No Charter breach where delay in providing access to counsel resulted from exigent circumstances

Police Powers

Justice Michelle Fuerst, Justice Michal Fairburn and Scott Fenton

Facts: The police obtained a warrant to search the accused’s apartment, as he was believed to be a participant in a sophisticated drug trafficking operation. The lead investigator sought and obtained authorization from a sergeant to conduct a no-knock forced entry early in the morning in the hope of catching the accused asleep. The police were concerned that the accused would destroy evidence if they used a standard knock and announce approach.

Tactical team officers went to the apartment just after 9:00 a.m. They forced the door open with a battering ram. The first officer entered the apartment with his gun drawn. The accused was told to show his hands and come toward the officer. When the accused did not comply with the officer’s directions, the officer administered three open hand “stuns” (strikes) to the accused. The officer got the accused to the ground, and handcuffed him. He gave the accused his Charter rights, cautioned him and told him that he was detained for a CDSA warrant. The accused was seated at the end of the bed and given a copy of the search warrant. The accused said that he understood what he had been told. When asked if he wanted to contact a free lawyer or any other lawyer, he replied that he wanted to contact another lawyer.

The officer did not give the accused the opportunity to contact a lawyer from the apartment, because of officer safety concerns. He later testified that the police intended to execute search warrants at other residences and there were concerns about the safety of the officers involved. Additionally, it was impracticable to give the accused privacy to make a telephone call to counsel from the apartment while the search was taking place.

The officer turned the accused over to a second officer at 9:20 a.m., so that the accused could be taken to a police station where private access to counsel would be possible.

The second officer told the accused of his right to counsel and took him to a police station. There he turned the accused over to the lead investigator just before 10:00 a.m. At 11:01 a.m. the lead investigator arrested the accused for possession of cocaine for the purpose of trafficking and possession of the proceeds of crime. He told the accused of his Charter rights. The accused said that he wanted to speak to a lawyer and needed to contact a friend to get the lawyer’s name. The officer told him he would have to wait until all searches were completed. The officer later testified that the primary concern that caused the police to delay in affording the accused the opportunity to consult counsel until all related searches were completed was officer safety, although the potential for the destruction of evidence was also a concern.

At 12:28 p.m. the lead investigator was advised that the final search was executed. He then allowed the accused to call a friend, who would contact a lawyer. The accused was permitted to make numerous calls after that, to friends and a lawyer although he was unable to speak with counsel.

At trial, the accused applied to exclude the cocaine, cash and drug paraphernalia seized in the search of his apartment, on the ground that his Charter s. 10(b) right to counsel was breached by the delay in providing him access to counsel.

Held: Application dismissed.

The trial judge acknowledged that s. 10(b) imposes a duty on the police to provide access to counsel immediately upon detention. A delay may be justified in exceptional or exigent circumstances. The burden is on the Crown to justify the delay. There must be evidence from which a judge can conclude that specific articulated concerns existed at the time the accused’s right was suspended. The trial judge found that the Crown had demonstrated that there were specific concerns about officer safety and the possible destruction of evidence, related to the execution of multiple residential search warrants that morning. There was evidence that the targets of the warrants were involved with one another in a commercial drug trafficking operation. The police had a valid basis for concern that the targets might communicate with one another before the commencement of all of the searches, thereby putting officer safety at risk. If the accused had been given access to a telephone immediately upon arrest, he could have alerted the others to the search at his apartment, and so create a potentially dangerous situation at the other target locations. Additionally, such advance notice would have afforded ample opportunity for the destruction of evidence. The existence of such a risk was illustrated by the fact that the accused contacted a friend, and not counsel when ultimately given access to a telephone. The almost three hour delay in permitting the accused to contact counsel resulted from exigent circumstances. There was no s. 10(b) breach.

Commentary: It was critical to the trial judge’s analysis that this was not a case of a vague or generalized threat to interference in the search warrant process, or of the police simply pursuing a policy or practice of denying a detainee access to counsel until a specific phase of the investigation was completed for the sake of investigatory expediency. There was evidence upon which the trial judge could find that the lead investigator turned his mind to the specifics of the particular situation, and made a decision based on his assessment of that situation as it related to officer safety and the destruction of evidence.

R. v. Chang, 2017 ABQB 348, 2017 CarswellAlta 913 (Alta. Q.B.)