Nova Scotia Court of Appeal
Citation: R. v. Lambert and Bailey, 2023 NSCA 8
Date: 20230202
Docket: CAC 501458
Registry: Halifax
Between:
Matthew Ross Lambert
Appellant
v.
His Majesty the King
Respondent
Between:
Docket: CAC 502442
Registry: Halifax
Darcy Peter Bailey
Appellant
v.
His Majesty the King
Respondent
| Judge: |
The Honourable Justice Anne S. Derrick |
| Appeal Heard: |
November 28, 2022, in Halifax, Nova Scotia |
| Subject: |
Criminal law. Charter of Rights and Freedoms. Effect of not invoking right to counsel on the implementational obligations of police. Section 24(2) analysis—R. v. Grant factors and cumulative impact. Conspiracy to import cocaine. |
| Summary: |
The appellants were charged upon the discovery of 157 kilograms of cocaine stowed in the sea chest of a commercial vessel that had sailed from Antwerp. Authorities had become suspicious of activity around the ship while it was berthed in Montreal. Upon the ship’s arrival in Halifax, authorities discovered anomalies with the grate covering one of the sea chests. Men were seen in a pontoon boat around the ship. It was established at trial that these were the appellants and two associates. Their activities raised suspicions. RCMP officers found the pontoon boat and sought to gather information from Mr. Bailey and an associate who were on board. Surveillance by police of the beach area near the ship led to a focus on the appellants and the associates. Mr. Bailey was seen in diving gear in the water with Mr. Lambert watching from the shore. After leaving the beach with what the lead investigator believed was contraband, the appellants were arrested and charged with conspiracy to import cocaine and other offences contrary to s. 465(1)(c) of the Criminal Code and ss. 5(1) and 5(2) of the Controlled Drugs and Substances Act. The trial judge set out a broad overview of the evidence that was gathered in the investigation that ensued, including: electronic devices seized from a vehicle being used by the appellants and from a hotel room; documents seized from residences; video surveillance footage; and witness interviews. Evidence at trial established that prior to the ship’s arrival in Montreal, the appellants knew her destination, had details of her sea chests, had researched and purchased diving equipment and tools that would enable access. The men were shown to have had a prior association with each other and were associated with the suspicious activities around the ship in Montreal and Halifax. A voir dire was conducted to address the admissibility of evidence. The trial judge examined the interaction between police and Mr. Bailey and the associate on the pontoon boat; the lawfulness of the arrest of Mr. Bailey and Mr. Lambert; how Mr. Lambert responded when advised of his s. 10(b) right to counsel; the search warrant for the hotel room; and subsequent judicial authorizations. Concluding that a number of Charter breaches had occurred, she undertook a s. 24(2) assessment for each breach and, finally, looked at the cumulative impact. She admitted significant evidence against the appellants. Following their trial, she convicted them of conspiracy to import the cocaine and related offences. |
| Issues: |
(1) Did the trial judge err by attenuating the seriousness of the police conduct in breaching their Charter rights and by failing to properly consider the cumulative impact of multiple Charter breaches?
(2) Did the trial judge misapprehend the evidence by finding that Mr. Lambert unequivocally waived his right to counsel on arrest?
(3) Should the appellants have been acquitted of conspiracy to import cocaine into Canada on the basis there was a reasonable inference they were simply involved in trying to retrieve the cocaine once it arrived in Canada? |
| Result: |
Appeals dismissed. The trial judge correctly stated that the implementational obligations of police under s. 10(b) of the Charter are triggered by an accused’s request for access to a lawyer. She made a factual determination that Mr. Lambert had made no such request. She did not misapprehend Mr. Lambert’s response when read his rights. Her finding is entitled to deference. The trial judge subjected each Charter breach to a comprehensive analysis according to the three factors in R. v. Grant, 2009 SCC 32. She committed no errors of law or principle in her s. 24(2) analysis and adequately considered the cumulative impact of the breaches in her decision to admit evidence. Having considered the correct factors, her conclusions are to be afforded deference. In convicting the appellants for conspiracy to import cocaine the trial judge concluded the only reasonable inference to be drawn from their communications and conduct was that they agreed, in the context of either an ongoing or new conspiracy, to retrieve, on its arrival, the cocaine heading for Canada and made that agreement before the ship entered Canadian waters. After a thorough and legally correct analysis, the trial judge firmly rejected the “it could have been merely a retrieval operation”. Her determinations attract deference on appeal. |
This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 41 pages.
Nova Scotia Court of Appeal
Citation: R. v. Lambert and Bailey, 2023 NSCA 8
Date: 20230202
Docket: CAC 501458
Registry: Halifax
Between:
Matthew Ross Lambert
Appellant
v.
His Majesty the King
Respondent
Between:
Docket: CAC 502442
Registry: Halifax
Darcy Peter Bailey
Appellant
v.
His Majesty the King
Respondent
| Judges: |
Farrar, Bourgeois, Derrick, JJ.A. |
| Appeal Heard: |
November 28, 2022, in Halifax, Nova Scotia |
| Written Release |
February 2, 2023 |
| Held: |
Appeals dismissed, per reasons for judgment of Derrick, J.A.; Farrar and Bourgeois, JJ.A. concurring. |
| Counsel: |
Joven Narwal, for the appellant, Matthew Ross Lambert David J. Mahoney, for the appellant, Darcy Peter Bailey Paul B. Adams, for the respondent |
Reasons for judgment:
Introduction
[1] On October 6, 2020, Judge Elizabeth Buckle of the Provincial Court of Nova Scotia released written reasons[1] convicting Matthew Lambert and Darcy Bailey of conspiracy to import cocaine, conspiracy to traffic cocaine, attempt to traffic cocaine and attempt to possess cocaine for the purpose of trafficking, contrary to s. 465(1)(c) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 and ss. 5(1) and 5(2) and s.6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Pursuant to R. v. Kienapple[2], she stayed the convictions of attempt to possess cocaine for the purpose of trafficking.
[2] In convicting Mr. Lambert and Mr. Bailey, Judge Buckle relied on evidence she had determined was admissible following a Charter voir dire.[3] The appellants alleged a litany of Charter violations by the police.
[3] Messrs. Lambert and Bailey appeal their convictions for conspiracy to import cocaine and the trial judge’s s. 24(2) decision to admit evidence against them. They ask this Court to undertake a fresh s. 24(2) analysis, exclude the evidence from the trial and enter acquittals on all charges, or exclude the evidence and order a new trial. In the alternative, they request this Court quash their convictions for conspiracy to import cocaine, enter acquittals on that charge and remit the matter back to the trial judge for sentencing on the remaining convictions, or order a new trial on that count in the indictment. They are not appealing their sentences.
[4] As these reasons explain, I am not persuaded the trial judge committed the errors alleged by the appellants and would dismiss these appeals.
Brief Factual Overview
[5] The appellants and two associates, Nelson Alvarado-Calles and Dangis Seinauskas[4], were charged following the discovery of 157 kilograms of cocaine stowed in one of the underwater chambers (sea chest) of the Arica, a commercial cargo vessel. The Arica arrived in Montreal from Antwerp on June 4, 2018. While she was in port, authorities saw a small boat near her stern with a diver in the water. The trial judge described what happened when the Arica arrived on June 9th at her next port of call, Halifax:
…Upon its arrival in Halifax, authorities discovered anomalies with the grate covering one of the Arica's sea chests and saw three or four men in a pontoon boat behaving suspiciously around the vessel. RCMP found the pontoon boat a short time later and had a conversation with Mr. Bailey and Mr. Seinauskas who were onboard. Through that afternoon and early evening, authorities continued surveillance on the Halifax waterfront, around the Arica and at a nearby beach. They came to focus on four individuals, believed to be the accused. By the end of the day, Mr. Lambert, Mr. Bailey, and Mr. Seinauskas had been arrested and the cocaine found in the Arica's starboard sea chest. Mr. Alvarado-Calles was arrested some weeks later in Ontario.[5]
[6] The trial judge’s reasons contain a broad overview of the evidence that formed the case against the accused:
[3] Following the seizure of the cocaine, the investigation continued. Electronic devices were seized from the vehicle and hotel room, documents were seized from residences, business records and video surveillance footage were obtained, and witnesses interviewed. Evidence presented at trial established that prior to the Arica's arrival in Montreal, Mr. Bailey was tracking her voyage and knew her itinerary. Mr. Bailey and Mr. Lambert knew she was destined for Montreal, had details of her sea chests, and had researched and purchased diving equipment and tools that would permit them to access the sea chests. The evidence also established that the four accused had a prior association with each other, were in the boat that had been seen near the Arica in Montreal, and had been in or around the boat, diving gear and the beach in Halifax.[6]
[7] I will return to discussing the evidence when I address the appellants’ complaints about the trial judge’s decisions in relation to the Charter breaches.
Grounds of Appeal
[8] The appellants say the trial judge erroneously attenuated the seriousness of the police conduct in breaching their Charter rights and failed to properly consider the cumulative impact of multiple Charter breaches.
[9] Both appellants characterize their convictions for conspiracy to import cocaine into Canada as unreasonable on the basis the evidence supported an alternate inference they were simply involved in trying to retrieve the cocaine upon its arrival in Canada.
[10] Mr. Lambert also asserts the trial judge misapprehended the evidence by finding he unequivocally waived his right to counsel on arrest, and further, by concluding that if a breach of Mr. Lambert’s s. 10(b) Charter rights occurred, it “was of little consequence”.[7]
[11] I will first deal with Mr. Lambert’s right to counsel issue, then the allegations by the appellants that the trial judge erred in her treatment of the Charter breaches, and finally the conspiracy convictions. I will set out within each issue the trial judge’s findings to the extent necessary, and the applicable standard of review.
Mr. Lambert’s Right to Counsel – The Implementational Duties of the Police
[12] A skeletal description of the facts is all that is necessary to address this ground of appeal.
[13] Mr. Lambert’s arrest occurred on June 9th at a traffic stop. Advised of his right to contact a lawyer he gave a response he says was misapprehended by the trial judge leading her to conclude his s. 10(b) Charter rights had not been violated. He argues a Charter breach occurred due to the police not implementing his right to counsel at the roadside.
[14] On June 9th between 6 and 7 p.m., investigators had Mr. Lambert and Mr. Bailey under surveillance at a beach near where the Arica was moored. Mr. Bailey was observed putting on a diving suit, entering the water and heading toward the ship. Mr. Lambert waited with the vehicle they had arrived in, a Cadillac Escalade SUV. After Mr. Bailey returned to the beach, he and Mr. Lambert left in the Escalade. A decision was made by the lead investigator, Cpl. Aaron Glode[8], that the Escalade should be pulled over and the occupants arrested. D/Cst. Underwood was tasked with effecting these instructions.
[15] The trial judge described the arrest of Mr. Lambert:
[22] D/Cst. Underwood followed the Escalade. He received instructions from Sgt. Glode to stop the vehicle and arrest the occupants. He contacted Sgt. Perry Astephen, a uniform member of HRP, for assistance. At approximately 7:10 p.m., Sgt. Astephen stopped the vehicle and D/Cst. Underwood arrived moments after. D/Cst. Underwood arrested the driver, Mr. Lambert, for conspiracy to import and possession for the purpose of trafficking cocaine, advised him of his right to counsel and cautioned him and asked if he wished to speak to counsel. He indicated he understood his rights and said, "No man, we don't have any cocaine".[9]
[16] D/Cst. Underwood testified Mr. Lambert understood his right to counsel “and at that time, he didn’t ask to speak to a lawyer”. Responding to questions from the Crown, the officer described the exchange:
Q. Okay. All right. So, there’s a point at which the question comes, “Do you wish to speak to a lawyer now?” What was his response to you at that point?
A. It was, “No, man. We don’t have any cocaine.”
Q. Anything else he said to you after the warning was given to him?
A. I believe he made a comment about collecting – collecting algae.
Q. Yeah. And what did you say to him in response to this?
A. I just told him to stop talking.
[17] There is no dispute that when the Escalade was stopped, D/Cst. Underwood complied with the informational obligation aspect of the s.10(b) right to counsel. What is controversial in Mr. Lambert’s view is the trial judge’s conclusion that he waived his right to speak to a lawyer thereby relieving the police of the requirement for implementation.
[18] Mr. Lambert submits his responses—no cocaine and collecting algae—indicate he was responding to the s. 10(a) reasons for arrest rights-recital and not the inquiry about whether he wanted to contact a lawyer. This was the same argument he made to the trial judge, which she rejected. She was entitled to conclude on the basis of uncontroverted evidence that Mr. Lambert understood why he was being arrested, that he had the right to speak to counsel, and that he was being asked if he wanted to do so.
[19] The standard of review—the lens through which I must examine the trial judge’s decision—is one of correctness in relation to the law and palpable and overriding error in relation to her factual findings.[10] There is no suggestion by Mr. Lambert that the trial judge misstated or misapplied the appropriate legal principles. Therefore, the trial judge’s finding that Mr. Lambert waived his right to counsel will not be disturbed on appeal unless it can be established she made a palpable and overriding error.
[20] The trial judge referenced the two aspects of the right to counsel—the informational and the implementational requirements. She found that Sgt. Astephen and D/Cst. Underwood complied with their informational obligations by advising the appellants of their right to contact counsel. Citing authority from the Supreme Court of Canada[11] and the Ontario Court of Appeal[12] she noted that the officers’ implementational obligations “arise only when detainees express a wish to exercise their right to counsel”.[13]
[21] The trial judge found Mr. Lambert’s response to being asked if he wished to contact counsel was “a direct response” to that question and not related to the police officers advising him the arrest was for offences involving cocaine. She said the statement “No, man. We don’t have any cocaine”,
[204] …constituted an informed waiver and relieved D/Cst. Underwood of his implementational obligations at that time. In the event that I am wrong, any breach was of little consequence since Mr. Lambert exercised his right to counsel later at the police station and no evidence was obtained from him in the intervening period.[14]
[22] Mr. Lambert seeks to bolster his position that he was not responding to an inquiry about whether he wanted to speak to a lawyer by noting he did not tell D/Cst. Underwood, “no, I don’t want to talk to a lawyer”. He provides no authority establishing that any response short of this requires the police to arrange for counsel to be contacted. Such an explicit, firm refusal is not required before police are relieved of their implementational obligation.
[23] At the police station, when Mr. Lambert was again advised of his s. 10(b) rights, this time by D/Cst. Steven Fairbairn, he provided the names of two lawyers he wanted to contact. Arrangements were made and Mr. Lambert spoke with counsel. His exercise of his right-to-counsel several hours after his arrest does not change the factual determination by the trial judge that he had chosen not to do so earlier in response to D/Cst. Underwood’s inquiry.
[24] In R. v. Sinclair the Supreme Court of Canada held the implementational obligations of the police only arise where a person detained or arrested “invokes the right and is reasonably diligent in exercising it…”.[15] Mr. Lambert did not invoke the right. Informed of his right to speak to a lawyer, Mr. Lambert chose not to exercise it.
[25] Sinclair uses the language of waiver as well as invocation when referring to a detainee’s options upon being informed of their s. 10(b) right. The legal principle remains the same, whichever term is used: unless a person who has been detained or arrested invokes their right to consult with a lawyer, no duty lies on the police to implement contact. This has been firmly established by the Supreme Court and provincial appellate jurisprudence.[16]
[26] The trial judge correctly stated the law when she said that a request for access to a lawyer triggers the implementational requirement. She then proceeded to make a factual determination that when Mr. Lambert said “No man. We don’t have any cocaine” he was not making any such request. This was a finding available to the trial judge on the evidence and is entitled to deference. She did not misapprehend Mr. Lambert’s response to D/Cst. Underwood. I would not give effect to this ground of appeal.
The Charter Breaches – Seriousness of the Breaches and the Cumulative Impact Assessment
[27] The appellants, and Mr. Seinauskas, alleged a number of Charter breaches arising out of their interactions with police in Halifax, and in relation to warrantless and judicially authorized searches, production orders and interceptions of private communications. They applied for exclusion of evidence under s. 24(2) of the Charter.
Standard of Review
[28] The standard of review in an appeal from a s. 24(2) determination is one of correctness in relation to the law and, in relation to the trial judge’s factual findings, of palpable and overriding error. The Supreme Court in R. v. Grant directed that appellate courts must show “considerable deference” to a trial judge’s ultimate s. 24(2) determination where they have considered the proper factors.[17]
[29] In the appellants’ submission the series of Charter breaches began earlier on June 9th, before their arrests, with the interaction between the police officers and Mr. Bailey and Mr. Seinauskas aboard the pontoon boat. The trial judge described the significance to the appellants of this initial encounter:
[5]…They argue that information obtained during that interaction was used to focus further investigation, led to the discovery of evidence, and resulted in a cascade of subsequent Charter violations. They also argue other Charter violations during the ensuing investigation that are not dependent on that initial information. If I find Charter breaches, they will argue that the individual and cumulative impact of these breaches justifies exclusion of evidence.[18]
[30] Suspicions about the activities of a pontoon boat in the vicinity of the Arica led to Cst. Sherri Campbell[19] and Sgt. Glode with the RCMP Federal Serious and Organized Crime unit (FSOC) in Halifax being tasked to conduct surveillance at the Halifax waterfront. They located the pontoon boat and obtained permission from Mr. Bailey and Mr. Seinauskas to board it for a conversation. As described by the trial judge, the discussion was fruitful:
[11]… They remained on the boat for about 20 minutes and learned, among other things, that Mr. Bailey and Mr. Seinauskas were with two other men who were diving at Black Rock Beach in Point Pleasant Park, they were driving a Black Cadillac Escalade with Quebec plates and were staying at the Future Inn in Bedford. Black Rock Beach is adjacent to the pier where the Arica was docked so Cpl. Campbell called to alert CBSA [Canada Border Services Agency] investigators on the Arica that there might be divers in the water at Black Rock Beach.[20]
[31] Armed with the information from the pontoon boat interaction, investigators were able to conduct surveillance of the four men and their activities at various locations, including Black Rock Beach. Mr. Bailey and Mr. Lambert were observed at the beach getting out of the Escalade and walking along the sea wall toward the Arica. Returning to the Escalade, Mr. Bailey got dressed in dive gear. Members of the surveillance team saw him enter the water at the beach and, using a propulsion device, start swimming in the direction of the Arica.
[32] Sgt. Glode and Cpl. Campbell could not see the beach from their location and were reliant on receiving information from other members of the surveillance team. A significant observation was made and passed along: Mr. Bailey had come out of the water at the beach with an item that was described to Sgt. Glode as a large heavy black cylinder. He and Mr. Lambert hefted the item and the diving gear up the beach and put it into the back of the Escalade. They left in the vehicle, driving away quickly.
[33] As noted by the trial judge, Sgt. Glode and Cpl. Campbell testified they believed contraband had been removed from the Arica and placed in the Escalade. This belief fueled Sgt. Glode’s decision to have the Escalade stopped and the occupants arrested. The location where Sgt. Glode and Cpl. Campbell had parked meant they did not see the vehicle when it left Black Rock Beach.
[34] I have already discussed Mr. Lambert’s arrest and do not need to repeat the trial judge’s description of it. Mr. Bailey was also arrested and the Escalade was searched:
[23] Sgt. Astephen arrested Mr. Bailey, advised him of his right to counsel and cautioned him. Sgt. Astephen made the decision to delay implementation of Mr. Bailey's right to counsel because of the ongoing investigation. He told Mr. Bailey he would not be able to speak to a lawyer now and told the transport officers to "put him on ice", meaning they would not be permitted to contact counsel, until they heard from the investigators. After advising Mr. Bailey of his rights, but before he had an opportunity to consult counsel, Sgt. Astephen asked Mr. Bailey a question, which he answered.
…
[25] The Escalade was searched incident to arrest and investigators discovered that the cylindrical item that had been removed from the water was a propulsion device and did not contain cocaine. A small quantity of what appeared to be personal use drugs was located in one of the bags in the Escalade. The Escalade was seized and eventually searched again pursuant to a warrant.
[26] Mr. Bailey and Mr. Lambert were transported to HRP Headquarters where, at approximately 7:40 p.m., they were each placed in a holding room to wait for investigators. Neither were given access to counsel during that time. Mr. Bailey had been wearing a wet dive suit when he was arrested. That was removed (at least the upper part) to facilitate handcuffing but the clothing he was wearing underneath was damp. He was provided with a blanket in the holding room but was not given dry clothes until sometime after approximately 9:30 p.m.[21]
[35] The trial judge found the appellants’ arrests were unlawful as was the search incidental to their arrest, and that of the Escalade. She noted that pulling over the Escalade, and the arrests and searches, all relied for their legality on Sgt. Glode’s grounds for arrest. The police officers who arrested and searched were acting in accordance with Sgt. Glode’s directions; he was not present at the arrest scene himself.
[36] Sgt. Glode testified the information from the surveillance officers at Black Rock Beach informed his belief that “something new”, which he believed was contraband, had been brought out of the water and loaded into the Escalade. While the trial judge accepted this was Sgt. Glode’s subjective belief, she found it was not an objectively reasonable belief in light of evidence to the contrary. She explained this conclusion:
[169] Neither Sgt. Glode nor Cpl. Campbell could see the beach from where they were located. They were relying on others to provide them with information. They were communicating using two different radios and cellular telephones with two HRP officers, two CBSA officers on the beach and more CBSA officers on the Arica. They were also receiving photographs that were sent to them by some of the surveillance officers. It is clear that at least some of the surveillance officers knew that Mr. Bailey entered the water with a propulsion device and this was communicated in some form to Sgt. Glode. I find that he knew that Mr. Bailey entered the water with such a device. However, he did not know what it looked like and there is no evidence that anyone described it to him.
[170] He then received information that something was being removed from the water and the divers were moving quickly to the Escalade. There is no evidence that any of the surveillance officers said that something new had come out. However, IO Foster reported seeing a heavy black tube. I believe that Sgt. Glode simply did not associate this with the propulsion device that he had earlier heard about and leapt to conclude there was something new. He believed contraband had been removed. However, the objectively discernable facts did not support that belief: a large cylindrical object was carried into the water; the diver had been seen using a propulsion device in the water; a large cylindrical device was removed from the water; it was a sunny afternoon at a public beach with people around; and, Mr. Bailey knew from his earlier encounter with Sgt. Glode at the pontoon boat that police were suspicious of his activity. I appreciate that Sgt. Glode did not hear anyone say that the propulsion device had been carried into the water and did not know what it looked like, but that information was readily available to him. Once the men were in the vehicle, things happened quickly. However, it took time for them to carry the gear to the vehicle and load it. He had time to consider whether the item being removed might be the propulsion device or ask the surveillance officers for more information. He had time to consider whether it was reasonable to believe that the targets would remove contraband from the water in broad daylight, in front of people, after being seen on camera by the ROV and after being confronted by himself and Cpl. Campbell earlier in the day. Instead he reacted immediately and directed that the vehicle be stopped and the occupants arrested.
[171] In the circumstances, I accept that he honestly believed he had grounds to believe contraband would be found in the vehicle and had grounds to stop the vehicle and arrest the occupants. However, his belief that contraband would be found was not reasonable, so his grounds were not objectively reasonable. As a result, the searches of Mr. Bailey and Mr. Lambert and the vehicle that were incident to that arrest were not authorized by law and so were not reasonable and breached s. 8 of the Charter.[22]
[37] While Mr. Bailey and Mr. Lambert were in custody at the police station, Sgt. Glode and Cpl. Campbell went to the Future Inn to try and locate the other two men. The access card folder seized from Mr. Lambert on arrest indicated room #329 although by the time the officers arrived staff had moved the occupants of #329 to room #327 due to a faulty lock. As the officers waited for uniform police and the Emergency Response Team (ERT) they learned that commercial divers had removed bags consistent with contraband from the Arica’s sea chest. This was later confirmed to be cocaine.
[38] When Sgt. Glode and Cpl. Campbell knocked on the door of room #327 and Mr. Seinauskas opened it, Sgt. Glode stepped inside the room and arrested him. The Crown conceded in the voir dire that Mr. Seinauskas’ arrest, conducted without a Feeney[23] warrant, breached s. 8 of the Charter. The trial judge also found that absent unconstitutionally obtained information—from the interaction of the police officers with Mr. Bailey and Mr. Seinauskas on the pontoon boat, and during the searches of Mr. Lambert, Mr. Bailey and the Escalade—Mr. Seinauskas’ arrest was unlawful and a violation of s. 9 of the Charter.
[39] The following day room #327 was searched pursuant to a warrant. Luggage and electronic devices were seized. As the trial judge noted, further searches and seizures were undertaken:
[35] During the days and weeks that followed, additional judicial authorizations were obtained. These included warrants to search the Escalade, electronic devices that had been seized from room #327 at the Future Inn and the Escalade, residences associated with the four men, production orders to obtain various records and authorizations to intercept communications.[24]
[40] The appellants challenged the validity of the Future Inn search warrant. They argued that once unconstitutionally obtained information was excised from the Information to Obtain (ITO), the remaining grounds were not sufficient to support the warrant’s issuance. After a careful analysis of the applicable law and the ITO, the trial judge concluded that significant information should be excised. She identified the parts of the ITO that were immediately derivative of Charter offending conduct and excised evidence that would not have been discovered but for the Charter breaches. She held that what remained “cannot meet the threshold for issuance of the Search Warrant”.[25]
[41] The trial judge identified another basis for the seizures of items from room #327, the power afforded police by the common law and s. 489(2) of the Criminal Code to seize items in “plain view”. She noted that the police officer exercising the seizure power must be lawfully present in the place and believe on reasonable grounds the items have been used in the commission of an offence or will afford evidence in respect of an offence. As found by the trial judge: “The incriminating nature or evidentiary value of the item must be immediately apparent”.[26]
[42] The trial judge explained how the “plain view” power was exercised in this case and her reasons for concluding it did not constitute a breach of the appellants’ rights under the Charter:
[241] Sgt. Mason testified that when she entered #327 with the warrant, she saw a folded invoice on the floor immediately inside the door. The invoice was in the name of Matthew Lambert. There was baggage on the floor and on the beds. A number of electronic devices (cell phones, chargers and a laptop in a case) were on the beds. Small personal items were in the bathroom. She seized everything.
[242] She testified that she seized the electronic devices because in her experience they are used to communicate which is of special significance in a conspiracy charge where communication between the conspirators is important. She testified that she believed that other information of evidentiary value could also be retrieved such as locations, tracking information, Wi-Fi usage. The evidentiary significance of the devices was obvious to her without "going through" the items.
…
[244] The Invoice in Mr. Lambert's name was in plain view and its evidentiary value is obvious. I am satisfied by the evidence of Sgt. Mason that the electronic devices also fell within the "plain view" doctrine. She was lawfully in the place in that she was present under a search warrant that was valid at the time. The electronic devices were immediately visible to her. Given her experience, she subjectively believed they would afford evidence of the offences under investigation. In all the circumstances, but especially in the context of a conspiracy charge, that belief was reasonable.
[43] Sgt. Mason testified at the voir dire she had been informed on June 7th about the suspicious activity observed around the Arica while berthed in Montreal. She received information that individuals in a Zodiac had shown significant interest in the ship which suggested to her a possible drug importation. Once the Arica had docked in Halifax Sgt. Mason was provided additional intelligence, including that anomalies had been discovered in the ship’s sea chest, where she knew from experience contraband could be concealed. She became convinced the information indicated a drug importation. She believed the cell phones and laptop she seized in room #327 on June 10th were devices that would contain evidence relating to a conspiracy to import drugs. (Contraband had been located and removed from the Arica’s sea chest on June 9th.) Sgt. Mason referred to the use of such devices by conspirators for communication and identified other types of evidence they could reveal.
[44] The trial judge found the seizure of the invoice and electronic devices was reasonable and did not constitute a breach of s. 8 of the Charter.[27]
A Summary of the Charter Breaches Found by the Trial Judge
[45] The trial judge summarized the Charter breaches she found in relation to each of the appellants [28]:
Darcy Bailey:
* ss. 7 & 10(a) & (b) resulting from detention at the pontoon boat
* ss. 9 & 8 resulting from unlawful arrest, detention and search incident to unlawful arrest at vehicle stop
* s. 8 resulting from seizure of vehicle and contents after Sgt. Glode knew he no longer had subjective grounds
* s. 10(b) resulting from delayed implementation of right to counsel
* s. 10(b) resulting from failure to hold off questioning at the roadside.
* s. 10(a) & (b) resulting from equivocal waiver and lack of understanding of right to counsel at police station.
* s. 8 resulting from insufficiency of grounds (after excision) to support search warrant for room #327 at Future Inn and seizure of items not specified in warrant
* s. 8 resulting from insufficiency of grounds (after excision) to support subsequent judicial authorizations
…
Matthew Lambert:
* ss. 9 & 8 resulting from unlawful arrest and search incident to unlawful arrest at vehicle stop
* ss. 9 & 8 resulting from continued detention and seizure of vehicle and contents after Sgt. Glode knew he no longer had subjective grounds
* s. 8 resulting from insufficiency of grounds to support search warrant for room #327 at Future Inn and seizure of items not specified in warrant
* s. 8 resulting from insufficiency of grounds (after excision) to support subsequent judicial authorizations.
[46] The trial judge also found ss. 7, 8, 9, and 10(a) and (b) Charter breaches in relation to the police interaction with Dangis Seinauskas.
The Trial Judge’s s. 24(2) Decision
[47] At the s. 24(2) stage of her reasons, the trial judge set out the legal framework for her analysis. She noted that s. 24(2) requires the exclusion of evidence (1) that was “obtained in a manner” that infringed the Charter, and (2) where the admission of the evidence “would bring the administration of justice into disrepute”. These criteria represent threshold and evaluative determinations.[29]
[48] The trial judge found that “much of the evidence can be linked directly to a Charter breach”. She gave an overview of what underpinned this conclusion:
[266] …I have concluded that the information from Mr. Bailey and Mr. Seinauskas during their initial interaction with police was unconstitutionally obtained. I also concluded that police were not entitled to rely on that information for grounds for the subsequent arrests of the Applicants or the search warrant for the hotel room. As a result, I found Charter breaches at each stage of the subsequent investigation. Some were "stand alone" breaches in that they involved new Charter-infringing conduct and others were "consequential" or "secondary" breaches in that they were the result of earlier Charter-infringing conduct. Because of these findings, in this case, much of the evidence can be linked directly to a Charter breach. Where it cannot, the relationship between the breach and the evidence has to be carefully reviewed to determine whether the evidence derives from the breach.[30]
[49] The trial judge considered the applicable case law and mapped out her approach to the threshold and evaluative determinations:
[272] …the proper approach is for me to assess each piece of evidence or category of evidence for which a specific Applicant seeks exclusion and determine whether there is a "causal, temporal, or contextual, or any combination of these connections" (Pino)[31] to a Charter breach in relation to that Applicant. If so, as long as the connection is not too tenuous or remote, the threshold "obtained in a manner" requirement is met and I must move on to the evaluative stage and apply the factors identified in R v. Grant, supra, to determine admissibility of the evidence in question.[32]
[50] In her introduction to the evaluative stage, the trial judge recited the principles that undergird the Grant analysis, noting the applicants seeking exclusion of evidence pursuant to s. 24(2) bore the burden of establishing, on a balance of probabilities, that the admission of evidence would bring the administration of justice into disrepute. She identified the general principles that inform a s. 24(2) analysis and the three factors a court must consider in determining whether the admission of the evidence would bring the administration of justice into disrepute: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits.[33]
[51] Referencing the jurisprudential guidance for applying these factors, the trial judge noted the Supreme Court of Canada’s instruction for balancing them “to arrive at the answer to the ultimate question suggested in Grant and R. v. Harrison[34]: what is the broad impact of the admission of the evidence on the long-term repute of the justice system?” She quoted from Harrison:
The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.[35]
[52] The trial judge’s treatment of the cumulative effect of multiple Charter breaches in this case is of central concern to the appellants. The judge indicated her understanding of the significance of a cumulative impact:
[282] When assessing admissibility under s. 24(2), the triggering breach must be assessed in the context of the entire investigation and the conduct of the police throughout the investigation is relevant to the inquiry (cites omitted). Breaches that might not warrant exclusion when considered individually, could bring the administration of justice into disrepute if part of a serious pattern of disregard of Charter rights.
[283] When assessing whether there is a "pattern of disregard", the cumulative impact of all Charter breaches can be considered, including breaches of rights of other applicants and breaches that did not directly result in the discovery of evidence (cites omitted).
[284] In assessing whether there is such a pattern and, if so, how serious it is, I should consider the breaches in the context of the entire investigation, including, its duration, the number of breaches, their individual seriousness, whether they involve new Charter infringing conduct ("stand-alone breaches") or flow from previous breaches ("secondary" or "consequential" breaches), and, situations where police showed a respect for Charter interests.[36]
[53] I will discuss the cumulative impact issue later in these reasons.
[54] The trial judge’s approach to applying the legal principles to the facts in her s. 24(2) analysis was to “assess each piece or category of evidence with its associated breach(s) individually in chronological order and then consider the cumulative effect of the breaches and determine the impact on the individual admissibility determinations”.[37]
[55] The trial judge noted the evidence that was the subject of the exclusion applications:
• All observations made[38] and evidence discovered as a result of the unconstitutionally obtained statements from Mr. Bailey and Mr. Seinsauskas on the pontoon boat.
• The evidence resulting from the searches incidental to the arrests of Mr. Bailey and Mr. Lambert: the identification of Mr. Lambert; statements made by Mr. Lambert and Mr. Bailey; all items seized incident to arrest, including the Escalade and its contents; all information seized from electronic devices found as a result of the search incident to arrest; and all information provided by staff/management of the Future Inn.[39]
• Statements made by Mr. Bailey at the roadside and at the police station.
• Statement from Mr. Lambert to police.
• Evidence obtained pursuant to a search warrant for room #327 at the Future Inn.
[56] Applying the Grant analysis, the trial judge determined what evidence was admissible. In following the approach she had set out, she made a number of factual findings in the evaluative stage. She first of all addressed the observations and collection of evidence in the time between the police encounter with Mr. Bailey and Mr. Seinauskas on the pontoon boat and the arrest of Mr. Bailey and Mr. Lambert.
Detained on the Pontoon Boat
[57] After a comprehensive review of the law and evidence, the trial judge concluded that Cpl. Campbell and Sgt. Glode’s interaction with Mr. Bailey and Mr. Seinauskas on the pontoon boat constituted a detention. She held:
[111]…I am satisfied that Mr. Bailey and Mr. Seinauskas were detained for Charter purposes and should have been advised of their right to counsel under s. 10(b) of the Charter. That detention would have crystalized at the earliest when they were asked for proof of identification and at the latest when the officers directed Mr. Bailey to allow Mr. Seinauskas to answer for himself and began asking more probing questions.[40]
[58] She then undertook an evaluative analysis according to the three Grant factors:
Factor 1 – Seriousness of the Breach
• The s. 10 breach by Sgt. Glode and Cpl. Campbell on the ponton boat was the result of a failure by the officers to recognize the impact their conduct might have on a reasonable person. It was not deliberate disregard for Mr. Bailey’s and Mr. Seinsauskas’ Charter rights. They made a mistake (failing to recognize they had detained Mr. Bailey and Mr. Seinauskas) that “was not negligent and does not demonstrate unacceptable ignorance of Charter norms”.[41]
• The gravity of the police conduct fell in the “low to medium range” on the spectrum of the seriousness of the breach.[42]
• The police officers did not fail to give Mr. Bailey and Mr. Seinauskas their s. 10 rights knowing they were detaining them, which the trial judge would have viewed as “very serious”.[43]
Factor 2 - Impact on the Charter-protected Interests of the Accused
• Observations made by Sgt. Glode and Cpl. Campbell and other investigators between 2 p.m. and 7 p.m. on June 9th were not discoverable but for the information obtained on the pontoon boat. The trial judge found: “…discoverability does not lessen the impact of the infringement and this factor favours exclusion”.[44]
Factor 3 – Society’s Interest in Adjudication of the Case on its Merits
• The reliability of the derivative evidence, which was either real evidence with inherent reliability or observations by witnesses which could be tested at trial.
• The police did not deliberately breach Charter rights in order to find derivative evidence. The trial judge found this factor favoured admission.
[59] Under the heading “Balancing and Weighing”, the trial judge excluded Mr. Seinauskas’ pontoon boat statement to police[45] and admitted Mr. Bailey’s:
[314] With respect to Mr. Bailey's statement. I found that the police conduct did not demonstrate a willful or negligent disregard for Charter rights. Nor did it, in the circumstances, demonstrate unacceptable ignorance of the law. The second factor, the impact of the breach on Mr. Bailey's Charter protected right, favours exclusion. The third factor, society's interest, favours admission. The statement is important to the prosecution and the public interest in prosecution of these offences is high.[46]
[60] The trial judge stated that, having considered the Grant factors relating to Mr. Bailey’s statement and the additional factors relating to derivative evidence, she would admit the evidence obtained as a result of Charter breaches aboard the pontoon boat. She emphasized that her admission of the evidence would be “subject to the cumulative impact of breaches”.[47]
[61] The appellants take issue with how the trial judge assessed the failure by Cpl. Campbell and Sgt. Glode to appreciate they had created the conditions of a detention of Mr. Bailey and Mr. Seinauskas aboard the pontoon boat. The trial judge found the officers’ mistake “was made in a context where there is no clear definition of psychological detention and the law is evolving”.[48] In the appellants’ submission, the trial judge made an unreasonable factual finding that is not consistent with Grant.
[62] I reject the appellants’ criticism. The trial judge correctly stated the law. Grant explicitly acknowledged that “…the point at which an encounter becomes a detention is not always clear, and is something with which courts have struggled”.[49] Furthermore, Grant emphasized the deference to be shown to a trial judge’s determination:
[43] Whether the individual has been deprived of the right to choose simply to walk away will depend, to reiterate, on all the circumstances of the case. It will be for the trial judge to determine on all the evidence. Deference is owed to the trial judge's findings of fact, although application of the law to the facts is a question of law.
[63] Determining whether a detention has occurred requires a contextual inquiry that takes account of the totality of the circumstances.[50] This was comprehensively undertaken by the trial judge. She was entitled to draw the conclusion that the police officers’ conduct was neither negligent nor unmindful of Charter norms and assess its seriousness on that basis.
The Arrests of Mr. Lambert and Mr. Bailey
[64] The trial judge next examined the evidence resulting from the search conducted incident to the arrest of Mr. Bailey and Mr. Lambert. She found:
Factor 1 – Seriousness of the Breach
• The use of unconstitutionally obtained and derivative evidence for grounds of arrest did not engage “any new Charter-infringing state conduct”.[51]
• Sgt. Glode’s belief that something new came out of the water with Mr. Bailey was not objectively reasonable “in light of evidence to the contrary”.[52]
• Sgt. Glode reacted immediately, directing the Escalade to be stopped and the occupants arrested, when he should have paused to consider the matter or asked the surveillance officers for more information.
• Sgt. Glode honestly believed he had grounds to arrest.
• He did not act with bad faith, and did not “deliberately, flagrantly or negligently” breach the Charter during “the initial part of the arrest”.[53]
• After Sgt. Glode learned he had wrongly concluded the object brought out of the water was contraband, he could “no longer be said to have been acting with good faith. He knew he no longer had grounds for the arrest or seizure and nonetheless, forged ahead”.[54]
• The continued detention of Mr. Bailey and Mr. Lambert, the Escalade and its contents was a serious breach of the Charter.
Factor 2 - Impact on the Charter-protected Interests of the Accused
• The arrest and continued detention had a considerable impact on Mr. Lambert and Mr. Bailey. “They were both taken to HRP [Halifax Regional Police] headquarters where they were held, Mr. Bailey while cold and wet, for hours before new evidence was obtained that might have provided reasonable grounds to continue to detain them”.[55]
Factor 3 – Society’s Interest in Adjudication on the Merits
• The evidence viewed and then seized from Mr. Lambert and the Escalade and the Escalade itself was all real evidence. This weighed in favour of admission of the evidence.
[65] At the balancing and weighing stage, the trial judge held that the seriousness of the breach “marginally favours admission”. The impact of the breach “marginally favours exclusion”. Society’s interest in adjudication favoured admission. She concluded, “that prior to consideration of the cumulative impact of multiple breaches”, the admission of the observations made during the initial search of Mr. Bailey, Mr. Lambert and the vehicle would not, on balance, have a negative effect on the long-term repute of the administration of justice.[56] She took a different view of the seizure of items:
[328] I reach a different conclusion with respect to the seized items, including the Escalade and its contents (subject to further argument concerning subsequent search warrants). For this category of evidence, I conclude that the seriousness of the police conduct strongly favours exclusion and to admit the evidence in these circumstances would, on balance, have a negative impact on the long-term repute of the administration of justice despite the fact that police subsequently obtained judicial authorization to search the vehicle and devices. As such the application to exclude this evidence pursuant to s. 24(2) of the Charter is granted for Mr. Bailey and Mr. Lambert, subject to argument concerning the impact of subsequent search warrants.[57]
Good Faith/Bad Faith
[66] I will pause here to discuss a concern raised by the appellants: they argue the trial judge’s findings that Sgt. Glode had not acted with bad faith during the initial part of the Lambert/Bailey arrests but subsequently was “no longer acting in good faith” were inconsistent and flawed. To address this issue I will first review the trial judge’s discussion of the legal principles that govern the evaluative stage of the Grant analysis and her references to good faith and bad faith.
[67] As acknowledged by the trial judge, the central consideration is where police misconduct should be located on a spectrum of fault. She noted that a finding of good faith could be relevant to this assessment:
[278] …The Court recognized a spectrum of misconduct including inadvertent or minor violations at one end and willful or reckless disregard on the other. The more deliberate or serious the conduct, the greater the risk that the public's confidence would be undermined and the greater need for the Court to dissociate itself from that conduct. The Court also noted that extenuating circumstances or good faith could attenuate the seriousness of the misconduct or reduce the need for the Court to dissociate itself (Grant, supra., paras. 74 and 75).[58]
[68] The trial judge recognized that good faith is also a consideration where the admissibility of derivative evidence is in issue. She referenced paragraphs 126 and 127 from Grant which I reproduce in their entirety:
[126] The third inquiry in determining whether admission of the derivative evidence would bring the administration into disrepute relates to society's interest in having the case adjudicated on its merits. Since evidence in this category is real or physical, there is usually less concern as to the reliability of the evidence. Thus, the public interest in having a trial adjudicated on its merits will usually favour admission of the derivative evidence.
[127] The weighing process and balancing of these concerns is one for the trial judge in each case. Provided the judge has considered the correct factors, considerable deference should be accorded to his or her decision. As a general rule, however, it can be ventured that where reliable evidence is discovered as a result of a good faith infringement that did not greatly undermine the accused's protected interests, the trial judge may conclude that it should be admitted under s. 24(2). On the other hand, deliberate and egregious police conduct that severely impacted the accused's protected interests may result in exclusion, notwithstanding that the evidence may be reliable.
[69] The trial judge concluded her discussion of derivative evidence by observing that the application of the first Grant factor—the seriousness of the state conduct—will take good faith into account:
[288] A finding that evidence was discoverable does not necessarily lead to its admission but is a relevant factor under the first two Grant factors (Côté, supra., at paras. 70 - 74).[59] Under the first, the seriousness of the police conduct, if police could have obtained the evidence constitutionally, their reasons for not doing so will be relevant. A "casual attitude" or "deliberate flouting" of Charter rights will aggravate the seriousness of the conduct, whereas good faith or a legitimate reason will probably lessen its seriousness. Under the second factor, the impact on the accused is greater if the state action could not have occurred legally and may be lessened if it could have.[60]
[70] The good faith/bad faith paradigm is underpinned by certain legal principles. In the s. 24(2) analysis they are “terms of art which connote mental states at the opposite poles of a spectrum”.[61] Bad faith equates with “flagrant disregard”. Its absence “does not equate to good faith, nor does the absence of good faith equate to bad faith”.[62]
[71] The trial judge described Sgt. Glode as not acting in bad faith at the time of the initial arrests. She accepted he honestly believed he had grounds for the arrests. She was satisfied that, “in the circumstances” Sgt. Glode did not “deliberately, flagrantly or negligently” breach the appellants’ Charter rights “during the initial part of the arrest”.[63]
[72] The trial judge had earlier concluded that Sgt. Glode did not have objectively reasonable grounds to arrest which made the arrests unlawful. She found Sgt. Glode was not entitled to rely on unconstitutionally obtained information from the statements made on the pontoon boat, or in the alternative, “his subjective belief that contraband had come out of the water and been put in the Escalade was not objectively reasonable”.[64] A few paragraphs later she said that once Sgt. Glode learned he was mistaken and it was a propulsion device that had been loaded into the Escalade, he could “no longer be said to have been acting in good faith”.[65] In her evaluative analysis of the evidence seized under warrant from Room #327, the trial judge again referred to the appellants’ arrests and said she had concluded that Sgt. Glode’s “initial arrest and search incident to arrest at the vehicle stop was conducted in good faith and with an honest belief that he had grounds to arrest”.[66]
[73] The trial judge’s statements about Sgt. Glode acting in good faith were legally incorrect. Her finding that Sgt. Glode did not have objectively reasonable grounds for arrest meant it could never be said he had acted in good faith. Good faith requires more than an honestly-held subjective belief: the subjective belief has to be objectively reasonable.[67] The trial judge had found Sgt. Glode’s subjective belief was not objectively reasonable. She said:
[322] …He should have paused to consider whether the item being removed might be the propulsion device or asked the surveillance officers for more information. He should have considered whether it was reasonable to believe that the targets would remove contraband from the water in broad daylight, in front of people, after being seen on camera by the ROV and after being confronted by himself and Cpl. Campbell earlier in the day. Instead he reacted immediately, directed that the vehicle be stopped, and the occupants arrested…[68]
[74] However, the trial judge’s incorrect description of Sgt. Glode acting in good faith does not constitute reversible error. She was entitled to find Sgt. Glode had not acted in bad faith at the time of the initial arrest, in other words, had not acted with “flagrant disregard” for the appellants’ Charter-protected interests. She made findings of fact about the circumstances in which Sgt. Glode was operating: he was reliant on communications from multiple investigators; he honestly believed contraband had been brought out of the water. He was mistaken. As the respondent has noted, the circumstances of arrest may require a decision being “made quickly in volatile and rapidly changing situations…based on available information which is often less than exact or complete”.[69]
[75] Trial judges’ reasons are not to be held to “some abstract standard of perfection”.[70] In the context of the trial judge’s s. 24(2) analysis, what ultimately matters is “not the legal label attached to the police conduct”–good faith/bad faith—but her placement of the conduct on the spectrum of fault.[71] In assessing the seriousness of Sgt. Glode’s flawed decision to stop the Escalade and arrest the occupants, the trial judge concluded he had not acted with flagrant disregard for the appellants’ Charter rights. His continued detention of the appellants and the Escalade after he discovered there was no contraband in the vehicle shifted his conduct along the spectrum of fault. The trial judge found the continued detention of the appellants and the Escalade and its contents was a serious breach. These conclusions are to be accorded deference.
[76] I find the appellants’ good faith/bad faith arguments do not ground a basis for interfering with the trial judge’s s. 24(2) determinations.
Mr. Bailey’s Statements to Police
[77] I will move on to address the trial judge’s treatment of the statements made by Mr. Bailey at the roadside and at the police station. She excluded the statements pursuant to s. 24(2) on the basis of the following:
• Mr. Bailey’s s. 10(b) rights were breached at the roadside when the implementation of his right to counsel was put “on ice” and the police failed to hold off questioning.
• His s. 10(a) and (b) rights were breached at the police station “as a result of his equivocal waiver and lack of understanding of his right to counsel”.[72]
[78] At the evaluation stage of her Grant analysis in relation to Mr. Bailey’s statements, the trial judge found:
Factor 1 – Seriousness of the Breach
• Having suspended Mr. Bailey’s right to counsel, Sgt. Astephen should not have asked him a question. Doing so was, at best, negligent.[73] (According to the evidence, Sgt. Astephen asked Mr. Bailey what he was doing in a diving suit. Mr. Bailey responded by saying they had to get to the airport, they were late.)
• Sgt. Astephen did not advise investigators he had suspended implementation of Mr. Bailey’s right to counsel, consequently “no steps were taken to minimize the delay in implementation of rights. As such, the continuing delay…was not reasonable and was a serious breach”.[74]
• Mr. Bailey did not provide an unequivocal waiver of his right to counsel at the police station and the experienced investigators should have known that. Neither investigator did anything to clarify the situation.
• Sgt. Glode proceeded to question Mr. Bailey notwithstanding him stating he did not understand the secondary caution and “Prosper” [75] warning he had been given.
• Sgt. Glode was obligated to ensure Mr. Bailey understood his rights and was clearly waiving them.
• Sgt. Glode’s failure to comply with his obligations “was not inadvertent or minor. It demonstrated a negligent or reckless disregard for Charter rights”.[76]
• The seriousness of the misconduct was high and supported exclusion of the evidence.
Factor 2 - Impact on the Charter-protected Interests of the Accused
• The impact on Mr. Bailey was significant. He was not told how long his rights would be suspended. He was held for hours in a wet diving suit “without knowing when he might talk to someone”.
• The facts strongly supported exclusion of Mr. Bailey’s statement.
Factor 3 – Society’s Interest in Adjudication on the Merits
• The Crown’s case would be weakened but not torpedoed by the exclusion of Mr. Bailey’s statements. The societal interest in adjudication on the merits was high due to the seriousness of the charges. This marginally supported admission of the evidence.
[79] The trial judge concluded at the balancing and weighing stage that the admission of Mr. Bailey’s statements to police would, “on balance, have a negative impact on the long-term repute of the administration of justice”.[77] She excluded the statements pursuant to s. 24(2).
Mr. Lambert’s Statement to Police
[80] The alleged breach the trial judge next turned her attention to was Mr. Lambert’s statement to police at the police station. In her Grant analysis she found:
Factor 1 – Seriousness of the Breach
• The unlawful detention of Mr. Lambert was a serious infringement of his rights.
• The unlawfulness of the detention came to an end when drugs were recovered from the Arica.
• The seriousness of the breaches—the unlawful arrest and continuing detention—was mitigated by Mr. Lambert exercising his right to consult counsel (which he did at the police station) prior to providing a statement.
Factor 2 - Impact on the Charter-protected Interests of the Accused
• The period of unlawful detention was “relatively brief” and therefore had little impact on Mr. Lambert’s Charter-protected interests.[78]
Factor 3 – Society’s Interest in Adjudication on the Merits
• It was unclear what impact the exclusion of Mr. Lambert’s statement would have on the Crown’s case.
[81] In balancing and weighing all the circumstances, the trial judge concluded the admission of Mr. Lambert’s statement would not have a negative impact on the repute of the administration of justice. Consequently, she did not exclude it.[79]
The Search Warrant for Room #327 at the Future Inn
[82] In her Grant analysis of the evidence obtained pursuant to the search warrant for room #327 at the Future Inn, the trial judge concluded the warrant could not survive the excision of unconstitutionally obtained information. After applying the three Grant factors, she admitted evidence that had been seized from the room.
[83] The appellants argue the trial judge should have excluded the evidence obtained in the search under warrant of Room #327 and the searches pursuant to the subsequent judicial authorizations. (I address the trial judge’s admission of evidence from those judicial authorizations separately.) They say when assessing the seriousness of the Charter-infringing state conduct, she misinterpreted the Ontario Court of Appeal’s decision in R. v. Rocha[80] and its emphasis on the significance of obtaining judicial authorization to search. In their submission this led the trial judge to place undue weight on Charter-compliant police conduct – the fact that police obtained a warrant to search Room #327. In addition they say the trial judge failed to meaningfully examine the ITO for what they claim to be false or misleading information.
[84] I do not accept the appellants’ arguments. The trial judge did not misinterpret Rocha. She correctly applied its principles to the facts of this case.
Factor 1 – Seriousness of the Breach and R. v. Rocha
[85] The judge in Rocha, applying the first Grant factor, assessed police conduct in the warranted search of a restaurant as deliberate, and therefore serious, because it has been “planned in advance and obtained through the warrant authorization process”.[81] Justice Rosenberg of the Ontario Court of Appeal held this was not the correct approach. In his words, “Applying for and obtaining a search warrant from an independent judicial officer is the antithesis of wilful disregard of Charter rights”.[82] He found it was incorrect for the judge in that case to have held,
…in favour of exclusion because obtaining a search warrant is a deliberate process. The approach rather should be to look at the ITO and consider first if it is misleading in any way. If so, the court should then consider where it lies on continuum from the intentional use of false and misleading information at one end to mere inadvertence at the other end.[83]
[86] Judge Buckle, in complete agreement with Justice Rosenberg’s analysis, adopted his reasoning. She applied the principles identified by Justice Rosenberg: “Unless the applicant for exclusion of evidence can show that the warrant was obtained through use of false or deliberately misleading information, or the drafting of the ITO in some way subverted the warrant process, the obtaining of the warrant generally…tells in favour of admitting the evidence”.[84] Following Rocha, she undertook an examination of the ITO to determine if it contained misleading information. She noted Justice Rosenberg’s statement that obtaining a search warrant does not automatically favour admission of the evidence under the first criterion in Grant.
[87] The trial judge proceeded with her analysis of the ITO for the Future Inn warrant and found the following:
• There was no indication the ITO contained false or misleading information.
• Sgt. Glode did not know when he included the pontoon boat evidence in the ITO that it had been obtained unconstitutionally.
• His failure to identify the Charter breach was neither negligent nor a demonstration of unacceptable ignorance of Charter norms.
• The initial arrest and search incident to arrest when the Escalade was pulled over was conducted in good faith. He honestly believed he had grounds to arrest.
• The inclusion of the information obtained as a result was “not intentionally improper”.[85]
• Only a small portion of the information in the ITO was obtained as a result of Charter-infringing conduct that should have been clear to police. As a consequence, the seriousness of the Charter-infringing conduct was at “the low end of the spectrum of misconduct”.[86] This weighed in favour of admitting the evidence.
Factor 2 - Impact on the Charter-protected Interests of the Accused
• The intrusiveness of the hotel room search on the privacy interests of the appellants was very significant. This supported the evidence being excluded.
Factor 3 – Society’s Interest in Adjudication on the Merits
• The evidence seized from the hotel room was “central” to the Crown’s case and the charges were very serious. The societal interest in having the case adjudicated on its merits was high and “the truth-seeking function of the criminal trial process is best served through admission of the evidence”.[87] This supported admission of the evidence.
[88] In balancing and weighing the Grant evaluative factors the trial judge concluded the admission of the evidence would not have a negative impact on the long-term repute of the administration of justice. She declined to exclude the evidence obtained from the hotel room. She once again demonstrated fidelity to the requirement for ultimately assessing the cumulative impact:
[356] Having regard to all the circumstances, I conclude, subject to consideration of the cumulative impact of all the breaches, that admission of the evidence in these circumstances would not, on balance, have a negative impact on the long-term repute of the administration of justice. As such the application to exclude evidence pursuant to s. 24(2) of the Charter is dismissed.[88]
Subsequent Judicial Authorizations
[89] The trial judge applied her final Grant analysis to the evidence obtained from subsequent judicial authorizations. She held that her comments in relation to the search warrant for room #327 applied equally to most of these authorizations:
[357] …With respect to the first factor, they all fail because of excision of unconstitutionally obtained information without new Charter infringing conduct. They all benefit from the fact that judicial authorization was sought. With respect to the second factor, I recognize that they involve different levels of intrusion on privacy interests. Many were highly intrusive, involving searches of residences, interception of private communications and search of electronic devices. With respect to the third factor, most involve seizure of material that would be very important to the Crown's case.[89]
[90] As with the evidence seized from the hotel room, the trial judge did not exclude the evidence obtained pursuant to the subsequent judicial authorizations, with the exception of the evidence police obtained from the Escalade. The trial judge excluded all the Escalade evidence “not immediately observable at the roadside”, including the evidence garnered from seized cell phones and the vehicle’s navigation system. She concluded:
[360] I have concluded that the seriousness of the Charter infringing conduct that resulted in the police having the vehicle and its contents in their possession was very serious and cannot be condoned by the Court. The fact that the police subsequently obtained search warrants does not compensate for that. The search of the cell phones, which were "smart phones", was a significant privacy intrusion (R. v. Fearon, 2014 SCC 77, at para. 96). The evidence seized would be considered reliable evidence and is important to the Crown's case. Having regard to all the circumstances, I conclude that admission of the evidence in these circumstances would, on balance, have a negative impact on the long-term repute of the administration of justice. As such the application to exclude evidence pursuant to s. 24(2) of the Charter is granted.[90]
[91] I find the trial judge made none of the errors the appellants allege in relation to the search of Room #327 at the Future Inn. As I noted, she explicitly acknowledged that obtaining a search warrant does not automatically favour admission of the evidence under the first Grant factor. The analysis she conducted, the findings from which I listed above, was entirely faithful to the law and correct.
The Cumulative Impact Issue
[92] The appellants place a very significant emphasis on what they claim was a failure by the trial judge to take into account the cumulative impact of the multiple Charter breaches. They liken this case to R. v. Adler[91] where the failure to undertake a cumulative-impact assessment led to a fresh s. 24(2) analysis, the exclusion of evidence and the entering of acquittals.
[93] The appellants say the evidence before the trial judge established a pattern of abuse by the police of their constitutional rights. They frame the trial judge’s conclusion that there was no such pattern as an error of law. They note she identified having to assess cumulative impact but argue she failed to meaningfully engage in the analysis. Specifically, they claim she did not consider the cumulative impact of the multiple Charter breaches on their Charter-protected interests (the second Grant factor) only addressing it in connection with the first Grant factor, the seriousness of the police conduct. The appellants characterize the trial judge’s treatment of the cumulative impact requirement as inconsistent with this Court’s decision in R. v. White,[92] wherein it was determined the trial judge had not properly conducted the Grant analysis.
[94] I am not persuaded by the appellants’ arguments. The trial judge was very much alive to the cumulative impact issue and factored it into her analysis correctly. Her approach can be readily differentiated from that in Adler where the judge was found to have “acknowledged the need to consider the cumulative effect of the various Charter breaches, but he did not do so”.[93]
[95] In Adler, the judge’s s. 24(2) approach was found to be in error. He determined there had been Charter breaches. He indicated he would have excluded pursuant to s. 24(2) some of the evidence obtained as a result of these breaches, but given the evidence was also relevant to other charges, he chose not to exclude any of it. Instead, he imposed a stay on certain charges and proceeded with a trial on the more serious ones. Based entirely on evidence he had admitted notwithstanding the Charter breaches, the judge convicted Mr. Adler. The Ontario Court of Appeal held the judge had:
[39] …artificially separated the breaches into two groups and then assigned most of them to the less serious offences. He then stayed those offences but allowed the more serious offences to proceed. The trial judge’s failure to properly consider the cumulative effect of the various Charter breaches, is, itself, an error in principle…
[96] Here, there is no viable comparison with Adler. Both as she worked through her s. 24(2) analysis and at its conclusion, the trial judge identified as significant the cumulative impact of multiple Charter breaches. Before undertaking her Grant analysis to determine the admissibility of evidence the Crown was seeking to rely on, the trial judge noted: “Breaches that might not warrant exclusion when considered individually, could bring the administration of justice into disrepute if part of a serious pattern of disregard of Charter rights”.[94] The trial judge’s reasons indicate her keen understanding of the cumulative impact requirement and its application to the first two Grant factors:
[283] When assessing whether there is a "pattern of disregard", the cumulative impact of all Charter breaches can be considered, including breaches of rights of other applicants and breaches that did not directly result in the discovery of evidence (Fan, supra., at paras. 72-73; Lauriente, supra., at para. 27; Robertson, supra.; Spence, supra., at para. 51; and Boutros, supra., at para. 26).[95]
[284] In assessing whether there is such a pattern and, if so, how serious it is, I should consider the breaches in the context of the entire investigation, including, its duration, the number of breaches, their individual seriousness, whether they involve new Charter infringing conduct ("stand-alone breaches") or flow from previous breaches ("secondary" or "consequential" breaches), and, situations where police showed a respect for Charter interests.[96]
[97] At the conclusion of each Grant analysis where the trial judge determined she would admit the evidence, she consistently indicated she was doing so subject to a consideration of the cumulative impact of the breaches. She addressed the cumulative impact issue at the end of her decision, noting she had to assess whether the breaches were a pattern of abuse or disregard for Charter rights. She observed that while case authorities identified a pattern of Charter-infringing conduct as tending to support exclusion of the evidence, each case turns on its own facts.[97]
[98] The trial judge explained her analysis of the cumulative impact of the multiple Charter breaches she had found:
[362] The initial investigative activity I examined occurred over a period of just over 24 hours. During that time, I found multiple Charter breaches against each of the three Applicants. They involve different rights and were committed by different officers. Some were serious and some were not. Some resulted in the seizure of evidence and some did not have any direct result. Some were "secondary" or "consequential" breaches that were found to be breaches because they incorporated earlier unconstitutionally obtained evidence as opposed to new Charter-infringing conduct.
[363] The investigative activity that came after that first 24-hour period and resulted in the Judicial Authorizations did not involve any new Charter infringing conduct.
[364] In my view, it is important to differentiate between the two types of breaches at this stage so as not to rely on the same Charter-infringing conduct more than once in deciding whether there is a pattern of abuse. The "stand alone" breaches include:
* ss. 7, 10(a) & 10(b) breaches relating to Mr. Bailey and Mr. Seinauskas at the pontoon boat;
* s. 9 and related s. 8 breach relating to the arrest of Mr. Bailey and Mr. Lambert resulting from insufficient grounds to arrest;
* s. 9 & s. 8 breaches resulting from the continued detention of Mr. Bailey and Mr. Lambert and the seizure of the vehicle and contents after Sgt. Glode knew he no longer had subjective grounds;
* s. 10(b) resulting from delayed implementation of right to counsel for Mr. Bailey;
* s. 10(b) resulting from failure to hold off questioning at the roadside for Mr. Bailey;
* s. 10(a) & (b) resulting from equivocal waiver and lack of understanding of right to counsel at police station for Mr. Bailey;
* ss. 8 & s. 10(a) & (b) resulting from police entry into hotel room to arrest Mr. Seinauskas without Feeney warrant and failure to immediately advise of right to counsel.
[365] As was the case in Lauriente, supra,[98] here there were multiple breaches, "each step built on the one before, ultimately culminating in the obtaining and execution of the search warrant". As a result, I have to consider the impact of all the breaches to place the seriousness of the individual breaches in context, and, decide whether there is a pattern of disregard for Charter rights that could bring the administration of justice into disrepute.
[366] The quantity of breaches here is concerning and, as I have said, some are serious. However, overall, I would not describe the pattern as one of "serious disregard" or "abuse". As I have noted, some of the Charter-infringing conduct is serious and there is a need for the Court to distance itself from that conduct. However, that can and has been addressed through the exclusion of specific pieces of evidence. Therefore, consideration of the cumulative impact of all the breaches does not change my previous assessment of the seriousness of the individual breaches and I do not find that the pattern requires the Court to dissociate itself from the overall conduct or that it would bring the administration of justice into disrepute.[99]
[99] The appellants’ argue the trial judge’s error lies in her statement that her “previous assessment of the seriousness of the individual breaches” remained unaltered by her consideration “of the cumulative impact of all the breaches”. As noted, they say the trial judge applied her cumulative-impact analysis only to the first Grant factor –the seriousness of the Charter-infringing state conduct—overlooking the second Grant factor which concerns the impact of the breaches on their Charter-protected interests. I do not agree.
[100] There was no failure by the trial judge to consider the cumulative impact of the Charter breaches on the appellants’ Charter-protected interests. Her reference to the “seriousness of the individual breaches” clearly indicates she was focusing on both the first and second Grant factors. Seriousness is assessed in the context of the Charter-infringing conduct and the impact on the Charter-protected interests. As stated by the Supreme Court of Canada in R. v. Le, the second Grant factor, “Like the first inquiry under Grant…entails answering a question of degree of seriousness…”[100]
[101] As these reasons disclose, the trial judge subjected each breach to a comprehensive analysis according to the Grant factors. She was not required to replicate that analysis when considering the cumulative impact. It was unnecessary for her to conduct an extensive re-examination. It was appropriate for her to have examined the breaches individually and then re-assess them in a summary fashion to assess whether, if viewed cumulatively, her analysis changed.[101] She expressly considered whether the cumulative impact of the breaches required additional evidence to be excluded. This was a distinct step in the trial judge’s analysis that she took separate and apart from her analysis of the individual breaches. She made explicit reference to the “seriousness of the individual breaches”, that is the breaches of the appellants’ Charter-protected interests, and that there was no requirement for “the court to disassociate itself from the overall conduct or that it would bring the administration of justice into disrepute”.[102]
[102] Nothing the trial judge did conflicts with this Court’s direction in White that “the cumulative effect analysis should be grounded in a consideration of each of the first two Grant factors”.[103] However, the statement in White that the cumulative impact analysis “is not a later superadded analysis that alters the assessment of the seriousness of the breaches or their impact”[104] should not be read as indicating that assessing the cumulative effect of multiple Charter breaches cannot lead a trial judge, in a particular case, to conclude that cumulatively, the Charter breaches tip the scales in favour of the exclusion of evidence. That is the point of the cumulative-impact analysis trial judges are obligated to conduct under s. 24(2): it is a final look to see if, in all the circumstances, some or all of the evidence that had avoided exclusion when assessed individually, should be excluded when the cumulative impact is taken into account.
[103] I am satisfied the trial judge committed no errors of law or principle in her s. 24(2) analysis and correctly and adequately considered cumulative impact, as she had indicated she would, at the point she undertook her final review. Having meticulously examined the impact of each Charter breach, the trial judge considered the cumulative effect and determined her original analysis remained unchanged. As per Grant, having considered the correct factors, deference is to be accorded to her conclusions.[105]
The Admission of Evidence Against the Appellants
[104] The trial judge concluded her decision by admitting the following evidence:
• Observations at Black Rock Beach in the early afternoon of June 9th; observations while following the Escalade from the Future Inn back to Black Rock Beach; and observations collected by investigators at Black Rock Beach later that day between 6 and 7 p.m.
• Observations and photographs up to the completion of the initial search incident to the arrests of Mr. Bailey and Mr. Lambert.
• Mr. Lambert’s interview with police.
• Luggage, electronic devices and the invoice bearing Mr. Lambert’s name, seized from room #327 at the Future Inn.
• Evidence obtained as a result of judicial authorizations.
[105] The trial judge excluded Mr. Bailey’s statements to the police officers on the pontoon boat; the Escalade and items seized from it incident to arrest; Mr. Bailey’s utterance at the roadside; Mr. Bailey’s police interview; clothing and toiletries seized from room #327; and information seized pursuant to judicial authorization from a search of electronic devices in the Escalade.
[106] The trial judge’s decision to admit the evidence was based on her evaluation of the evidence at the voir dire, and “her exercise of judgment as to the seriousness of the breaches and the effect of the admission (or exclusion) of the evidence obtained on the administration of justice”.[106] Those findings are entitled to deference on appeal.
[107] I would dismiss the grounds of appeal relating to the trial judge’s s. 24(2) analysis.
Trial Decision – Conspiracy to Import Cocaine
[108] The trial judge found that convictions of the appellants for conspiracy to import the 157 kilograms of cocaine required the Crown to prove beyond a reasonable doubt they joined the conspiracy before it was terminated by the Arica’s entry into Canadian waters.[107]
[109] The trial judge was satisfied beyond a reasonable doubt that the conspiracy alleged against the appellants existed. In concluding this she found:
[402] Communication between Mr. Bailey and Mr. Lambert and documents found in Mr. Bailey's residence, interpreted in light of the evidence about the location of the cocaine, shows they had met with someone who was present when the cocaine was put in the Arica's sea chest. They knew the commodity was on the Arica and knew they would have to dive to get it. Subsequently, they obtained details necessary to retrieve it, including information about the bolts and the door. Their subsequent actions demonstrate that this information was acquired so they could remove the commodity in Canada. Mr. Bailey tracked the Arica's voyage. He and Mr. Lambert researched and purchased diving equipment and the tools required to access the sea chest. One of the accused researched sea chest suction. The four accused flew to Montreal where they rented a boat and Mr. Bailey dove near the Arica. The weather was bad, the currents were strong and port authorities became interested in them. The Arica's next port of call was Halifax, so all accused travelled to Halifax where they again rented a boat and were seen diving near the Arica.[108]
[110] Defence counsel argued there was a plausible alternative theory other than a conspiracy to import. One suggestion was that the appellants received information about the cocaine “so they could, for their own benefit, “salvage” a commodity that was intended for an earlier port but hadn’t been retrieved there…”[109]
[111] The trial judge rejected the “salvage operation” proposition. She ruled out the possibility of theft from an importation on the basis of expert evidence about the violence that is associated with cocaine trafficking. She found recovery of the cocaine to be a plausible scenario, but noted it was a scenario in the context of either an ongoing or a new conspiracy to import cocaine:
[406] …It is a reasonable possibility that the original conspiracy involved importation into another country, but that failed because the product couldn't be retrieved there, resulting in a modified or new plan to retrieve the drugs in Canada. Therefore, it possible [sic] that the information was provided to Mr. Lambert and Mr. Bailey so they could recover the product in Canada on behalf of the owners.
[407] However, whether the plan was always to import into Canada or there was a new plan formed after a failed attempt elsewhere, in both scenarios there was an agreement to import the drugs into Canada. In the former there was one ongoing conspiracy to import cocaine into Canada. In the latter, there was either a new conspiracy or a substantial change in the old conspiracy (a new object -- to import into a different country - and probably a change in membership to engage a local recovery team).[110] (emphasis added)
[112] Having found beyond a reasonable doubt there was a conspiracy to import the cocaine, the trial judge continued her Carter[111] analysis, determining that Mr. Lambert and Mr. Bailey were probable members of the conspiracy. She found:
[419] I am satisfied, using only the evidence directly admissible against Mr. Bailey and Mr. Lambert, that they were probable members of both conspiracies. I will discuss the evidence in more detail at the final stage of my analysis. However, I am persuaded that Mr. Bailey had information causing him to be interested in the Arica by March 25th. From May 29th until their arrest on June 9th, they were planning and preparing to remove the cocaine from the Arica. I am satisfied that conduct was the result of an agreement that was reached earlier. That agreement was either the original agreement formed at the time of purchase or an agreement formed later. In either case, I am satisfied they agreed before the cocaine entered Canadian waters to facilitate its importation into Canada and then acted with the intent to carry out that agreement.[112]
[113] In her analysis of whether the Crown had proven beyond a reasonable doubt that the appellants’ guilt of conspiracy to import was the only reasonable inference from the evidence, the trial judge concluded:
[444] However, I am convinced beyond a reasonable doubt that, even if Mr. Lambert was working for others to retrieve the cocaine in Canada or recover it because the original plan to retrieve it elsewhere failed, he became part of that agreement before the Arica entered Canada. Mr. Bailey recorded the Arica's itinerary on a piece of paper that was found in his residence. That itinerary included her location starting on March 25th. In my view, the only rational inference is that he made that note sometime before that date. No reason has been suggested for why he would record the Arica's past locations. Given the subsequent evidence establishing Mr. Bailey's interest in the Arica, there is a clear reason he would have recorded her future locations. This shows knowledge of the Arica and an interest in her movements well before she entered Canadian waters. Based on all the evidence, I am convinced that this was done in conjunction with Mr. Lambert. All available communication and evidence show they were working together on their venture involving the Arica. By May 29th plans to recover the product from the Arica were well underway. Mr. Bailey was searching for information about the Arica and making a packing list that included diving gear. This indicates he already knew the commodity was on the Arica and in a location that would involve diving. By May 30th, tickets to Montreal had been booked for Mr. Lambert, Mr. Seinauskas and Mr. Bailey. This, together with tracking applications on Mr. Bailey's tablet and the note on his desk recording that the Arica would be at the CAST terminal in Montreal, confirms their interest and intent to meet her. On May 30th, Mr. Bailey and Mr. Lambert were also discussing the need for a specific wrench. This indicates more detailed knowledge of the specific location of the commodity. By May 31st, Mr. Lambert and Mr. Bailey were discussing details of the tools they would need. Mr. Lambert's language, "Buddy we were with was on site when it was done" suggests that he and someone else had met with the person sometime before that date. These actions were in furtherance of an agreement which would have been reached before the actions were taken. In my view the agreement was made before March 25th, but at the very latest, the agreement was made sometime before May 29th.
[445] The Arica was still in European ports on March 25th, when Mr. Bailey first recorded her location. She left Antwerp, Belgium on May 25, 2018 and arrived in Montreal on June 4, 2018. Documents show no delays during her voyage from Antwerp to Montreal. There is no direct evidence of when she entered Canadian waters. However, by May 29th, when Mr. Bailey was making packing lists and he and Mr. Lambert were discussing diving gear, she was four days out of Antwerp and still six days from Montreal. Applying common sense, a general knowledge of geography and using the 12-mile territorial limit as the limit on Canadian waters, the only reasonable inference is that she had not yet entered Canadian waters at that point.[113]
[114] The trial judge found in relation to Mr. Lambert the only “rational inference”[114] from his communication and conduct was that he agreed to retrieve the cocaine in Canada and made that agreement before the Arica entered Canadian waters. The trial judge continued:
[447] …Mr. Lambert was either involved at the time of the original purchase of the cocaine which involved a plan to import it into Canada or agreed later to assist the owners to recover drugs that had been destined for another country. In either case, he agreed to help import the cocaine into Canada and I conclude that he joined that agreement before the cocaine had entered Canada. By agreeing to facilitate the importation of drugs into Canada before the object of the agreement, the importation, was complete, he became a member of a conspiracy to import cocaine into Canada. The possibility of some earlier agreement to import the cocaine into some other country is of no consequence.[115]
[115] On the basis of the same reasoning, the trial judge found Mr. Bailey guilty of conspiracy to import cocaine. She found he had agreed with Mr. Lambert and others, before the Arica entered Canadian waters, to assist in the importation of the cocaine being carried in the starboard sea chest. The trial judge rejected any suggestion that the evidence supported any other “rational or reasonable inference”. She noted that Mr. Bailey:
[456] …was aware of the need to maintain secrecy. In addition to the communication between he and Mr. Lambert that I’ve already referred to, Mr. Bailey also asked a contact on June 5, 2018, to delete information he had sent her about what he was doing in Halifax and followed up the next day to make sure.[116]
[116] In challenging the trial judge’s factual findings, the appellants, dissatisfied with her assessment of the evidence, have effectively sought to obtain a different outcome on appeal. Their “it could have been merely a retrieval operation” argument was rejected by the trial judge following a thoughtful and legally correct analysis. Her determinations are entitled to deference. I am satisfied the appellants’ convictions for conspiracy to import cocaine were firmly grounded in the evidence. I would not give effect to this ground of appeal.
Disposition
[117] The appellants were convicted following a lengthy and demanding trial. The trial judge showed an impressive capacity to deal with this challenging, complex case: in her painstaking attention to detail in her voir dire and trial decisions, her comprehensive and authoritative grasp of the legal principles involved, and her sure-footed treatment of the evidence and arguments. There is no basis for disturbing her conclusions and I would dismiss these appeals.
Derrick, J.A.
Concurred in:
Farrar, J.A.
Bourgeois, J.A.
[1] R. v. Alvarado-Calles, 2020 NSPC 38 (“Trial Decision”).
[2] [1975] 1 S.C.R. 729.
[3] R. v. Lambert, 2020 NSPC 37 (“Voir Dire Decision”).
[4] Mr. Alvarado-Calles and Mr. Seinauskas were found not guilty of all charges.
[5] Voir Dire Decision, at para. 2.
[6] Trial Decision.
[7] Voir Dire Decision, at para. 204.
[8] Sergeant Glode at the time of trial.
[9] Voir Dire Decision.
[10] R. v. West, 2012 NSCA 112, at para. 74.
[11] R. v. Bartle, [1994] 3 S.C.R. 173.
[12] R. v. Fuller, 2012 ONCA 565; R. v. Owens, 2015 ONCA 652.
[13] Voir Dire Decision, at para. 203.
[14] Voir Dire Decision.
[15] 2010 SCC 35, at para. 27.
[16] R. v Willier, 2010 SCC 37, at para. 30; R. v. Taylor, 2014 SCC 50, at para. 23; R. v. Owens, 2015 ONCA 652, at para. 24; R. v. Knoblauch, 2018 SKCA 15, at para. 26; R. v. Burnett, 2021 ONCA 856, at para. 132; R. v. Simpson, 2023 ONCA 23, at para. 11.
[17] 2009 SCC 32, at para. 86.
[18] Voir Dire Decision.
[19] Corporal Campbell at the time of trial.
[20] Voir Dire Decision.
[21] Voir Dire Decision.
[22] Voir Dire Decision.
[23] R. v. Feeney, [1997] 2 S.C.R. 13.
[24] Voir Dire Decision.
[25] Voir Dire Decision, at para. 237.
[26] Voir Dire Decision, at para. 240.
[27] Voir Dire Decision, at para. 245. The trial judge’s reliance on the plain view doctrine was not appealed.
[28] Voir Dire Decision, at para. 260.
[29] Voir Dire Decision, at para. 261.
[30] Voir Dire Decision.
[31] R. v. Pino, 2016 ONCA 389.
[32] Voir Dire Decision.
[33] Voir Dire Decision, at paras. 273-276.
[34] 2009 SCC 34
[35] Voir Dire Decision, at para. 281, citing R. v. Harrison, supra, at para. 36.
[36] Voir Dire Decision.
[37] Voir Dire Decision, at para. 289.
[38] The appellants’ complaints were not with the observations and surveillance per se, but with the presence of the police such that they were able to observe because of the information obtained from Mr. Bailey and Mr. Seinauskas on the pontoon boat.
[39] Voir Dire Decision, at para. 316.
[40] Voir Dire Decision.
[41] Voir Dire Decision, at para. 299.
[42] Voir Dire Decision, at para. 301.
[43] Voir Dire Decision, at para. 297.
[44] Voir Dire Decision, at para. 311
[45] The trial judge concluded Mr. Seinauskas had “clearly wished to exercise his right to silence” on the pontoon boat and what he did say was not integral to the Crown’s case at trial. She found the admission of Mr. Seinauskas’ statement would bring the administration of justice into disrepute.
[46] Voir Dire Decision.
[47] Voir Dire Decision, at para. 315.
[48] Voir Dire Decision, at para. 299.
[49] Grant, supra, at para. 133.
[50] R. v. Tessier, 2022 SCC 35, at para. 108 citing Grant, supra, and R. v. Le, 2019 SCC 34.
[51] Voir Dire Decision, at para. 321.
[52] Voir Dire Decision, at para. 322.
[53] Voir Dire Decision, at para. 322.
[54] Voir Dire Decision, at para. 323.
[55] Voir Dire Decision, at para. 324.
[56] Voir Dire Decision, at para. 327.
[57] Voir Dire Decision.
[58] Voir Dire Decision.
[59] R. v. Côté, 2011 SCC 46.
[60] Voir Dire Decision.
[61] R. v. Fan, 2017 BCCA 99, at para. 71.
[62] R. v. Caron, 2011 BCCA 56, at para. 38.
[63] Voir Dire Decision, at para. 322.
[64] Voir Dire Decision, at para. 318.
[65] Voir Dire Decision, at para. 323.
[66] Voir Dire Decision, at para. 50.
[67] R. v. Pawar, 2020 BCCA 251, at paras. 53-55.
[68] Voir Dire Decision.
[69] R. v. Golub, [1997], 117 C.C.C. (3d) 193 (O.A.C.), at para. 18.
[70] R. v. Sheppard, 2002 SCC 26, at para. 55.
[71] R. v. Santos, 2022 SKCA 50, at para. 52; see also: R. v. Le, 2019 SCC 34, at para. 143; R. v. Paterson, 2017 SCC 15, at para. 43.
[72] Voir Dire Decision, at para. 329.
[73] Voir Dire Decision, at para. 331.
[74] Voir Dire Decision, at para. 332.
[75] R. v. Prosper, [1994] 3 S.C.R. 236.
[76] Voir Dire Decision, at para. 334.
[77] Voir Dire Decision, at para. 337.
[78] Voir Dire Decision, at para. 342.
[79] Matthew Lambert’s statement provided to police at the police station did not factor into the trial judge’s trial decision. She did not reference it in her listing of the evidence directly admissible against Mr. Lambert on the conspiracy charge (Trial Decision, at para. 416).
[80] 2012 ONCA 707.
[81] Rocha, supra, at para. 27.
[82] Ibid, at para. 28.
[83] Ibid, at para. 29.
[84] Ibid, at para. 28.
[85] Voir Dire Decision, at para. 350.
[86] Voir Dire Decision, at para. 351.
[87] Voir Dire Decision, at para. 354.
[88] Voir Dire Decision.
[89] Voir Dire Decision.
[90] Voir Dire Decision.
[91] 2020 ONCA 246.
[92] 2022 NSCA 61.
[93] Adler, supra, at para. 39.
[94] Voir Dire Decision, at para. 282.
[95] 2017 BCCA 99; 2010 BCCA 72; 2019 BCCA 116; 2011 BCCA 280; and 2018 ONCA 375; respectively.
[96] Voir Dire Decision.
[97] The trial judge referenced Grant, supra, at para. 75; Robertson, supra, at para. 52; and Fan, supra, at paras. 72-73.
[98] 2010 BCCA 72
[99] Voir Dire Decision.
[100] 2019 SCC 34, at para. 151.
[101] See: R. v. Trieu, 2010 BCCA 540, at para. 98; R. v. MacKenzie, 2013 SCC 50, at para. 133 (in dissent but not on this point); R. v. Poirier, 2016 ONCA 582, at para. 94; R. v. Keller, 2019 ABCA 38, at para. 38.
[102] Voir Dire Decision, at para. 366.
[103] White, supra, at para. 61.
[104] Supra
[105] Grant, supra, at para. 127.
[106] Lauriente, supra, at para. 20.
[107] The trial judge relied on: R. v. Bell, [1983] 2 S.C.R. 471; R. v. Banky, [1988] 86 N.S.R. (2d) 347 (N.S.S.C.) and R. v. Jagodic and Vagagic, [1985] 69 N.S.R. (2d) 19 (N.S.S.C.).
[108] Trial Decision.
[109] Trial Decision, at para. 404.
[110] Trial Decision.
[111] R. v. Carter, [1982] 1 S.C.R. 938.
[112] Trial Decision.
[113] Trial Decision.
[114] Trial Decision, at para. 447. R. v. Villaroman, 2016 SCC 33, referenced earlier by the trial judge, indicated “reasonable” not “rational” is the preferred terminology. I find it to be of no consequence that the trial judge used “rational” in this case.
[115] Trial Decision.
[116] Trial Decision.