R. v. Hobeika
Ontario Reports
Ontario Court of Appeal
Doherty, van Rensburg and Trotter JJ.A.
November 26, 2020
153 O.R. (3d) 350 | 2020 ONCA 750
Case Summary
Charter of Rights and Freedoms — Right to counsel — Exclusion of evidence — Accused informing police within half hour of arrest a wish to speak to counsel — No evidence of any steps taken by police to facilitate that right for the next five hours — Trial judge erred in finding no breach of right to counsel, but evidence obtained was admissible — Breach, though serious, was a specific isolated failure by officers in charge of accused — Excluding evidence would have been more of a punishment of the officers than an attempt to vindicate repute of justice system — Charter of Rights and Freedoms, ss. 10(b), 24(2).
Charter of Rights and Freedoms — Search and seizure — Police obtaining warrant to search accused's condominium and vehicle — Police learning of accused's association with second condominium — While second condominium under surveillance, accused seen leaving condominium and entering vehicle subject to warrant — Accused arrested and police entering second condominium before obtaining warrant — Both condominiums searched pursuant to warrants and drugs found — No breach of s. 8 of Charter — First warrant validly issued — Entry to second condominium prima facie unreasonable but justified by exigent circumstances exception — Charter of Rights and Freedoms, ss. 8, 24(2) — Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 11(7).
Criminal law — Proceeds of crime — Forfeiture — Accused convicted of trafficking offences and sentenced to 8.5 years and forfeiture of cash and offence-related condominium property — Sentencing judge committed no error in refusing to grant relief from forfeiture.
Criminal law — Sentencing — Appeals — Conditional sentence — Two accused convicted of trafficking offences — One accused sentenced to 8.5 years and forfeiture of cash and offence-related condominium property — Other accused sentenced to 4.5 years — Sentence for first accused consistent with similar cases and judge committed no error in refusing to grant relief from forfeiture — Sentence for second accused was appropriate as conditional sentence would have been disproportionate to gravity of offence and culpability.
A confidential informant advised the police that H was selling drugs out of his car and from his condominium residence in Liberty Village. The police obtained search warrants for the condominium and the vehicle and set up surveillance, but H did not appear. They had information that the vehicle was registered to a unit in a condominium in Etobicoke, so officers were sent to that location and found the vehicle in the parking lot. The building directory listed H as an occupant. Police discovered that a person charged with drug trafficking had been released on bail with H as his surety and was obliged to live with H. When police observed H and another person leave the condominium unit and enter the vehicle, they executed the search warrant for the vehicle. Police discovered a significant quantity of marihuana and arrested H on a charge of possession. Although they did not yet have a warrant for the Etobicoke condominium, officers forced their way into the unit upon hearing someone inside who would not open the door for them. S was inside. After the warrant for the unit arrived the police executed it, revealing a substantial quantity of various narcotics. At the same time another group of officers executed the warrant on the Liberty Village condominium and located substantial quantities of narcotics and cash. The police subsequently obtained additional search warrants and production orders. H and S were charged with four counts of possession of controlled substances for the purpose of trafficking. H's charges were based on drugs seized from both condominiums and the vehicle. S's charges related only to drugs seized from the Etobicoke condominium. H also faced three counts of possession of proceeds of crime and one count of money laundering. H and S were convicted on all counts. H was sentenced to 8.5 years with 227 days' credit for pre-trial custody, and was ordered to forfeit the cash and the Etobicoke condominium. S was sentenced to 4.5 years with a small credit for pre-sentence custody. On the basis of alleged Charter breaches, H and S appealed conviction and sentence.
Held, the appeals should be dismissed.
The searches of the condominiums and the vehicle did not violate s. 8 of the Charter. The warrants for the searches of the Liberty Village condominium and the vehicle were issued based on information provided by the informant. The trial judge made no error in his analysis that the information provided a basis on which the justice could issue the warrant. The decision to execute the warrant of the Liberty Village condominium in the face of uncertainty as to H's place of residence did not render the search of that condominium unreasonable. None of the information connecting H to Etobicoke contradicted the information relating to Liberty Village. Although the warrantless search of the Etobicoke condominium was prima facie unreasonable, it was found to be justified by the "exigent circumstances" exception in s. 11(7) of the Controlled Drugs and Substances Act. The probable cause component of the exception was satisfied based on a combination of what was learned from the informant, plus information connecting H to the Etobicoke condominium, plus information connecting other persons living there to drug possession and trafficking. The urgency component of the exception was also met in that the police had been actively involved in obtaining a warrant when H left the Etobicoke condominium. Their strategy changed in reaction to that new situation. What the police heard at the door to the unit and what they saw when they entered without a warrant was included in the information to obtain the warrant for the Etobicoke unit. None of that information was constitutionally tainted and the warrant was valid. For all the same reasons, the subsequent searches and seizures were lawful. There was no challenge to the search of the vehicle.
The trial judge erred in finding no breach of H's right to counsel under s. 10(b) of the Charter. Within half an hour of arrest the police were aware that H had identified the specific lawyer he wished to speak with. However, there was no evidence of any steps taken by police to facilitate H's contact with counsel b etween his arrest shortly before 10:00 p.m. and his conversation with the officer in charge at 3:00 the following morning. That breach, although serious, was a situation-specific isolated failure by the officers who had custody of H during the relevant time period. To exclude the evidence obtained in the searches would have been a case of punishing the offending officers rather than vindicating the long-term repute of the justice system. The evidence was admissible despite the breach.
The sentence imposed on H was consistent with sentences imposed in cases involving commercial drug dealers and substantial quantities of various drugs. The trial judge's refusal to exercise his discretion and grant relief from forfeiture revealed no error. Counsel submitted on appeal that an appropriate sentence for S was a conditional sentence rather than a term of imprisonment, stressing his relative youth, absence of criminal record, strong family support, positive rehabilitative prospects, and his immigration status. However, a sentence of less than two years would have been disproportionate to the gravity of the offence and S's culpability.
Cases Cited
Grant (para. 78), applied
Paterson (para. 42), considered
Rover (para. 85), distinguished
Statutes, Regulations and Rules Cited:
Canadian Charter of Rights and Freedoms, 1982, s. 8, s. 10(b), s. 24(2)
Controlled Drugs and Substances Act, S.C. 1996 c. 19, s. 11(7)
APPEALS from convictions entered on November 9, 2017 by Justice S.F. Dunphy of the Superior Court of Justice, reported at 2017 ONSC 6475, and on appeal from the sentences imposed on February 26, 2018, reported at 2018 ONSC 1293.
Gregory Lafontaine, for the appellant Hobeika.
Anthony Marchetti, for the appellant Sanchez.
Jeanette Gevikoglu and Christina Malezis for the respondent.
The judgment of the court was delivered by
I
Overview
1On September 16, 2013, the police searched two condominium units, one in Liberty Village (the "Liberty Village condominium"), and the other in Etobicoke (the "Etobicoke condominium"). The appellant, Hobeika, was connected to both. The appellant, Sanchez, was arrested in the Etobicoke condominium at the time of the search. The police also searched Hobeika's vehicle, located in the parking lot outside of the Etobicoke condominium. Hobeika and another person were in the vehicle when it was stopped and searched.
2The police found an assortment of drugs in both condominiums and the vehicle. They also located significant amounts of cash in both condominiums. Subsequent police investigation led to the seizure of funds from Hobeika's bank accounts and other locations. In total, the police seized about $400,000 in cash and bank drafts.
3Hobeika and Sanchez were charged with four counts of possession of controlled substances for the purposes of trafficking. Each count referred to a different drug. Hobeika's charges were based on drugs seized from both condominiums and the vehicle. Sanchez's charges related only to drugs seized from the Etobicoke condominium. Hobeika also faced three counts of possession of money he knew to be the proceeds of crime and one count of money laundering.
4The trial judge convicted the appellants on all counts. He sentenced Hobeika to 81/2 years with 227 days' credit for presentence custody. He sentenced Sanchez to 41/2 years with a small credit for presentence custody.
5With one small exception, the trial judge ordered the forfeiture of all cash found to have been in Hobeika's possession. The trial judge also ordered the forfeiture of the Etobicoke condominium owned by Hobeika. He concluded the condominium was "offence-related property" and declined to grant relief from forfeiture.
6Both appellants appeal conviction and sentence. I would dismiss the appeals
II
The Conviction Appeals
7Hobeika alleges violations of his rights under s. 8 and s. 10(b) of the Charter.1 Hobeika contends the searches of the Liberty Village condominium and the Etobicoke condominium violated his s. 8 rights. He makes the same submission with respect to the search of his vehicle. Hobeika further submits the police violated his rights under s. 10(b) when they did not facilitate his contact with counsel for over four hours after he was arrested and had asserted his right to counsel. Hobeika contends the constitutional violations justify the exclusion of all, or at least some, of the evidence proffered against Hobeika.
8On his conviction appeal, Sanchez submits the police infringed his rights under s. 8 of the Charter when they entered and searched the Etobicoke condominium. He argues the evidence of the drugs found in that search should be excluded under s. 24(2). Without that evidence, Sanchez must be acquitted.
9In his factum, Sanchez argued the evidence could not reasonably support a finding Sanchez was in possession of the drugs found in the Etobicoke condominium. Counsel did not make oral argument in support of this submission. I do not propose to address it in these reasons. It is sufficient to say the trial judge's analysis of the evidence and his findings fully support his conclusion Sanchez was in possession of some, but not necessarily all, of the drugs found in the Etobicoke condominium: see R. v. Hobeika, 2017 ONSC 6475, at paras. 44-48.
A. The Section 8 Arguments
10The appellant's s. 8 arguments focus mainly on the warrantless entry and search of the Etobicoke condominium. They do, however, raise other s. 8 arguments. A somewhat detailed review of the evidence is necessary to understand those arguments. My summary borrows heavily from the trial judge's reasons on the Charter application: 2017 ONSC 6066 ("Charter Reasons")
11In early September 2013, a confidential informant ("CI") advised the police Hobeika was selling various drugs out of his car and the Liberty Village condominium, where he lived. The CI had purchased drugs from Hobeika at that location. The CI was well known to the police and had provided reliable information in the past.
12On September 13, 2013, after investigating and confirming some of the information provided by the CI, the police obtained search warrants for the Liberty Village condominium and Hobeika's vehicle. Armed with the warrants, the police set up surveillance at the Liberty Village condominium, hoping to execute both warrants when Hobeika was in the condominium. He did not appear and the police obtained an extension of the warrants to September 15, 2013.
13On September 15, 2013, the police again set up surveillance at the Liberty Village condominium. The police had information the vehicle owned by Hobeika was registered to a unit in the Etobicoke condominium. Officers were sent to that location to try to locate Hobeika's vehicle. They found the vehicle in the parking lot of the Etobicoke condominium at about 8:23 p.m.
14One of the officers checked the directory inside the front door of the Etobicoke condominium building and learned Hobeika was listed as the occupant of one of the units. The officer in charge of the investigation, who had considerable experience in drug investigations, concluded Hobeika may be operating his drug business out of both the Liberty Village condominium and the Etobicoke condominium. At about 8:30 p.m., he advised the officer, who had prepared the affidavit ("ITO") on the application for search warrants on the Liberty Village condominium and Hobeika's vehicle, to prepare an ITO requesting a warrant on the Etobicoke condominium.
15The police continued to gather more information as they waited outside of the Etobicoke condominium. The police received information that a person, who lived in the Etobicoke condominium building, had been charged with drug trafficking in 2011. That person had been released on bail with Hobeika as his surety. Under the terms of the bail order, this person was obliged to live in Hobeika's unit. The police passed this information on to the officer preparing the ITO.
16Additional officers arrived outside of the Etobicoke condominium. The officer in charge decided that, if Hobeika left the condominium and went to his car, the police would stop the vehicle and execute the search warrant for the car.
17At 9:45 p.m., Hobeika and another person were seen leaving the Etobicoke condominium and going to Hobeika's vehicle. When Hobeika entered the vehicle, the officer in charge ordered the vehicle blocked and instructed the officers to execute the search warrant for the vehicle. The officers who stopped the vehicle smelled marihuana in the car and saw, what appeared to be, a significant quantity of marihuana in the pocket of the front door. The officers also found drugs in the possession of the passenger in Hobeika's car. They arrested Hobeika on a charge of possession of marihuana and advised him of his right to counsel.
18The stopping of Hobeika's vehicle and his arrest occurred in plain view of the entrance to the Etobicoke condominium. The arrest was loud and public. Hobeika had a cellphone. At least three individuals exited the Etobicoke condominium while the stop and arrest were taking place. They were seen using their cellphones. One person immediately went back into the building.
19Although the police had not yet obtained a warrant for Hobeika's condominium unit, the officer in charge decided the police would enter the condominium building, proceed to Hobeika's unit and make a warrantless entry. He was satisfied the police had reasonable grounds to believe there was evidence of narcotics trafficking in Hobeika's unit and there was a real risk evidence would be destroyed if he did not act immediately to enter the condominium and Hobeika's unit.
20Three officers entered the common area of the condominium building using the key fob seized from Hobeika when he was arrested. They made their way to the condominium unit occupied by Hobeika. They could hear someone inside. The officer in charge knocked on the door to the unit and identified himself as a police officer, falsely indicating he was there to perform a bail compliance check. The officer heard steps in the unit moving away from the door. The officers broke the door open with a battering ram and entered the unit.
21The three officers entered the unit and spread out, conducting a quick visual examination of the premises to locate any persons who were present in the unit. During the "clearing" of the unit for safety purposes, one of the officers saw, what appeared to be, chunks of cocaine powder and a number of Ziplock baggies.
22The appellant, Sanchez, was sitting at a table beside a jar containing what appeared to be psilocybin. The police arrested Sanchez and advised him of his right to counsel. They "froze" the scene to await the arrival of the search warrant. The officer in charge advised the officer preparing the ITO of the observations made in the condominium unit. The officer put that information in the ITO.
23The police obtained a warrant for Hobeika's unit in the Etobicoke condominium and executed that warrant shortly after midnight. The search revealed a substantial quantity of various narcotics, in addition to those seen by the officers who had entered the condominium. The police also found cash in the condominium.
24While the police were executing the warrant on the Etobicoke condominium, another group of officers executed the warrant on the Liberty Village condominium. They located substantial quantities of narcotics and a large amount of cash.
25The police subsequently obtained additional search warrants and production orders. I do not propose to detail either the obtaining or execution of those warrants and orders. The police recovered large amounts of cash and two bank drafts, all of which the Crown alleged were the proceeds of Hobeika's drug trafficking operation.
(i) Did the search of the Liberty Village Condominium and Hobeika's Vehicle Violate Section 8 of the Charter?
26In his factum, counsel for Hobeika submitted the information attributed to the CI did not provide grounds upon which a justice, acting judicially, could issue search warrants for the Liberty Village condominium and Hobeika's vehicle. Counsel did not make this argument in oral submissions.
27The warrants for the searches of the Liberty Village condominium and Hobeika's vehicle were issued based on information provided by the CI. The trial judge examined that information through the lens of the controlling case law, most notably R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140; see also R. v. Herta, 2018 ONCA 927, at paras. 20-21: Charter Reasons, at paras. 45-73. He concluded that information provided a basis upon which the justice could issue the warrant. I see no error in his analysis and no value in repeating it here. The trial judge correctly held the CI's information provided a basis upon which the warrants could issue.
28Counsel made a second attack on the warrant issued for the Liberty Village condominium. He submitted, even if the ITO provided a basis for the issuance of the warrant, by the time the police went to execute the warrant, they had good reason to believe Hobeika resided in the Etobicoke condominium and not in the Liberty Village condominium, as the CI had indicated. Counsel contends this additional information should have led the police to conduct further investigations before executing the warrant on the Liberty Village condominium. Counsel argues the decision to execute the warrant in the face of uncertainty as to Hobeika's place of residence made the search of the Liberty Village condominium unreasonable.
29The police knew when they obtained the warrant for the Liberty Village condominium, Hobeika had some connection to the Etobicoke condominium. They were aware his car registration showed the Etobicoke condominium as his residence. The police included that information in the ITO used to obtain the warrant for the Liberty Village condominium. The police also had direct information from the CI that Hobeika resided at the Liberty Village condominium and sold drugs out of that location. The CI did not connect Hobeika to the Etobicoke condominium.
30By the time the police executed the Liberty Village condominium warrant, they had much more information connecting Hobeika to the Etobicoke condominium and additional information indicating Hobeika was a drug dealer. None of that information, however, contradicted the CI's information relating to the Liberty Village condominium. If anything, the additional information buttressed the CI's credibility by providing further evidence Hobeika was a drug dealer. Simply because Hobeika sold drugs out of one condominium in which he resided did not mean he did not conduct the same business out of another condominium in which he also resided. Drugs can be readily stored and moved from one place to another. Nor is it unusual for a commercial dealer to have more than one retail outlet: see R. v. Nguyen, 2015 ONCA 753, at para. 34.
31The evidence gathered by the police indicating Hobeika was residing at and trafficking out of the Etobicoke condominium did not contradict the evidence the police had connecting him to drug trafficking activity in the Liberty Village condominium. The additional information gained by the police in respect of the Etobicoke condominium was no reason to delay executing the warrant for the Liberty Village condominium.
32The search warrant for the Liberty Village condominium was lawful and the search was conducted in a reasonable manner. There was no s. 8 breach. I do not understand counsel to make any separate arguments about the warrant for the search of Hobeika's vehicle. That search was lawful and did not violate Hobeika's s. 8 rights.
(ii) The search of the Etobicoke condominium
33As described above, the police entered the Etobicoke condominium building and Hobeika's unit without a warrant. They performed a safety sweep and secured the premises to await the warrant. When the warrant arrived, the police conducted a full search.
34The Crown acknowledges that warrantless searches are prima facie, unreasonable and unconstitutional: see R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at 278. The Crown submits, however, the entry and "safety" search, although warrantless, was authorized under s. 11(7) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, as amended, ("CDSA"). That section provides:
A police officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist, but by reasons of exigent circumstances it would be impracticable to obtain one.
35The constitutionality of s. 11(7) is not challenged. A search is authorized under that provision if two prerequisites exist. First, "the conditions for obtaining a warrant" must exist at the time the warrantless entry and search are conducted. Second, it must be impracticable to obtain a warrant "by reasons of exigent circumstances": R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, at 243; R. v. Paterson, 2017 SCC 15, at paras. 32-37; R. v. Phoummasak, 2016 ONCA 46, at para. 12; see also: R. v. Kelsy, 2011 ONCA 605, at paras. 25-27.
36The first requirement, sometimes referred to as the probable cause requirement, is determined by asking whether the police had adequate grounds to obtain a warrant to search the location they entered without a warrant. That assessment is made based on the facts the police knew or reasonably should have known when the entry was made: see R. v. Cornell, 2010 SCC 31, at paras. 20, 23; see also R. v. Lichtenwald, 2020 SKCA 70, at paras. 37-45.
37The police made two entries, first into the common area of condominium, and second, into Hobeika's unit. In the circumstances of this case, it would be artificial, for the purposes of determining whether the police had probable cause, to draw a distinction between the common area of the Etobicoke condominium and Hobeika's unit. The officer in charge had decided to enter the common area for the purpose of proceeding directly to Hobeika's unit, where a warrantless entry would be effected. I think the trial judge correctly concluded the police could only rely on s. 11(7) of the CDSA if they had probable cause to enter Hobeika's unit when they entered the common area of the condominium on their way to Hobeika's unit: Charter Reasons, at para. 107. The police could not rely on information gained when standing outside of Hobeika's door to justify the warrantless entry.
38The trial judge reviewed the relevant evidence at length: Charter Reasons, at paras. 89-106. The evidence relied on by the trial judge included:
information from a reliable CI identifying Hobeika as a full-time, busy and mobile drug dealer, who always had product readily available;
evidence connecting Hobeika to the Etobicoke condominium. This included his designation as the occupant in the building registry, his licence and car ownership, showing the Etobicoke condominium as his residence, his possession of the key fob for the front entry to the condominium, and his vehicle having been parked in the parking lot beside the condominium;
evidence that when Hobeika was arrested immediately after leaving the Etobicoke condominium, he was in possession of drugs. More drugs were found in the car, and in the possession of the passenger. It could safely be inferred Hobeika and his passenger had just left Hobeika's unit; and
a third party, who also lived in the Etobicoke condominium building, had been charged with drug trafficking about two years earlier. Under the terms of his bail, he was required to live in Hobeika's unit.
39The appellants submit the information provided by the CI had no relevance to the existence of reasonable grounds to enter the Etobicoke condominium because the information provided by the CI did not connect Hobeika's drug trafficking activity to the Etobicoke condominium. The appellants would have a valid point if the information from the CI was the only information available to the police. However, the CI's information was part of a broader picture. The information from the CI, combined with the information connecting Hobeika to the Etobicoke condominium, and the evidence linking persons, including Hobeika, who lived in, or had just left the Etobicoke condominium, to drug possession and trafficking, provided ample grounds for the formation of a reasonable belief that evidence of drug trafficking would be found in the Etobicoke condominium.
40The trial judge did not err in holding the probable cause component of s. 11(7) was satisfied when the police entered the Etobicoke condominium and Hobeika's unit in the condominium without a warrant.
41The appellants also challenge the trial judge's finding on the urgency component of s. 11(7) of the CDSA. They contend the police failed to show the requisite urgent circumstances justifying the warrantless entry of the condominium and the subsequent entry and search of Hobeika's unit. In addition, the appellants argue whatever urgency existed was created by tactical decisions made by the police and cannot be relied on by the police to make out the urgency required to justify a warrantless entry, based on exigent circumstances.
42The meaning of exigent circumstances, for the purposes of s. 11(7), was explained in Patterson, at paras. 36-37:
So understood, then, "impracticable" within the meaning of s. 11(7) contemplates that the exigent nature of the circumstances are such that taking time to obtain a warrant would seriously undermine the objective of police action - whether it be preserving evidence, officer safety or public safety.
In sum, I conclude that, in order for a warrantless entry to satisfy s. 11(7), the Crown must show that the entry was compelled by urgency, calling for immediate police action to preserve evidence, officer safety or public safety. Further, this urgency must be shown to have been such that taking the time to obtain a warrant would pose serious risk to those imperatives.
43The urgency component of s. 11(7), as described in Patterson, was made out if, when the officer in charge decided to enter the building, proceed to Hobeika's unit and make a warrantless entry, he reasonably believed the circumstances called for immediate action to preserve evidence in Hobeika's unit, and reasonably believed waiting for a warrant would put the preservation of that evidence at serious risk. The second belief will often follow from the first: see Patterson, at para. 37; Kelsy, at paras. 26-30; Phoummasak, at para. 12.
44The trial judge found the location and nature of the stopping of Hobeika's vehicle and his arrest made it reasonably probable Hobeika's arrest could quickly come to the attention of a person or persons in Hobeika's condominium unit, or with quick access to his unit. Those persons could destroy evidence in the unit before the police could obtain and execute a search warrant: Charter Reasons, at paras. 111-16.
45The appellants challenge this conclusion, arguing there was no evidence the police "knew" someone was in Hobeika's unit or had immediate access to it. Section 11(7) of the CDSA did not require that the police have actual knowledge someone was in, or could readily access the unit. Instead, it required the police have reasonable grounds to believe there was an imminent risk that evidence in the unit would be destroyed before the police could obtain and execute a warrant. The evidence accepted by the trial judge included evidence a person released on bail for drug trafficking was required to live in Hobeika's unit as a term of his bail. While it is true the bail order was about two years old, the officers had no reason to believe it was not still in effect. That evidence provided a basis for the trial judge's finding of an imminent risk that evidence in the unit could be destroyed. This court must show "substantial deference" to that factual finding: Cornell, at para. 25.
46In support of his argument that the police had no basis to believe anyone might be in Hobeika's unit, counsel for Sanchez submits the police were not entitled to rely on the voices they heard coming from Hobeika's unit when they were standing in the hall outside of that unit. Counsel submits the unlawful presence of the police in the common area outside of Hobeika's unit infringed Hobeika's reasonable expectation of privacy. Consequently, argues counsel, the police cannot rely on any information obtained while they were in the hall to justify the warrantless entry into the unit.
47This argument assumes the urgency requirement under s. 11(7) of the CDSA was not satisfied when the police decided to enter the Etobicoke condominium, proceed to Hobeika's unit, and enter the unit. The trial judge found to the contrary. He concluded the requisite urgency was established before the police entered the building: Charter Reasons, at para. 122. Consequently, he did not have to decide whether the police could rely on the additional information gained at Hobeika's door.
48I will assume the appellant is correct in arguing the police could not rely on what they heard through Hobeika's door. On the trial judge's findings, which I accept, the requisite urgency existed when the police entered the building. The voices at the doorway served to confirm the urgency and also provided justification for the forced entry into the unit.
49The appellants next argue the existence of what would otherwise amount to exigent circumstances will not justify a warrantless entry if those circumstances were the consequences of a pre-planned police operation. I agree. The police cannot circumvent the warrant requirement by devising and implementing a strategy which creates an imminent danger evidence will be destroyed, and then rely on that imminent danger as justification for acting without a warrant. If the police strategy creates the supposed urgency, the circumstances are not "exigent", but are anticipated, if not planned for, by the police: R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, per LaForest J. in dissent, at paras. 49-53, 84-86; Phoummasak, at paras. 15-18.
50The appellants submit the decision to execute the search warrant on the vehicle and arrest Hobeika in plain view of the entrance to the Etobicoke condominium created the risk that evidence of drug trafficking in Hobeika's unit could be destroyed before the police could execute a warrant. This was the very risk the police relied on to act without a warrant. The appellants argue the police had readily available operational alternatives that would have avoided stopping and arresting Hobeika in front of the Etobicoke condominium. For example, the appellants submit the police could have allowed Hobeika to drive out of sight of the Etobicoke condominium before stopping the vehicle, executing the warrant on the vehicle, and eventually arresting Hobeika.
51The trial judge considered and rejected this argument: Charter Reasons, at paras. 125-32. On the evidence accepted by the trial judge, the police had no intention of searching Hobeika's vehicle in front of the Etobicoke condominium until Hobeika left his unit and entered the vehicle. Up to that point, the police had maintained surveillance, waiting for the anticipated warrant for Hobeika's unit. Just as with the Liberty Village condominium, the police wanted to execute the warrant on the Etobicoke condominium while Hobeika was in the unit.
52The officer in charge changed the plan when Hobeika left the Etobicoke condominium and headed for his car. He was cross-examined about his decision to execute the warrant on Hobeika's vehicle before it left the Etobicoke condominium parking lot. The officer in charge explained why, in his opinion, the other options suggested by defence counsel were not safe or feasible. The trial judge declined to second-guess what he viewed as a reasonable operational decision made by the officer in charge. In doing so, the trial judge followed the direction of the Supreme Court of Canada in Cornell, at paras. 24, 36.
53The appellants' submission the police effectively created the urgency relied on to act without a warrant rests on two propositions. First, the appellants equate the existence of a causal link between the circumstances said to create the need to act without a warrant and a police operational decision, with a finding the police effectively created the urgency. Second, the appellants contend the existence of reasonable alternative operational decisions must mean the police created the urgency flowing from the decision they did make.
54I find neither argument persuasive. A causative link between the circumstances creating the urgency relied on to act without a warrant and a police action is a step towards showing the police created the urgency. In many cases, however, it will be a small step. Often, police action will result in the urgency relied on to act without a warrant. The question is not whether there is some causative link between police action and the urgency, but rather whether that police action reflects a pre-existing plan, which included the creation of the circumstances said to justify acting without a warrant.
55Evidence the police could have proceeded in a different manner may also have evidentiary value when assessing whether the alleged exigent circumstances were created by the police. The availability of a different strategy does not, however, mean that the police created the alleged urgency. The question is not could the police reasonably have done something else, but whether the police operational plan would, in its implementation, create the very circumstances said to justify acting without a warrant.
56On the evidence accepted by the trial judge, the police did not engage in a pre-planned operation that would create circumstances in which the police could act without a warrant. This police operation took a turn on the evening of September 15. Until then, the police intended to execute a warrant at the Liberty Village condominium when the appellant was there. On the evening of September 15, the focus shifted to the Etobicoke condominium, after the police had good reason to believe Hobeika was in that unit. The plan, however, remained fundamentally the same. The police intended to obtain a search warrant and execute the warrant while Hobeika was in the condominium.
57The plan, however, changed again when Hobeika left the condominium before the warrant was obtained. The police reacted to this turn of events by choosing to execute the warrant on the vehicle, detain and subsequently arrest Hobeika. Unlike the police operation described in Silveira, by LaForest J., at para. 85, the police did not choose to structure their operation so as to arrest Hobeika outside of the Etobicoke condominium. The detention of Hobeika's vehicle and his arrest cannot fairly be described as "planned in advance . . . in a planned and calculated procedure": Silveira, at para. 85.
58The police were actively involved in obtaining a warrant when Hobeika left the Etobicoke condominium. From the police perspective, their strategy changed in reaction to a new situation, albeit one the officer in charge had contemplated as a possibility while awaiting the warrant. The change in circumstances, and not any pre-existing police plan, generated the exigent circumstances relied on for the warrantless entry.
59I see no error in the trial judge's analysis. Section 11(7) of the CDSA authorized the warrantless entry.
(iii) The validity of the warrant executed at the Etobicoke condominium
60The police obtained a warrant for the Etobicoke condominium. They executed that warrant about two hours after the police had entered Hobeika's unit and secured the premises.
61The ITO relied on to obtain the warrant for the Etobicoke condominium included information about what the police heard at the door to Hobeika's unit, and what the police saw when they entered his unit without a warrant. Counsel submit, without that information, the warrant could not have issued, rendering the search of the Etobicoke condominium unit unreasonable.
62This argument depends on a finding the police acted unlawfully in entering the building and Hobeika's condominium unit without a warrant. For the reasons outlined above, I am satisfied s. 11(7) of the CDSA authorized the entry into the building, the entry into Hobeika's unit, and a brief safety search of that unit. None of the information in the ITO was constitutionally tainted and it was all properly considered on the application for the warrant.
63Counsel for Sanchez also argued the trial judge erred in refusing to allow the cross-examination of the affiant of the ITO used to obtain the warrant for the Etobicoke condominium. Counsel's argument is a novel one. He contends he should have been allowed to ask the affiant whether he believed he would have had reasonable grounds to obtain the warrant if the information about what the police heard at Hobeika's door, and what they saw in the unit, was not available to him when he swore the ITO. Counsel indicated the affiant had testified at the preliminary inquiry he did not believe he had grounds for a warrant without that information.
64This argument falls away in the face of my conclusion the police acted lawfully in entering the Etobicoke condominium, proceeding to Hobeika's unit, and entering that unit. There is no justification for excluding any of the information contained in the ITO.
65In any event, I see no relevance to the proposed questioning. An affiant asserts his or her belief evidence will be located in a certain place and sets out the grounds for that belief. The affiant's belief the required grounds exist is fundamental to the integrity of the warrant granting process. An affiant who swears the ITO without that belief commits perjury. Furthermore, if the affiant does not actually believe the grounds in the ITO provide a basis for issuing the warrant, the warrant cannot lawfully issue, regardless of how strong the grounds may be for issuing a warrant.
66The integrity of the warrant granting process is not compromised by evidence the affiant would not have believed reasonable grounds existed if the facts were different than the affiant believed them to be. The affiant's belief about the adequacy of grounds for obtaining the warrant, based on facts other than those sworn to by the affiant in the ITO, is irrelevant to the validity of the warrant.
67Two things matter insofar as the validity of a warrant is concerned. Did the affiant believe the grounds set out by the affiant provided reasonable grounds to obtain the warrant, and, objectively viewed, could those grounds reasonably support the issuance of the warrant? In answering the second of those questions, the court may be required to excise parts of the information contained in the ITO if that information was obtained unlawfully.
@L04,08,00(iv) The validity of other searches and seizures
68Hobeika also argues the seizures made pursuant to warrants and production orders in the days and weeks following the searches of the condominium units breached his s. 8 rights. The warrants and production orders were based, in part, on evidence obtained in the search of the condominium units. Hobeika's challenge to the validity of these subsequent seizures depends on this court having accepted his arguments the search of either or both of the condominium units breached Hobeika's s. 8 rights. As set out above, I am satisfied the searches were lawful and consistent with the command of s. 8 of the Charter. The challenge to the subsequent seizures fails.
B. Hobeika's Section 10(b) Argument
69Hobeika was arrested at his vehicle at about 9:45 p.m. He was immediately advised of his right to counsel. By 10:08 p.m., the police were aware that Hobeika had exercised his right to counsel and identified the specific lawyer with whom he wished to speak. Hobeika was taken to the police station and arrived there at about 10:30 p.m. After being strip searched, he was placed in the cells.
70The officer in charge, who had been involved in executing the search warrants, arrived at the police station shortly before 3:00 a.m. He spoke with Hobeika. After doing so, he attempted to contact the named lawyer. When the officer in charge learned that lawyer was suspended from practice, he offered to contact duty counsel. Hobeika agreed and spoke with duty counsel shortly afterward.
71There was no evidence of any steps taken by the police to facilitate Hobeika's contact with counsel, whether the named lawyer, or any other lawyer, between his arrest shortly before 10:00 p.m. and his conversation with the officer in charge at about 3:00 a.m. The police witnesses offered no explanation for the failure to make any effort to put Hobeika in contact with counsel. Hobeika did not testify on the Charter voir dire, or at trial.
72The trial judge held there was no breach of s. 10(b). He said, at para. 143:
While there is some evidence of delay in facilitating the exercise by Mr. Hobeika of his right to counsel, the applicant has failed to lead sufficient evidence to persuade me that this delay was unreasonable in the circumstances.
73The Crown concedes the trial judge erred in so holding. That concession is fully supported by the case law. In R. v. Taylor, 2014 SCC 50, the accused, like Hobeika in this case, had been advised immediately of his right to counsel and had indicated he wished to speak to a lawyer. The police took the accused to the hospital, but did nothing to facilitate contact with counsel while he was there. Abella J., for a unanimous court, said, at para. 24:
The duty to inform a detained person of his or her right to counsel arises "immediately" upon arrest or detention [citations omitted] and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee's request to speak to counsel. The arresting officer is therefore 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. [Citation omitted.] Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.
[Emphasis added.]
74There is no evidence to support a finding that the delay in providing access to counsel was reasonable in the circumstances. Crown counsel on appeal does not try to argue otherwise. Hobeika's right to counsel under s. 10(b) was breached when he was held for over four hours before the police took steps to put him in touch with counsel.
C. Should the Section 10(b) Breach Result in the Exclusion of Any of the Evidence Under Section 24(2) of the Charter?
75The trial judge found no breach of Hobeika's rights under s. 10(b). He went on, however, to consider, whether assuming there was a breach, any of the evidence should be excluded. He concluded all of the evidence should be admitted: Charter Reasons, paras. 147-55. Given the trial judge's erroneous conclusion that the appellant, Hobeika, had the onus to demonstrate the police acted unreasonably in not facilitating his contact with counsel, I will conduct a de novo s. 24(2) analysis: R. v. Thompson, 2020 ONCA 464, at para. 73.
76Counsel for Hobeika submitted that once Hobeika demonstrated a breach of s. 10(b), he was entitled to a remedy under s. 24(2), meaning at least some part of the evidence against Hobeika should be excluded. I disagree. Section 24(2) does not create an automatic rule of exclusion applicable to evidence obtained in a manner that infringed a constitutional right. Instead, s. 24(2) requires the accused to establish "having regard to all the circumstances the admission of it [the evidence] in the proceeding would bring the administration of justice into disrepute": see R. v. Lenhardt, 2019 ONCA 416, at para. 11.
77Given the very broad reading favoured by the courts, of the phrase "obtained in a manner" in s. 24(2), the breach of Hobeika's s. 10(b) rights could trigger the exclusion of evidence obtained in the searches of the two condominium units and Hobeika's vehicle: see R. v. Pino, 2016 ONCA 389, at paras. 50-78; R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21; R. v. Rover, 2018 ONCA 745, at para. 35; R. v. Lichtenwald, at paras. 54-63. Any violation of Hobeika's s. 10(b) rights could not, however, constitutionally taint evidence obtained by the police through the execution of subsequent lawful warrants and production orders days or even weeks later: R. v. Boutros, 2018 ONCA 375, at paras. 24-26.
78The admissibility of evidence under s. 24(2) falls to be determined by the now well-known three-pronged line of inquiry laid down in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The focus of that inquiry is identified at para. 70 of Grant:
Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.
79Both the language of s. 24(2) and the analysis provided by Grant make it clear the s. 24(2) inquiry is specific to the circumstances of the individual case. In this case, there is little evidence about the circumstances surrounding the failure to facilitate contact with counsel. Hobeika did not testify. The evidence of the police officers reveals an unexplained failure for over four hours to comply with the constitutional command of s. 10(b). That failure in and of itself speaks to a significant s. 10(b) breach. There is, however, no evidence permitting any further finding. The officer who arrested Hobeika and advised him of his right to counsel indicated he told Hobeika to speak to an officer at the police station if he wanted to contact his lawyer. On cross-examination, that officer disagreed with the suggestion the police routinely withheld access to counsel while investigations were underway, and further denied any knowledge of instructions to the effect that Hobeika should not be allowed to access counsel. The officer's denials went unchallenged.
80There is also no evidence in this case of a police pattern of ignoring constitutional rights in the course of the investigation. To the contrary, although the investigation was somewhat complex and involved the execution of various search warrants and production orders, there was no evidence of any other constitutional breach.
81The failure to comply with s. 10(b) for over four hours reflects a troubling police indifference to Hobeika's s. 10(b) rights. There can be no suggestion of any good faith by the police. There can be no suggestion the police were operating in an area of constitutional uncertainty. There are no circumstances that might ameliorate, to some degree, the failure to comply with s. 10(b). This was a clear violation of a long-established and well-understood constitutional obligation.
82A serious breach of a long-established and well-understood constitutional right can lead to exclusion of evidence, even where the breach is not systemic in nature, or part of a pattern of police misconduct: R. v. Patterson, at para. 44; R. v. Lichtenwald, at para. 89; R. v. Thompson, at para. 94.
83Exclusion is not, however, automatic. Section 24(2) requires, in all cases, an approach which balances the competing relevant factors, with a view to maintaining the long-term repute of the administration of justice. The court must assess the seriousness of the police misconduct, the impact on the appellant's Charter-protected interest, and society's interest in an adjudication on the merits: Grant, at paras. 72-86.
84This court considered the application of the "Grant" factors in Rover, a case which is similar in many respects to this one. In Rover, the appellant was denied access to counsel for about six hours while the police obtained and executed a search warrant on his residence. As in the present case, the accused in Rover was not questioned by the police during this time period. Again, as in this case, there was no causal connection between the s. 10(b) breach in Rover, and the discovery of the evidence obtained through the execution of lawful warrants. Finally, the evidence sought to be excluded in Rover, like the evidence here, was reliable and essential to the proper adjudication on the merits of serious criminal charges.
85There is, however, one crucial difference between this case and Rover. In Rover, the police withheld access to counsel for several hours, pursuant to a police protocol which routinely denied access to counsel by arrested persons if search warrants were being obtained or executed in respect of the offence for which the person had been arrested. This court described the effect of that practice, at para. 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.
86The systemic nature of the s. 10(b) breach in Rover figured prominently in this court's finding that the evidence must be excluded. The court said, at para. 37:
The rationale for the exclusionary rule identified in Grant, as applied in these circumstances, requires a consideration of the long-term impact on the reputation of the administration of justice caused by the admission of evidence obtained in an investigation conducted under a police practice that inevitably and routinely denies detained persons their constitutional right to access counsel. The systemic nature of the violation plays a central role in assessing its long-term impact on the proper administration of justice.
[Emphasis added.]
87When addressing the seriousness of the police misconduct, the court observed, at para. 40:
Constitutional breaches that are a direct result of systemic or institutional police practices must render the police conduct more serious for the purposes of the s. 24(2) analysis. A police practice that is inconsistent with the demands of the Charter produces repeated and ongoing constitutional violations that must, in the long run, negatively impact on the due administration of justice. That is so even if many of the breaches are never exposed in a criminal court.
[Emphasis added.]
88On the evidence adduced at trial, the breach of Hobeika's s. 10(b) rights cannot be characterized as the product of an improper police protocol, or a systemic failure by the police involved in this investigation to meet their constitutional obligations. On the evidence, the breach was a situation-specific, isolated failure, albeit a serious one, by the officers who had custody of Hobeika during the relevant time period.
89In R. v. Harrison, 2009 SCC 34, at para 36, former Chief Justice McLachlin emphasizes the qualitative nature of the balancing process engaged under s. 24(2). The nature of the s. 24(2) inquiry means, in some cases, different judges will reasonably arrive at different conclusions with respect to admissibility. I think this case falls into that group.
90I come down on the side of admissibility. To exclude the evidence obtained in the searches of the condominiums and Hobeika's vehicle strikes me as using s. 24(2) more to punish the offending police officers than to vindicate the long-term repute of the criminal justice process. The appellant has not established the admission of the evidence obtained in the searches would, in all the circumstances, bring the administration of justice into disrepute.
III
The Sentence Appeals
(i) Hobeika's sentence appeal
91In his factum, counsel for Hobeika submitted the jail term, an effective sentence of 81/2 years, should be reduced and the forfeiture orders eliminated or varied downward. Counsel did not elaborate on any alleged errors said to justify appellate intervention.
92The trial judge gave careful reasons for sentence in which he systematically addressed the evidence, the applicable sentencing principles, and the application of those principles to this case: R. v. Hobeika, 2018 ONSC 1293. I see no error in the sentence imposed.
93The 81/2 year sentence imposed is consistent with sentences imposed in cases involving commercial drug dealers and substantial quantities of various drugs: see R. v. Oraha, 2014 ONCA 359. The trial judge's finding the $400,000 in cash and bank drafts was the proceeds of crime was supported by overwhelming evidence, as was his finding that the Etobicoke condominium owned by Hobeika was offence-related property, within the meaning of s. 18 of the CDSA. The trial judge's refusal to exercise his discretion and grant relief from forfeiture under s. 19.1 of the CDSA reveals no error: R. v. Hobeika, at paras. 70-87.
94I would dismiss Hobeika's sentence appeal.
(ii) Sanchez's sentence appeal
95At trial, the Crown sought a 6-year penitentiary sentence for Sanchez. Counsel for Sanchez argued that Sanchez should receive a reformatory sentence. The trial judge imposed a sentence of 41/2 years.
96On appeal, counsel again submits a sentence of less than two years should be imposed. Counsel now, however, argues Sanchez should receive a conditional sentence, rather than an actual term of imprisonment. This submission could not be made at trial, as the relevant provisions of the Criminal Code precluded a conditional sentence for the crimes Sanchez had committed: Criminal Code, s. 742.1(c), (e) (ii). Subsequent to Sanchez's trial, this court held those sections unconstitutional: R. v. Sharma, 2020 ONCA 478.
97In urging the court to impose a conditional sentence, counsel stresses Sanchez's relative youth, the absence of any criminal record, his strong family support, and his positive rehabilitative prospects. Counsel also relies on Sanchez's immigration status. Sanchez has been in Canada most of his life, but is not a Canadian citizen. If sentenced to a term of imprisonment beyond six months, Sanchez is subject to removal from Canada by the immigration authorities when his sentence is complete. Were this court to impose a conditional sentence, Sanchez would not be subject to a removal order.
98Sanchez's immigration status is properly taken into account on sentencing. It cannot, however, justify the imposition of a sentence that is not proportionate to the gravity of the offence, and does not adequately reflect the level of Sanchez's culpability: R. v. Pham, 2013 SCC 15, at paras. 13-19; R. v. Suter, 2018 SCC 34, at paras. 47, 56.
99Taking into account the quantity and variety of drugs seized from the Etobicoke condominium, and the high volume and lucrative nature of the drug operation in which Sanchez was involved, a sentence of less than two years would be disproportionate to the gravity of the offence and Sanchez's level of culpability. Sanchez was living in the Etobicoke condominium, which was clearly a hub of the drug trafficking operation. While Sanchez's role was clearly subordinate to that of Hobeika, he was no mere courier. When Hobeika left the unit, Sanchez was left in charge of a lot of very valuable product.
100The trial judge considered the various mitigating factors and balanced them against the aggravating factors. I see no basis upon which this court can intervene and vary the sentence.
IV
Conclusion
101I would dismiss the appeals.
Appeals dismissed.
