the physical evidence may be characterized as “derivative evidence”. I will consider each in turn. [ 100 ] Determining the impact of the breach must be done in reference to the Charter -protected interests of an accused and an examination of the degree to which the violation impacted those interests ( Grant at para 76 ).

Section 10(

b) of the Charter protects against self-incrimination and its breach undermines the detainee’s right to make a meaningful and informed choice about whether to speak to the authorities ( Grant at para 95 ). The more serious the incursion on this interest, the greater the risk that admission of the evidence will bring the administration of justice into disrepute ( Grant at para 77 ). [ 101 ] In this case, Mr. Todd’s right to counsel was delayed by roughly five minutes (11:28 p.m. to 11:33 p.m.). The impact of the breach on Mr.

Todd’s Charter -protected rights was attenuated by the relative brevity of the delay, coupled with the fact Cst. Staples made no attempt to question or elicit incriminating information from Mr. Todd. Constable Staples was not oblivious to the Charter nor did he act to purposefully subordinate Mr. Todd’s rights. As mentioned, Cst. Staples had a plan in place to inform Mr. Todd of his right to counsel; he was going to do that as soon as they were both in the patrol car. However, Mr. Todd abruptly changed the dynamic and direction of those plans on his own accord.

The Court in Grant specifically noted that “when a statement is made spontaneously following a Charter breach … the impact of the breach on the accused’s protected interest in informed choice may be less” (at para 96). [ 102 ] There is some support for the proposition that a voluntary utterance following a s. 10(

b) breach should not be excluded. In R v Guenter , 2016 ONCA 572 , 340 CCC (3d) 351 [ Guenter ], the detainee started to make “voluntary, unconnected utterances” while in the patrol car in the presence of a police officer prior to receiving his s. 10(

b) rights. The accused did not make a s. 10(

b) argument at trial but sought to develop it on appeal. The Ontario Court of Appeal concluded that, even if there had been a s. 10(

b) breach, the evidence would not have been excluded under s. 24(2). The potential relevance of Guenter to the case at hand is obvious. [ 103 ] I will

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