État du droit en cas de délai dans l'exercice au droit à l'avocat

R v Araya, 2025 ABCA 61

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[50]           The right to counsel under section 10(b) of the Charter requires that everyone arrested or detained be informed of their right to contact counsel, and if they ask to speak to counsel, to be provided with access to counsel at the first reasonably available opportunity. See R v Suberu, 2009 SCC 33 at paras 40-43, R v Brunelle, 2024 SCC 3 at paras 80-83, R v Brown, 2024 ONCA 763 at paras 32-33.

[51]           In this case the issue was whether the appellant was provided access to contact counsel at the first reasonably available opportunity.

[52]           The implementation of the right to counsel is to be done immediately, however, there are exceptions where there is a risk of destruction of evidence, public safety, police safety and other urgent or dangerous circumstances. See Suberu at para 42, R v Badu, 2022 ABCA 267 at para 43, R v Rover, 2018 ONCA 745 at paras 26-27, Brown at para 35. The determination of whether the delay is justified and reasonable involves a fact specific and highly contextual inquiry that must be proven by the Crown: Brunelle at para 83, Brown at para 34, Rover at para 28.

[53]           The execution of a search warrant has been recognized as a reasonable justification for delaying access to counsel in some circumstances: Rover at para 26, R v Griffith, 2021 ONCA 302 at paras 2-3. However, as stated by this Court in R v Russell, 2020 ABCA 90 at paragraph 19, “concerns of a general or non-specific nature applicable to virtually any search cannot justify delaying access to counsel”. The police must turn their minds to the specific circumstances of the case in question and conclude on a reasonable basis that there are police or public safety concerns or a need to preserve evidence which justifies the delay in granting access to counsel. “Even when those circumstances exist, the police must also take reasonable steps to minimize the delay in granting access to counsel”: Rover at para 27. Where there is no specific basis to support the concerns of the police regarding officer safety or destruction of evidence, the delay will breach section 10(b) of the Charter: Badu at para 48.

[59]           In his decision, the trial judge referred to the Rover, Griffith and Badu cases and stated that “Detective Fleming articulated case-specific and eminently reasonable reasons why he made the decision to delay the accused’s access to a telephone”: Araya at para 52. He found that the specific concerns of Detective Fleming justified the delay in this case. We see no error in the trial judge’s reasoning and conclusion that there was no section 10(b) breach because of the delay in allowing the appellant to contact counsel between 3:15 pm and 6:30 pm on the date in question.

The Second Delay of Section 10(b) Rights

[60]           At 6:30 pm the appellant was to be given access to a telephone to contact counsel but did not access a telephone until 10:50 pm. The trial Crown conceded this second delay breached the appellant’s section 10(b) Charter rights.

[61]           The appellant argues that the trial judge erred in stating that the appellant had the onus of establishing the facts underlying a Charter application and that he had not done so. The appellant argues that he need only show that there was a delay and then the Crown bears the burden to justify the delay.

Law on Proof of Access to Counsel

[62]           In R v Taylor, 2014 SCC 50 at para 24, the Supreme Court stated that the police are under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances. Where a detainee indicates they wish to speak to counsel at approximately 6:18 pm but they do not make a call until 10:50 pm, there is a delay which the Crown must then show to be reasonable: R v Hobeika, 2020 ONCA 750 at para 74.

[63]           In R v Luong, 2000 ABCA 301, this Court stated at paragraph 9 that “the onus is upon the person asserting a Charter violation to establish the infringement or denial of the right guaranteed by the Charter”. This Court went on at paragraph12 stating in part:

A trial judge must first determine whether or not, in all the circumstances, the police provided the detainee with a reasonable opportunity to exercise the right to counsel; the Crown has the burden of establishing that the detainee who invoked the right to counsel was provided with a reasonable opportunity to exercise the right.

[64]           The issue is whether the police have shown that the appellant was given a reasonable opportunity to exercise the right to counsel.

La fouille accessoire à l'arrestation vue par la Cour d'appel de l'Alberta

R v Araya, 2025 ABCA 61

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Search Incident to Arrest

[40]           The trial judge found that Constable Chan’s seizure of the firearm from the satchel was incident to arrest and there was no breach of the appellant’s right to be secure from unreasonable search and seizure as guaranteed by section 8 of the Charter.

[41]           Search incident to arrest requires: (1) the arrest itself must be lawful; (2) the search must be incident to arrest; and (3) the manner in which it is conducted must be reasonable: R v Stillman, 1997 CanLII 384 (SCC), [1997] 1 SCR 607, 1997 CarswellNB 107 at para 27, R v Tim, 2022 SCC 12 at para 46, R v Marckoski, 2024 SKKB 162 at paras 75-78.

[42]           The appellant submits that the search was not incident to arrest because there was no imminent threat justifying a safety search.

[43]           One of the main purposes of search incident to arrest is to ensure the safety of police officers and members of the public. The police officer conducting the search must believe that the search is for their protection and that belief must be based on objective grounds which are reasonable. See Tim at para 53, R v Stairs, 2022 SCC 11 at paras 34-37. The police need not have reasonable grounds to believe that the search will produce a weapon. See, R v Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51, 1998 CarswellMan 1 at para 19.

[44]           In this case, there were ample objective grounds for Constable Chan believing that the appellant, whom he thought was Mr. Lugela, may be carrying a firearm. In addition to being informed of Mr. Lugela’s history with firearms, Constable Chan testified that when chasing the appellant, he could see the appellant’s hand stop and try “to access something on their body like a firearm or anything that could cause us harm”. He explained he patted down the satchel to see if there was anything he needed to be worried about or anything that might risk officer safety.

[45]           Constable Chan’s grounds for the search incident to arrest more than meet the test required in Caslake. The trial judge did not err in finding that the search incident to arrest was legal. There was no breach of section 8 of the Charter.

Comment apprécier la fuite du suspect dans l'examen de la légalité de la détention

R v Araya, 2025 ABCA 61 

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[37]           The appellant focuses on the lack of any grounds to detain the appellant prior to the police exiting the TAC team van. As stated above, if the appellant had not run when confronted by the police officers, the actions of the police officers would almost certainly have been much different. The appellant’s decision to run was a significant factor in the circumstances.

[38]           The reactions of suspects to police presence can form part of the constellation of factors that lead to the decision to detain. Flight from police, prior to detention, is a factor when determining whether the police have reasonable grounds to suspect an individual is involved in criminal conduct and whether they can lawfully detain that individual: Nesbeth at para 14, R v Dene, 2010 ONCA 796 at para 14, R v Plummer, 2011 ONCA 350 at para 23.

[39]           In oral argument, the appellant argued that the appellant’s race can factor into the decision to run and therefore, that it was not reasonable for Constable Chan to rely on the fact the appellant ran when forming his belief that he was chasing Mr. Lugela. Case law, such as Reid, recognizes that a person’s racialized status is a relevant consideration in the mix of factors informing what a reasonable person in the individual’s circumstances would have concluded when interacting with the police (para 28). However, we are not satisfied that the existence of other potential explanations for the appellant’s flight undermines the reasonableness of Constable Chan’s subjective belief that he was chasing Mr. Lugela in this case.

Rappel de ce que constitue la détention

R v Araya, 2025 ABCA 61

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Detention

[35]           In oral argument, the appellant emphasized that the police planned to “detain” both individuals knowing that one of them was not Mr. Lugela. Although Constable Chan used the word “detain”, he was not necessarily describing detention as used in section 9 of the Charter. As the Supreme Court of Canada explained in Mann, being stopped by the police is not always subject to Charter protection:

“Detention” has been held to cover, in Canada, a broad range of encounters between police officers and members of the public.  Even so, the police cannot be said to “detain”, within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview.  The person who is stopped will in all cases be “detained” in the sense of “delayed”, or “kept waiting”.  But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.

[36]           More significantly, the police did not initially detain the appellant. Detention does not occur, and a person’s section 9 rights are not triggered, until an individual is physically or psychologically detained: Grant at para 44. A person who flees police without submission or acquiescence to police direction is not detained:  R v Nesbeth, 2008 ONCA 579 at paras 14-16 and R v Ratt, 2020 SKCA 19 at para 37. In this case, there was no detention before the appellant chose to run. If the appellant had not run and provided identification, he may not have been detained.

Le moment et les circonstances de l'arrestation sont des paramètres à prendre en considération dans l'appréciation de la légalité de l'arrestation

R v Araya, 2025 ABCA 61

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[32]           The appellant also argues that the police should not have attempted to arrest Mr. Lugela when he was with another individual, especially in the circumstances when it would be difficult to distinguish between the two. The appellant submits that Mr. Lugela’s arrest should have been delayed until Mr. Lugela was alone or the police could be sure they were arresting Mr. Lugela. He argues the lack of steps taken by the police to avoid confusion vitiates the objectively reasonable nature of the grounds for arrest.

[33]           The circumstances of an apprehension and arrest may rapidly evolve into a different situation than that anticipated by the police. As stated by the Supreme Court in R v Mann, 2004 SCC 52 at paragraph 16, “Given their mandate to investigate crime and keep the peace, police officers must be empowered to respond quickly, effectively and flexibly to the diversity of encounters experienced daily on the front lines of policing”. Police officers need to make decisions in volatile, sometimes dangerous, rapidly changing situations, based on information that is often incomplete or less than exact: Beaver at para 72, R v Coutu, 2020 MBCA 106 at para 18.

[34]           The duty of police officers to investigate crime and keep the peace as well as protect members of society often includes the need to arrest dangerous individuals as soon as possible to eliminate danger to the public: see 38(1)(a)(iv) of the Police Act, RSA 2000, c P-17. In this case, the police knew that Mr. Lugela had been in possession of a firearm and that the two individuals in question had entered into a store with a satchel of the kind that Mr. Lugela often used to carry a firearm. The police decision to apprehend Mr. Lugela in the parking lot took into consideration factors such as preserving evidence and effecting the arrest without endangering members of the public, the police officers and the individuals in question. The police officers knew that Mr. Lugela was one of the two individuals and could not be expected to anticipate with exactitude what would occur and what actions the appellant might undertake. Their decision did not undermine the lawfulness of the arrest.

Le fait pour les policiers de dresser un plan pour la détention du suspect n'implique pas que la détention devient abusive

R v Araya, 2025 ABCA 61

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[27]           The appellant concedes that a police officer can be honestly mistaken about the identity of an arrestee without undermining the reasonableness of the grounds for arrest. However, the appellant argues that the TAC team’s plan to detain another, unidentified individual, while they arrested Mr. Lugela, made his subsequent arrest unlawful.

[28]           The police admitted that they did not have any knowledge of the appellant’s involvement in a crime, did not know the appellant’s identity and did not know the appellant’s relationship to Mr. Lugela. In cross-examination, Constable Chan testified the police planned to “detain” both persons to control the situation and for officer safety.

[29]           The appellant argues the lawfulness of an arrest, pursuant to section 9 of the Charter, includes the police plan for the arrest and whether it is Charter compliant. The appellant provides no case law as authority for such a proposition.

[30]           In R v Reid, 2019 ONCA 32, the accused appellant argued he was illegally detained when the police spoke to him when they had no grounds to arrest. Among the facts he relied on was police testimony that if the appellant had tried to leave, the police would have stopped him from doing so. However, the appellant did not try to leave. The Ontario Court of Appeal stated, “What might have happened had events unfolded differently does not inform the legal character of what did happen” (para 44). The Court held that “Charter rights are not breached by intention, but action” and quoted R v Clayton, 2007 SCC 32 at para 48:

[Officer] intention alone does not attract a finding of unconstitutionality. It is not until that subjective intent is accompanied by actual conduct that it becomes relevant. We would otherwise have the Orwellian result that Charter breaches are determined on the basis of what police officers intend to do, or think they can do, not on what they actually do.

[31]           We find that the police officers’ plan of arrest did not make the arrest unlawful.

Le fait qu'un policier se trompe sur l'identité de la personne arrêtée n'invalide en soi la légalité de l'arrestation

R v Araya, 2025 ABCA 61

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Mistaken Identity

[20]           In this case, while the police had reasonable grounds to believe that Mr. Lugela had committed a criminal offense and could be arrested, they did not have grounds to arrest the appellant before their interaction with him in the parking lot. Constable Chan was clearly mistaken as to the identity of the individual he arrested.

[21]           An arresting officer may be incorrect as to the identity of the arrestee. This does not make the arrest unlawful. In R v Whitfield, 2023 ONCA 479, the court stated at paragraph 21:

The police were not required to be correct about the identity of the appellant before they formed grounds to arrest. Under s. 495 of the Criminal Code of Canada, R.S.C. 1985, c. C-46, a warrantless arrest is lawful if the arresting officer believes, on reasonable grounds, that the suspect has committed an indictable offence. The standard of “reasonable grounds” focuses on the officer’s state of mind and the reasonableness of the officer’s belief, rather than the actual state of affairs. Reasonable grounds can be “based on a reasonable belief that certain facts exist even if it turns out that the belief is mistaken”: R. v. St. Clair, 2021 ONCA 895, 408 C.C.C. (3d) 117, at para. 26, leave to appeal to S.C.C. refused, 40270 (November 24, 2022); see also R. v. Robinson, 2016 ONCA 402, 336 C.C.C. (3d) 22, at para. 40.

[22]           The issue was whether Constable Chan subjectively believed the person he arrested was Mr. Lugela and whether that belief was objectively reasonable. The trial judge referred to the cases of R v Yusuf, 2016 ONSC 514, R v Burke, 2009 SCC 57 and R v Hall (1995), 1995 CanLII 647 (ON CA), 22 OR (3d) 289, 1995 CarswellOnt 107 (CA), for the principle that an officer’s subjective belief can be reasonably held in cases of mistaken identity, thereby making the arrest lawful: Araya at para 29.