The police showed up around midnight with a warrant to search a residential property in Oshawa, Ontario. Roydel Ramsay-Morris was arrested in the backyard and detained for two hours before he was given the right to call a lawyer. A ruling from the Ontario Court of Justice excluding a loaded firearm from evidence completes a trilogy of recent cases that highlight the parameters of society’s interest in a trial on the merits in a rule of law state.

1. Introduction 

On November 28, 2024, Justice Derek Ishak of the Ontario Court of Justice released the ruling in R. v. Ramsay-Morris excluding a loaded firearm from evidence under s. 24(2) of the Charter of Rights and Freedoms stemming from a violation of his right to counsel by the police under s. 10(b) of the Charter. (here) On September 27, 2022, Mr. Ramsay-Morris had been arrested in the backyard of 100 Taunton Road in Oshawa, Ontario. Five other people were located on the premises when the police entered with a search warrant – five in the living room and three others in the backyard. The violation of the right to counsel resulted from Mr. Ramsay-Morris’ detention without being provided an opportunity to call a lawyer while the search warrant was being executed. The ruling presents an opportunity to round out a trilogy of recent cases where real evidence was excluded as a result of police conduct during arrest or detention that I discussed in the last two posts to On The Wire. (here and here)

2. Background

The events underpinning the Charter breach are intermingled with important findings by Justice Ishak about the credibility and reliability of the police officers as well as Mr. Ramsey-Morris who testified on the pre-trial motion. Critical to the credibility assessment was the evidence of the officer designated as the “central note taker” for the search team. I will condense Justice Ishak’s findings to the critical events in the timeline. Members of the Toronto Police Service, Emergency Task Force, initiated a dynamic entry into unit 44 at 100 Taunton Road at 11:47 p.m. The ETF located the nine occupants and turned the premises over to officers with the Guns & Gangs unit. The police told Mr. Ramsay-Morris he was under arrest for possession of a firearm while in the backyard but he was not read his Charter right to counsel. The search at the Taunton Road residence was completed at 12:51 a.m. but Mr. Ramsay-Morris was held at the scene in a “scout car” pending the execution of a second warrant at another location. He was then moved, shortly after 12:55 a.m., to a nearby plaza.

One of the officers who had custody of Mr. Ramsay-Morris during the plaza phase of the detention testified he was never instructed to provide him with his right to counsel or facilitate a phone call. He said “it could not be done […] with a search warrant being conducted and a second on the cusp of being executed […].” From 1:00 a.m. to 1:40 a.m., Mr. Ramsay-Morris remained handcuffed in the rear of the scout car at the back of the nearby plaza that he described as a “dark laneway” that made him uncomfortable. Finally, at 1:50 a.m. he was read his right to counsel. He asked to speak to a lawyer from Toronto and was driven to a police station arriving at 2:01 a.m. He was not taken to a private room but used a sergeant’s cell phone on “speakerphone” while in the police vehicle at 2:04 a.m. Justice Ishak accepted his evidence that the call was not in private as he could hear the officers outside “talking and laughing”. The call was disconnected and a second call was made from the police station at 3:46 a.m.

3. The Charter Violations

Mr. Ramsay-Morris was arrested at the Taunton Road residence at 11:47 p.m. but not given an opportunity to call a lawyer until 2:04 a.m., over two hours later during which time two components of the right to counsel were breached. First, it is well recognized that the police may delay facilitating the right to call a lawyer while a search warrant is being executed. (here) However, concerns merely of a general nature cannot justify delay. In R. v. Rover, the Ontario Court of Appeal emphasized that delay can only be justified on some reasonable basis such as police or public safety, or the need to preserve evidence. (here) In this case, delay based on “avoid[ing] a potentially unnecessary booking process” or because “another search warrant [was] about to be executed” was unreasonable. Justice Ishak therefore held that “expediency and convenience are not valid reasons to withhold a call to counsel”. (here)

Second, a fundamental consideration of the implementational component of the right to counsel is whether a detainee was given the requisite privacy in which to exercise the right. (here) As the Ontario Court of Appeal said in R. v. Playford, “[i]t would defy common sense to expect an accused person to instruct counsel properly when his instructions can be overheard by […] police officers.” (here) Even in cases where no actual invasion of privacy occurred, a breach may still be found if a detainee believed he or she was not given the privacy necessary to instruct counsel and the belief was reasonable in the circumstances. (here) Given the proximity of the officers to the police vehicle, their ability to hear Mr. Ramsay-Morris knock on the window to get their attention and his ability to hear them talking and laughing while he was on speakerphone, Justice Ishak accepted his evidence that “he believed his call with counsel was not private”.

4. The Exclusion Analysis

Would the admission of the loaded gun into evidence bring the administration of justice into disrepute under the three-pronged test set out by the Supreme Court of Canada in R. v. Grant? (here) The first prong required Justice Ishak to consider the seriousness of the state conduct. Although this was not a case of systemic disregard for constitutional rights, the breaches could not be said to have occurred in good faith. Despite nearly fifty years of cumulative policing experience not one officer who testified on the motion was able to articulate that the right to counsel is to be provided immediately upon arrest. As a result, Mr. Ramsay-Morris was not given his right to counsel for two hours – a breach that had to be considered together with the failure to provide circumstances of privacy. Justice Ishak emphasized there was another option available to the police. They could have taken Mr. Ramsey-Morris to a police station “the nearest of which was a seven-minute drive away”. The first factor therefore favoured exclusion.

The second prong required consideration of the impact of the state conduct on Mr. Ramsay-Morris’ Charter rights. As I discussed in my last post on this topic, the right to counsel on arrest is widely regarded as a lifeline to the outside world. It is the means by which an arrestee may obtain information from a lawyer about the right against self-incrimination and post arrest procedures such as bail. Although the lack of a causal connection between the Charter breach and the finding of the gun “somewhat attenuate[d] the seriousness of the breach”, the violation had a “significant impact” on Mr. Ramsay-Morris’ Charter-protected interests. He was detained after a dynamic entry at night and waited two hours before being given his right to counsel. He was handcuffed in a police vehicle for the last forty-five minutes in a dark laneway behind a plaza. He was never told why he was moved to the laneway nor when he could call a lawyer. The second prong thus favoured exclusion.

There was little question that the third prong, society’s interest in a trial on the merits, favoured admissibility. The evidence was reliable, it was critical to the state’s case and the offence was serious. The reported case law in Canada, and particularly in Ontario, is replete with judicial commentary that “[g]un crime has become a cancer” and handguns are a “prevalent menace” in Toronto. (here and here) As I discussed in my last post, the third factor becomes important where one, but not both, of the first two prongs pull toward exclusion of the evidence. However, where the first and second prongs, taken together, make a strong case for exclusion, society’s interest in a trial on the merits will seldom if ever tip the balance in favour of admissibility. Justice Ishak therefore concluded that the seriousness of the police conduct could not be ignored and the balancing of the three factors favoured exclusion.

5. Conclusion

I suggested that the cases considered in my last two posts, R. v. Gallant in the Alberta Court of King’s Bench and R. v. Samuels in the Ontario Court of Appeal, together with this ruling in R. v. Ramsay-Morris, may be viewed as a trilogy on society’s interest in a trial on the merits. Although there are many reported cases where society’s interest outweighed findings on the first two factors that favoured exclusion, I will call these recent rulings a “rule of law” trilogy. I take that from the opinion of the Supreme Court of Canada in R. v. Le. (here) While disrepute may result from the exclusion of relevant and reliable evidence it may also result from”admitting evidence that deprives the accused of a fair hearing or that amounts to judicial condonation of unacceptable conduct by the investigatory and prosecutorial agencies”. A trial on the merits “in a rule of law state” presupposes one that is “grounded in legality and respect for longstanding constitutional norms.”