The police in Thunder Bay, Ontario, had grounds to obtain a search warrant for Rashawn Samuels’ apartment the day before he was arrested. But they chose to wait until after the arrest to apply for the warrant and denied his right to call a lawyer for nine hours while the warrant was executed. The delay in facilitating the right to counsel prompted a recent ruling from the Ontario Court of Appeal that the police tactic violated the constitutional lifeline to the outside world and breached the defendant’s right to security of the person under the Charter of Rights and Freedoms.

1. Introduction

On October 28, 2024, the Ontario Court of Appeal released the ruling in R. v. Samuels reversing the trial judge who admitted a firearm and cash into evidence following a finding that the police violated the appellant’s right to counsel on arrest under s. 10(b) of the Charter. (here) In delivering the majority reasons, Justice Jonathan Dawe held that the trial judge erred in the exclusion analysis under s. 24(2) of the Charter by treating the impact of the violation on the appellant’s protected interests as “neutral at best” because the breach did not lead to the police obtaining any evidence. The trial judge’s finding “ignored the serious impact the breach had on the appellant’s security of the person” and was a “serious departure from well established Charter standards.” He was held in custody without access to counsel for ten hours, nine of which were unjustified. In separate concurring reasons, Justice J.C. MacPherson disagreed only with the length of unjustified delay – five hours and eighteen minutes as opposed to nine hours. In either case, the delay was “too long”. In excluding the gun and cash from evidence, the panel was unanimous that this was a case where the long-term repute of the justice system required the sacrifice of the short-term benefit of a trial on the merits.

2. Background

On September 1, 2020, Det. Matt Veal of the Thunder Bay Police Service, in Thunder Bay, Ontario, believed he had sufficient grounds to arrest Rashawn Samuels for selling drugs out of an apartment at 515 Gore Street West. He had a search warrant application “practically completed” but decided not to apply for the warrant until after Mr. Samuels was arrested to avoid using the Emergency Task Force to enter the apartment. On September 2, 2020, at 10:00 a.m., officers were directed to arrest Mr. Samuels “on sight” but he would not be allowed to call a lawyer until after the police executed search warrants at the apartment and a hotel room rented by a woman associated with him. Det. Veal, the lead investigator, joined the arrest team and did not assign the task of finishing the search warrant application to another officer because it was “practically completed”. When arrested at 1:54 p.m., Mr. Samuels asked to speak to a lawyer “right now” but was told his opportunity would be delayed. He was taken to the police station at 2:17 p.m.

Mr. Samuels told the police at the station that his wrist may have been broken during the arrest. Paramedics arrived at the station while he was being strip searched. They thought he should be taken to a hospital for x-rays. When he asked if he could call a lawyer from the hospital, he was told, “No, not right now.” That triggered an argument as Mr. Samuels became “increasingly agitated” insisting that he be allowed to call a lawyer before going to the hospital. An officer told him he could call a lawyer “as soon as we’re done what we’re doing”. The police eventually told him that he would not be allowed to call a lawyer until after the search warrants were executed whether he went to the hospital or not. “We don’t have a timeline,” an officer said. “If we had one our whole day would be a lot planned out better, but we don’t know.” At 3:00 p.m., Mr. Samuels was taken to a cell and the paramedics left the station. Det. Veal completed the search warrant applications around 4:30 p.m. and received the signed warrants back at 6:30 p.m.

Around the same time, Mr. Samuels was taken to the hospital by Cst. Bob Simon. Det. Veal told the constable not to let Mr. Samuels speak to a lawyer until he heard back from him. By 8:00 p.m., both search warrants had been executed. At 8:30 p.m., Det. Veal called Cst. Simon and told him Mr. Samuels could speak to a lawyer.  Mr. Samuels first gave Cst. Simon a phone number for his mother. He then gave the constable the name of a lawyer. Then, inexplicably, more than three hours elapsed before Cst. Simon arranged for Mr. Samuels to speak to counsel at 11:50 p.m. There was no dispute, either before the trial judge or on appeal, that the need to execute search warrants can sometimes justify a suspension of the right to counsel but the police must “turn their minds to the specific circumstances”; must have “reasonable grounds to justify the delay”; and, “must move as efficiently and reasonably as possible to minimize any ensuing delay”. (here) The appeal, then, turned on the consequences of the Charter violation.

3. Breach of the Right to Counsel

The police could have achieved their investigative objectives without delaying Mr. Samuels’ right to counsel. First, Det. Veal had grounds to obtain the search warrant for the apartment by September 1, 2020. He could have prepared and submitted the application for the warrant prior to the arrest. Second, the application for the warrant could have been assigned to another officer who could have adopted what Det. Veal drafted on the basis of information and belief. Det. Veal’s belief that another officer would have had to start “from scratch” was incorrect. Third, the police could have made a warrantless entry into the apartment, as they did with the hotel room, to secure it pending the issuance of the warrant. Consideration was apparently never given to the last option. The trial judge concluded that “priority was given […] to police convenience rather than [the appellant’s] Charter rights.” The Crown did not assert on appeal that the trial judge erred in that core finding. As Justice David Doherty said in R. v. Rover “[t]he police cannot create a justification for delaying access to counsel by choosing, for reasons of convenience or efficiency, to arrest an individual before seeking, obtaining and executing a search warrant.” (here)

 4. The Exclusion Analysis

In conducting the three-pronged exclusion analysis “afresh”, Justice Dawe held that, although the Thunder Bay Police Service did not have a policy of routinely delaying access to counsel, the breach was a “significant departure from established Charter standards.” That finding put the breach “at a lower point on the spectrum of seriousness” but was “hardly a mitigating factor” in assessing the seriousness of the Charter-infringing state conduct. (here) The trial judge further erred by focusing exclusively on the lack of a causal link between the breach and the search of Mr. Samuels’ vehicle where the firearm was found. The right to counsel is a “lifeline for detained persons” that gives them “the sense that they are not entirely at the mercy of the police” thus enhancing the Charter-protected interest of security of the person. The booking video showed that Mr. Samuels “badly wanted to speak to his lawyer” and was “distressed when he learned that he would be denied the right to do so for some unknown time”. Although the societal interest in a trial on the merits favoured admissibility, Justice Dawe concluded on balance that the long-term repute of the justice system outweighed the benefit of a trial on the merits.

5. Conclusion

In conclusion, I will first restate the three-pronged test for exclusion developed by the Supreme Court of Canada in R. v. Grant that requires analysis of: (a) the seriousness of the Charter-infringing state conduct; (b) the impact of the breach on the Charter-protected interests of the defendant; and, (c) society’s interest in the adjudication of the case on its merits. (here) The result in Samuels may be seen as an application of the Grant analysis and what the Ontario Court of Appeal said in R. v. McGuffie which I discussed in a previous post to On The Wire. (here and here) The third prong of the test, society’s interest in a trial on the merits, becomes important when one, but not both, of the first two prongs pushes strongly toward the exclusion of the evidence. If the first and second prongs make a strong case for exclusion, the third prong will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two prongs provide weaker support for exclusion, the third prong will almost always tip the scales in favour of admissibility.