Delaying Right to Counsel and Failing to Make Reasonable Inquiries before an Arrest

R v. Brunelle, 2024 SCC 3 – Background:

Project Nandou began in November 2014 in relation to allegations of organized trafficking in narcotics. During Project Nandou, the police obtained warrants, 40 of which required police to give notice of a covert search to the persons concerned before the date specified in the warrant. Twenty of the warrants were executed, but no notice was given for any of them.

On the morning of March 31, 2016, most of the 31 appellants were arrested at their residences in the first few minutes of the operation. Others were arrested at various locations later that day and in the days that followed.

All of the appellants acknowledged they were informed of their right to retain and instruct counsel without delay at the time they were arrested; however – they did not all respond the same way. Many indicated a desire to exercise their right as soon as they were informed of it, some did not ask to exercise their right until they were at the police station, and others said they did not wish to retain and instruct counsel or they had already done so. Of those who indicated a desire to exercise their right to retain and instruct counsel without delay, only one was given an opportunity to do so while in the police vehicle; the others had to wait until they arrived at the station. The time between the arrest and an opportunity to contact counsel ranged from 23 minutes to 1 hour and 6 minutes.

Following a preliminary inquiry, the 31 appellants were ordered to stand trial and were later divided into four groups for separate trials. The seven appellants in group 1 (the “Group 1 Appellants”) filed a motion for a stay of proceedings and exclusion of evidence for the following allegations:

1. the failure to facilitate the requested access to counsel at the first reasonably available opportunity during the March 31, 2016 police operation resulted in an infringement of their s.10(b) right to counsel;
2. the failure to give notice of a covert search within the allotted time resulted in an infringement of their s.8 search and seizure rights; and
3. the execution of search warrants outside the judicial district of the authorizing justices without the warrants being endorsed within the meaning of the former s.487(2) of the Criminal Code also resulted in the infringement of their s.8 rights.

The Group 1 Appellants alleged that the accumulation of these infringements met the threshold for establishing an abuse of process. The Superior Court granted the motion and stayed the proceedings against them. The Superior Court also stayed the proceedings against the appellants in groups 2, 3, and 4. The Court of Appeal set aside the two stays and ordered a new trial.

On appeal to the Supreme Court of Canada, the court considered four issues:

1. whether all the appellants had standing to apply for a remedy under s.24(1) of the Charter;
2. whether the Superior Court erred in finding there was an abuse of process in the residual category;
3. whether the Superior Court erred in entering a stay of proceedings for all the appellants; and
4. whether the Crown could raise the Superior Court’s failure to consider the particular circumstances of the arrest of each appellant in groups 2, 3, and 4 after consenting to judgment.

The main discussion in this decision related to the alleged failure to facilitate access to counsel, and whether the Superior Court judge properly considered all of the circumstances for each arrest that led to the delay.

Failure to Facilitate Access to Counsel

The Superior Court found that four of seven Group 1 Appellants expressed a desire to immediately exercise their right to retain and instruct counsel but were told the right would be exercised at the police station. The Superior Court concluded there was a police practice that amounted to a “reverse onus” whereby police officers refused to consider the immediate exercise of the right to counsel unless the detainee specifically requested it. The Supreme Court of Canada deferred to this finding but was of the view that the existence of such a practice, without more, did not permit the Superior Court to infer that their s.10(b) rights were infringed. As a general rule however, police cannot assume in advance it would be impracticable to facilitate access to counsel – they must be mindful of the particular circumstances of the detention and take proactive steps to turn the right to counsel into access to counsel.

While improper and misconduct, an advance assumption by police that it is reasonable to delay the implementation of the right to counsel, without regard to the circumstances of the detention, is not in itself a s.10(b) infringement. The central question remains whether the delay was reasonable having regard to all the circumstances.

In this case, the Supreme Court of Canada held the Superior Court erred in failing to consider the particular circumstances of each arrest affecting the delay, such as the other three appellants accessing or declining counsel, the fact that a search was in progress, the proximity of the police station, the police officers’ safety, the presence of a telephone at the scene, and issues relating to the confidentiality of any call made. In the result, the ruling was overturned and a new hearing was ordered.

As the Superior Court judge’s conclusion that the Appellants’ s.10(b) rights were infringed was an essential underpinning of his ultimate conclusion that their s.7 rights were infringed as a result of an abuse of process in the residual category (conduct that, without necessarily threatening the fairness of the accused’s trial, nevertheless undermines the integrity of the justice system), the stay of proceedings was also overturned.

R v. Williams, 2024 ONCA 69 – Background

Following his arrest by the Toronto Police Services (“TPS”) in early July 2020 for an alleged assault against his domestic partner, Damione Williams (the “Appellant”), was released on an undertaking that included a no-contact condition. The Appellant was not to contact his partner (the “Partner”) unless she provided written, revocable consent, or if the communication was for the purpose of relationship counselling.

The Partner provided written consent as contemplated by the no-contact condition via email to the officer in charge of the assault investigation. The consent was uploaded to Versadex, the TPS electronic records management system, but not to the Canadian Police Information Centre (“CPIC”).

On August 24, 2020, the Appellant was with the Partner in a Toronto parking lot where a plainclothes operation into breaches of the Cannabis Control Act (“CCA”) was ongoing. An officer ran the Appellant’s license plate on CPIC and learned of the assault charge and undertaking but did not search Versadex to determine if the Partner provided consent. The Partner did not advise officers she had provided consent to communicate with the Appellant.

During this time, officers saw the Appellant in possession of marijuana while in the driver’s seat of the vehicle with the engine turned on. The Appellant was arrested for breach of the undertaking and officers conducted a search of the vehicle, which led to the discovery of a firearm. The appellant was rearrested and tried on a number of firearm charges.

The appellant sought to exclude the evidence of the firearm on the basis that police lacked reasonable and probable grounds to arrest him for breach of the undertaking, violating his rights under s.9 of the Charter. He also argued that police did not have the right to search the vehicle under the CCA on the basis that the evidence put forward by police observing the marijuana in the vehicle was unreliable.

At trial, the judge found that despite operating under incomplete information, the police had reasonable and probable grounds to arrest the Appellant for breach of the undertaking in light of exigent circumstances. The trial judge found that the police validly searched the vehicle pursuant to the CCA and went on to determine that even if he had found a Charter breach, he would not have excluded the evidence under s.24(2) of the Charter.

Did Reasonable Grounds Exist for the Arrest for Breach of an Undertaking?

Arresting officers must have subjectively reasonable grounds on which to base the arrest and those grounds must be justifiable from an objective point of view. In this case, the Appellant was not in breach of the no-contact condition; however, the question of whether there were reasonable grounds for arrest is different.

Reasonable grounds can be based on an officer’s reasonable belief that certain facts exist even if it turns out that the belief is mistaken. However, before reasonable grounds exist, the officer must conduct an inquiry and determine whether the circumstances reasonably permit and take into account all information available. The obligation to take into account all factors has a limit and does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations.

The Court of Appeal found that the trial judge’s focus on whether something was said on arrest (i.e., that the Partner did not mention her consent) was the product of a “legally flawed approach”, because the Partner had previously provided her written consent to the police before the arrest. Thus, the court held the trial judge erred by not considering whether, in light of the situation as a whole, the consent was available information and looking for such consent was an inquiry that the circumstances reasonably permitted.

In concluding the police lacked reasonable and probable grounds to arrest the Appellant for breach of the no-contact condition in the undertaking, thus breaching s.9 of the Charter, the Court found that in circumstances where police were using both CPIC and Versadex to access information relating to the Appellant’s potential arrest, it was unreasonable to not look at Versadex to see whether consent was provided.

In disposing with the other issues, the ONCA found that the police had a legal basis to search the Appellant’s vehicle. Despite the s. 9 breach, the Court concluded that evidence of the firearm should not be excluded. While failing to search Versadex was misconduct of “moderate seriousness”, the impact on the Appellant’s Charter-protected interests was minimal and society’s interest in the adjudication of the case on its merits strongly favoured admission.

Conclusion

In R v. Brunelle, the Supreme Court of Canada considered a police practice whereby officers assumed, in advance, that facilitating immediate access to counsel was impracticable and advised detainees to wait until they arrived at the police station. While not a Charter breach in and of itself, the Supreme Court confirmed the practice is improper and constitutes misconduct.

In R v. Williams, an officer’s failure to check all police databases before conducting an arrest was unreasonable and a breach of s. 9.

These decisions reinforce the importance of making all reasonable inquiries before and after an arrest, including searching all police databases for relevant information to a suspect’s existing undertakings, and ensuring that the circumstances of the arrest warrant delaying a detainee’s right to counsel before doing so.

If you require additional information or further assistance, please contact David McKnight and Naomi Krueger.