THUNDER BAY — The Ontario Court of Appeal has overturned the guilty verdict handed down in a Thunder Bay court for a man charged with numerous firearms offences and with possessing proceeds of crime.
The court ruled key evidence presented during his trial should have been excluded on the basis he hadn't been allowed to consult a lawyer in a timely way after he was arrested.
The 26-year-old accused from Ajax, Ont. was arrested in Sept. 2020 when the Thunder Bay Police Intelligence Unit apprehended him during a drug trafficking investigation in the zero-to-100 block of Cumberland Street North.
Officers found him carrying $2,500 in cash, but no drugs.
A subsequent search of his vehicle revealed a loaded handgun.
He invoked his right to counsel, but nearly 10 hours passed before the man got to speak with his lawyer because police wanted to search his apartment first.
The investigation dated back to 2019, when police started learning from multiple informants that someone was selling drugs out of an apartment in the 500 block of Gore St. W.
The lead investigator ultimately came to believe he had grounds to arrest a suspect and to obtain a warrant to search his apartment.
However, he and his superiors decided not to apply for the warrant until after the person had been arrested, in order to avoid having to use the Emergency Task Force to enter the apartment.
When police observed the suspect's vehicle outside a hotel in Sept. 2020, the lead officer also decided to request warrants to search the vehicle and a hotel room, in addition to the apartment.
The man was arrested in the early afternoon while walking from the hotel to his car, and was immediately advised of his rights.
He asked to speak with his lawyer "right now," but that only happened late in the evening.
A decision had been made to not allow him to contact a lawyer until after the warrants were executed, because police were concerned other individuals would learn about the arrest, and might conceal or destroy evidence.
At the trial, a Superior Court justice found the long delay was an infringement of the section of the Charter of Rights and Freedoms that guarantees the immediate right to consult a lawyer upon arrest.
He said the decision to arrest prior to executing a search warrant was reasonable based on the man's history of violence with firearms, but that grounds for a warrant existed prior to the arrest, and the warrant could have been obtained beforehand.
However, the cash and the gun, which were essential to the prosecution's case, were still admitted into evidence on the basis the breach did not lead to police obtaining any other evidence.
The appeal court determined the trial judge erred by treating the impact of the breach as "neutral at best."
The judge who wrote the decision, released last week, said "This ignored the serious impact it had on the appellant's security of the person. He was held in custody without access to counsel for ten hours, nine of which I find were unjustified."
He noted the trial judge had found the Thunder Bay Police Service did not have a policy of routinely delaying detainees' access to counsel, and agreed that this put this instance of a Charter breach "at a lower point on the spectrum of seriousness."
But in upholding the appeal against the convictions, he wrote that the breach was "the predictable outcome of a deliberately chosen operational plan, approved by senior officers, that treated the appellant's Charter rights as unimportant."
He said there was no legal or practical impediment that would have stopped TBPS from obtaining the search warrant for the apartment before the suspect was arrested, but it instead adopted a course that ensured he would be held without access to a lawyer for hours.
