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| John L. Hill |
A half-hour passed. Brown was told he would be taken to the police station and allowed to call his lawyer. However, no effort was made to facilitate the call upon arrival at the station. It took over two hours before the call was made.
At trial, Brown maintained there were two breaches of his s. 10(b) Charter right to retain and instruct counsel without delay: The first was the delay while awaiting transport to the station, and the second was the laxity in not facilitating a call to be made while at the station. The Crown admitted there was a violation of the Charter but only concerning what occurred at the station. Nonetheless, the evidence should be accepted because, under Charter s. 24(2), evidence becomes inadmissible only when, considering all the circumstances, its admission would bring the administration of justice into disrepute.
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The Ontario Court of Appeal heard Brown’s appeal in September 2024 and released its decision on Oct. 17 (R. v. Brown, 2024 ONCA 763). The appeal court accepted that this arrest occurred during a Toronto Guns and Gangs task force investigation of a third party’s involvement in a shooting. That investigation implicated Brown’s girlfriend, and the Toronto police obtained a search warrant for the girlfriend’s apartment and car. Toronto Police notified Durham Regional Police of the investigation in the Durham region. Brown and his friend entered the woman’s Bowmanville apartment building. When police announced their presence, Brown and the woman attempted to flee, and Brown reached for his waistband. He was taken to the ground, disarmed and handcuffed.
The Court of Appeal refused to intervene with the trial judge’s acceptance of evidence obtained notwithstanding a Charter breach. It accepted that section 10(b) of the Charter has both “informational” and “implementational” components. Informational elements include notifying the accused of the Charter right and refraining from eliciting evidence from the accused (R. v. Suberu, 2008 SCC 33, and R. v. Taylor, 2014 SCC 50). However, recent jurisprudence explains that implementation may be delayed when the Crown can prove “exceptional circumstances” (R. v. Brunelle, 2024 SCC 3) or when reasonable grounds exist justifying a delay such as “the destruction of evidence, public safety, police safety, or some other urgent or dangerous circumstance” (R. v. Rover, 2018 ONCA 745) provided that police move efficiently and sensibly to minimize delay (R. v. Keshavarz, 2022 ONCA 312).
In this case, the Court of Appeal held that the first reasonable opportunity to contact counsel did not occur until Brown arrived at the police station. No bad faith was shown that Toronto police dragged their heels in arranging transport. On the contrary, the trial judge found that the police acted professionally with due consideration to the 10(b) obligation while engaging in critical tasks related to officer and public safety.
Brown had to wait just over two hours at the Durham Regional Police Station before contacting a lawyer. The Crown admitted that Charter s. 10(b) was breached due to this delay. The officer driving the transport van was advised that Brown should be allowed to make his call as soon as possible upon arrival.
Despite the breach, the Court of Appeal accepted the trial judge’s decision to admit the guns and drugs under Charter s. 24(2). A ruling that such evidence was inadmissible was averted because Durham Police never attempted to elicit evidence while at the station. The evidence found was reliable and pointed to serious criminal activity. Its admission would not put the administration of justice into disrepute.
Brown had a lengthy record of firearm convictions and was on parole when arrested. In the sentence appeal, the appellant asked for a reduction of time to be served based on Charter breaches. Since none were found, the sentence appeal was also dismissed.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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