R v Rover – 2018 ONCA 745 (Doherty):

[16] The appellant was taken into custody. He was not told why he was not being allowed to speak to counsel or when he would be allowed to speak to counsel.

[17] The police received the signed telewarrant at 12:50 a.m. At 2:55 a.m., a special entry team, assembled after the warrant was issued, entered the residence and secured the scene. The search began at 3:01 a.m. At 4:20 a.m., the arresting officer was told by the investigators that he could allow the appellant to contact his lawyer. For various reasons, the appellant did not speak to counsel until 5:45 a.m. The police did not attempt to speak with the appellant before he had an opportunity to speak with counsel.
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[32] The police practice described by the officers replaces the narrow, case-specific exception to the constitutional right to speak to counsel without delay upon arrest with a protocol that routinely delays an arrested person’s access to counsel for an indeterminate time, usually hours, whenever the police, for whatever reason, deem it appropriate to arrest them before applying for a search warrant. There is no evidence that any of the officers turned their mind to the specific circumstances of this case before deciding that the appellant would be arrested and denied access to counsel for several hours while the police sought, obtained, and executed a search warrant. On the evidence of the police, there was no need to consider the specifics of this case. For them, the decision to arrest the appellant before seeking the search warrant dictated that the appellant would not be allowed to contact a lawyer until the warrant was executed.

[33] In my view, to fall within the exception to the requirement that an arrested person be allowed to speak to counsel without delay, the police must actually turn their mind to the specific circumstances of the case, and they must have reasonable grounds to justify the delay. The justification may be premised on the risk of the destruction of evidence, public safety, police safety, or some other urgent or dangerous circumstance. Furthermore, if the police determine that some delay in allowing an arrested person to speak to counsel is justified to permit execution of the warrant, then they must consider whether it is necessary to arrest the individual before they execute the warrant. The police cannot create a justification for delaying access to counsel by choosing, for reasons of convenience or efficiency, to arrest an individual before seeking, obtaining, and executing a search warrant. Police efficiency and convenience cannot justify delaying an arrested person’s right to speak with counsel for several hours.

[34] The effective implementation of the right to counsel guaranteed by s. 10(b) depends entirely on the police. The police must understand that right and be willing to facilitate contact with counsel. The practice under which the officers involved in this case operated demonstrates a disregard of a fundamental constitutional right. The appellant’s right to speak with counsel was denied at the time of his arrest, when the police refused his request to speak with counsel.

[35] While there was no causal connection between the discovery of the drugs and the s. 10(b) breach, there was a close temporal connection. The parties acknowledge that the connection is sufficient to engage s. 24(2): see R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561.
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[49] In my view, however, this is one of those cases in which the long-term repute of the administration of justice requires the sacrifice of the short-term benefit of an adjudication on the merits of this case. The seriousness of the police misconduct points very strongly toward exclusion. The negative impact of the breach on the appellant’s constitutionally-protected rights also points, although less strongly, to exclusion. The two together make a strong case for exclusion. Society’s interests in an adjudication on the merits does not tip the balance in favour of admissibility: McGuffie, at paras. 61-64. I would exclude the evidence.