R. v. Khalfan, 2021 ONCJ 181

R. v. Khalfan, 2021 ONCJ 181

CITATION: R. v. Khalfan, 2021 ONCJ 181

DATE: March 24, 2021

INFORMATION No.: 20-588

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

HUSSEIN KHALFAN

RULING ON VOIR DIRE:

Application for an Order to Exclude Evidence Pursuant to s. 24(2) of the Charter of Rights and Freedoms

Before Justice R. Marion

Armando D’Alessandro..................................................................... for the Federal Crown Brian Dube.................................................................................. for the Accused, H. Khalfan

MARION J.:

1On February 28, 2020, at 9:30 p.m., Hussein Khalfan was a passenger in a motor vehicle owned and operated by Tiana Lewis. They were observed travelling southbound on Ouellette Avenue, in the City of Windsor, by police officers on routine patrol in a marked police vehicle equipped with roof lights and sirens. They pulled into a Circle-K convenience store. The vehicle came to a stop and Mr. Khalfan exited the vehicle and ran into the store while the vehicle was running. He was wearing black sweatpants and a black hoodie under a puffy jacket with front pockets. The officers could not see his face. Officers entered the parking lot and drove past the vehicle. They observed the plate to read “CJLL 582” and verification confirmed it belonged to Tiana Lewis, but revealed as “Status: Unattached”. The plate had an expiry date of October 29, 2019. Once stopped, the officers observed a validation sticker affixed to the licence plate that read “Sep. 20”. Minutes later, Mr. Khalfan exited the store and re-entered the front passenger seat. As the vehicle moved to exit the parking lot at the rear of the building, PC David Perreault activated the emergency roof lights to initiate a traffic stop. Ms. Lewis stopped her vehicle. Officer Perreault explained why he queried the plate as follows:

“It’s just the middle of the night, I just found the behaviour to be slightly suspicious. You know, someone just jumping out of the car, running in real quick, hood up. It’s, you know, not exactly the best area. It’s a kind of a high traffic area for crime. So, we run through these parking lots all the time querying plates looking for stolen vehicles, a misused plate. Sometimes an occasion of someone trying to evade the police through by ‑ through being identified through the licence plate.”

2PC Perreault exited and approached on the driver’s side while his partner, PC Casey Asschert, approached on the passenger’s side. Ms. Lewis immediately exited her vehicle warning the officers that she had an aggressive dog in the backseat. The officers halted their approach while she secured the dog to a nearby fence. PC Perreault asked Ms. Lewis to produce her driver’s licence, proof of insurance and ownership of the vehicle. She stated that she did not have insurance and although she had purchased the vehicle months before, she had not transferred the ownership of the vehicle. As the officer spoke to her, he could smell the odour of dried cannabis emanating from the interior of the vehicle.

3It was dark but with his flashlight, he observed 3 to 4 grams of cannabis in the centre console within the reach of both the passenger and the driver. Ms. Lewis was charged with a number of traffic and insurance violations and for “improper transportation of cannabis contrary to s. 12(1) of the Cannabis Control Act (hereinafter referred to as the “CCA”). The vehicle was searched and no other controlled substances were found in the vehicle. The vehicle was later towed from the scene.

4Mr. Khalfan is charged with 2 counts of breaching conditions of his Release Order on pending charges. That Order prohibited him from returning to Windsor and required him to remain in his residence in Toronto at all times. Mr. Khalfan acknowledges that the Release Order was in force and that he breached the conditions by being in Windsor on February 28, 2020. Once his identity was confirmed he was arrested for breaching the Order, read his rights to counsel and cautioned.

5The accused was transported to the Windsor Police Department. Upon arrival, he was observed attempting to move his hands around and trying to get into his front right jacket pocket. Officers conducted a secondary search, noticed a white powdery substance on the applicant’s hands and pants. When questioned, the applicant confirmed the substance was cocaine.

6A search of the accused in cells produced 21.4 grams of crack cocaine and 3 Percocet pills from his right jacket pocket together with $675.

7Mr. Khalfan is also charged with possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, and with possession of oxycodone, contrary to s. 4(1) of the Controlled Drugs and Substances Act. Mr. Khalfan acknowledges that he was in possession of 21.4 grams of ‘crack’ cocaine and three 5 mg pills of oxycodone. Mr. Khalfan does not acknowledge that he was in possession of cocaine, however, for the purpose of trafficking.

8Mr. Khalfan has brought an Application alleging a breach of ss. 8, 9, 10(a) and 10(b) of the Charter of Rights and Freedoms. They read as follows:

“Search or seizure

8. Everyone has the right to be secure against unreasonable search or seizure.”

“Detention or imprisonment

9. Everyone has the right not to be arbitrarily detained or imprisoned.”

“Arrest or detention

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right.”

9In the event of a finding of any breach of his Charter rights, the accused seeks an exclusion of all evidence obtained after the breaches occurred, pursuant to s. 24(2) of the Charter, which reads as follows:

“Enforcement of guaranteed rights and freedoms / Exclusion of evidence bringing administration of justice into disrepute.

24. (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

10The alleged breaches arise from the conduct of police officers prior to the accused’s arrest for breaching his Release Order.

11The relevant sections of the “CCA” are ss. 10(1), 12, 19 and 21.1. They read as follows:

Prohibitions on possession, etc., by persons under 19

Possession, consumption, purchase, distribution

10 (1) No person under 19 years of age shall possess, consume, attempt to purchase, purchase or distribute cannabis.

Transporting cannabis

12 (1) No person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat.

Exception

(2) Subsection (1) does not apply with respect to cannabis that,

(a) is in its original packaging and has not been opened; or

(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat. 2018, c. 12, Sched. 1, s. 12 (1).

Search of vehicle or boat

(3) A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (1) may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.

Application to cannabis for medical purposes

(4) This section applies to cannabis obtained for medical purposes in accordance with Part 14 of the Cannabis Regulations (Canada) or in accordance with a court order, except in such circumstances as may be prescribed. 2018, c. 12, Sched. 1, s. 12 (2).

Arrest without warrant

19 If a police officer finds a person apparently in contravention of this Act or apparently in contravention of a prescribed provision of the regulations and the person refuses to give his or her name and address or the police officer has reasonable grounds to believe that the name or address given is false, the police officer may arrest the person without warrant.

Obstruction

21.1 No person shall hinder, obstruct or interfere with, or attempt to hinder, obstruct or interfere with, a police officer or person designated for the purposes of section 21 who is acting under this Act.

12Once the officers discovered the cannabis in the vehicle, they became authorized to search the vehicle and any person found in it without a warrant, pursuant to s. 12(3) of the “CCA”.

The Defence Submissions

13The defence concedes that once the marijuana was found, the officers were justified to detain and search Mr. Khalfan. It is, however, argued that the detention should be brief and not extended beyond its purpose. In this case, the initial traffic stop evolved into an investigation under the “CCA” once the cannabis was discovered. As the investigation evolved, the focus shifted to identifying the accused. Mr. Dube phrased the argument as follows:

“The officer, I don’t know why, maybe because of how Khalfan looked, abused his powers of detention and search to carry out a much broader and more intrusive inquisition of Khalfan to try to determine who he was. And I think once information came about that he was from Toronto, that intensified that sort of persistence of the officer to find out who he was, which ultimately led to, at least according to Khalfan, the pulling up of his shirt to find these , which is absolutely unjustified.” [my emphasis]

14Mr. Khalfan is a person of colour. There was no allegation of racially motivated conduct by the officers and, in my opinion, no evidence to suggest it.

15Detention, it is argued, may have been justified initially, however, the “CCA” does not permit the officers to prolong it in order to identify the accused. The detention was also unreasonable as the officers immediately handcuffed Mr. Khalfan from behind and grilled him with questions to determine his identity for a duration of 40 minutes. One officer allegedly photographed Mr. Khalfan. The fact that Mr. Khalfan gave the officers a false name, although suspicious, does not justify prolonged detention.

16It is argued that the officers cannot rely on s. 19 of the “CCA” to justify obliging Mr. Khalfan to disclose his identity as he was not in contravention of the “CCA”.

17The defence submits that once the loosely stored marijuana was discovered, the accused could be detained for the purposes of the search authorized by s. 12(3) of the “CCA”. The accused’s Charter rights were breached because of the following:

1. Immediately on exiting the vehicle Mr. Khalfan was handcuffed from behind;
2. Mr. Khalfan was not compelled to identify himself. His detention was prolonged to permit a physical search, not a search through questioning for a purpose unrelated to that permitted under the “CCA”;
3. The officers did not advise Mr. Khalfan of the reason for his detention;
4. The officers conducted an unlawful search when they rolled up Mr. Khalfan’s sleeves and lifted up his shirt to reveal tattoos which led to establishing his identity; and
5. Mr. Khalfan was not provided his rights to counsel as required under s. 10(b) of the Charter.

18It is submitted that the police had an ulterior speculative criminal investigative purpose motivating the detention and attempted to justify it under the guise of a “CCA” investigation.

The Period of Detention Prior to Arrest

19The verbal exchange between Mr. Khalfan and PC Asschert is significant in determining if the accused was promptly informed of the reasons for his detention. PC Perreault was focussed on Ms. Lewis initially and did not overhear their initial exchange. Ms. Lewis did not testify. Unfortunately, PC Asschert’s notes were scant and his testimony was based on memory. His answers were often qualified with “I can’t recall”, “I believe” or “I don’t recall”.

20PC Perreault on the other hand had notes and a five page report to refresh his memory. As to how events unfolded during the period of detention, I prefer the evidence of PC Perreault except as it concerns how the accused’s tattoos were discovered. He was the senior officer in charge at the scene and in giving evidence was not relying only on his memory.

21As PC Asschert approached the front passenger side door, Mr. Khalfan rolled down his window and PC Perreault asked him to identify himself. Mr. Khalfan replied that this was a traffic stop and that he did not have to identify himself. Mr. Khalfan was advised that he would be detained until his identity was established. It is Mr. Khalfan’s evidence that he was told to exit the vehicle and immediately handcuffed from behind. I do not accept this evidence. Both officers testified that Mr. Khalfan was handcuffed after his arrest. In addition, I accept the officers’ testimony that Mr. Khalfan was not photographed. The officers were judicious in their stepped approach in this investigation.

22In my opinion the accused’s portrayal of the officers as aggressive is also inconsistent with the discretion exercised by them in their investigation.

23Once the cannabis was observed in the vehicle, Mr. Khalfan was asked to exit the vehicle. At this point, PC Perreault searched the vehicle. There are no details given with respect to the search of the vehicle and no allegation that the officers conducted an extensive search or exceeded their authority in that regard.

24The accused, shortly after being advised that he would be detained, volunteered that his name was Mohamed with a date of birth of January 3, 1996. He stated that he resided at 665 Kennedy Road in Toronto. He was asked if he had identification on him and replied that he did not. Mr. Khalfan admits that he gave false information because he did not want to be caught breaching his conditions. In cross-examination, the accused admits that in giving a false name he was intentionally obstructing the officers in their investigation.

25Mr. Khalfan also stated that once he revealed he was from Toronto, PC Asschert asked him where the guns were. The officer could not recall if that was said.

26There is no evidence as to the time which elapsed between Mr. Khalfan being asked for his name and when he provided false information but it appears to have occurred momentarily after he was asked to exit the vehicle and just before PC Perreault searched the vehicle.

27PC Perreault’s verification of local records, MTO or provincial inquiries yielded no information for “Mohamed”. At this point, the officers conducted a pat down search of the accused which yielded nothing. During the pat down search, PC Asschert put his hand in the accused’s jacket pocket and the accused told him to get his hand out of his pocket and the officer desisted.

28PC Perreault then asked Mr. Khalfan to provide the names of members of his family, his parents and siblings. He answered, “he didn’t know”. He was asked if he could give them a phone number so they could call someone and confirm his identity. He said he could not. The officers eventually queried him about tattoos and rolled up his sleeves but did not detect any.

29Mr. Khalfan acknowledged that when he was arrested several months earlier on pending charges in Windsor, the police photographed his tattoos. He claims that an Emergency Unit (EMU) vehicle stopped at the scene and one of the officers suggested to PC Perreault and PC Asschert that they should check him for tattoos. Nothing turns on this point but both officers deny EMU officers attended the scene. He said he tried to resist but the officers lifted up his shirt which disclosed the tattoo on his abdomen. The officers were inconsistent in their evidence in this regard. PC Perreault stated the accused volunteered that he had a tattoo on his abdomen and rolled up his shirt to reveal it. Both officers acknowledge that they rolled up his sleeves to reveal the tattoos on his forearms. The tattoo on his abdomen read: “Live life everyday like it’s your last”. Mr. Khalfan denies volunteering any information about tattoos or rolling up his shirt. PC Asschert in cross-examination acknowledged that PC Perreault or both officers rolled up his shirt, but he stated there was no resistance by the accused. I accept Mr. Khalfan’s evidence in this regard as it is unlikely that he was actively concealing his identity yet, wilfully showed the officers an identifying tattoo.

30When PC Perreault queried the tattoo, it returned a match for Hussein Khalfan. Local records also listed a tattoo on both arms – one on his right arm which read: “Can’t trust a soul”, and one on his left arm: “Loyalty is priceless”. The officers checked both arms for a second time and saw both of them. They were satisfied that the individual before them was the accused, born January 21, 1994. PC Perreault also discovered that the accused was in breach of two conditions of his Release Order. He arrested Mr. Khalfan for these offences and read him his rights to counsel and caution, which he said he understood. Mr. Khalfan had been detained at this point for approximately 40 minutes. At 10:29 p.m., the accused was transported to the Windsor Police station.

Analysis

31The evidence is clear that the accused was knowingly and intentionally detained.

32There is no issue that the officers were justified to conduct a traffic stop.

33Upon discovering the improperly packaged marijuana in the vehicle, the officers were justified to briefly detain Mr. Khalfan to conduct a search under s. 12 (3) of the “CCA”.

34Mr. Khalfan was merely an occupant in the vehicle. The marijuana was found in the vehicle owned and operated by Ms. Lewis. There was no evidence linking Mr. Khalfan to the marijuana. Mr. Khalfan at no point took ownership of the marijuana. The officers never asked him about it. He was within arm’s reach of the substance but that does not make him in possession of the cannabis. The cannabis was never seized. Ms. Lewis was the one charged under the “CCA” for the substance found improperly packaged in her vehicle.

35The officers recognized that they had the power to search Ms. Lewis and Mr. Khalfan but did not for reasons explained by PC Perreault:

“Q. Okay. When does this search – or does this search power kick in at any point with regards to you and your partner and Khalfan and Tina Lewis – Tiana Lewis?

A. We don’t conduct any – I mean, the way I think we looked at it at the time was that it’s a provincial offence, we’re not going to go through an intrusive search of someone’s person looking for more cannabis because that would be the object of the search, would be to find more evidence of the same offence. So, I mean, like I said, with the amount that we had there in the centre console, it was fairly small, under the legal limit, I didn’t think that a search of their persons for any more cannabis was relevant at the time.”

36There are issues arising as to the extent of the search permissible under s. 12(3) of the “CCA”. One of those issues is whether it empowers the police to compel someone to identify himself. PC Perreault believed he was exercising his authority as conferred to police officers under the “CCA” in asking the accused to identify himself. PC Asschert said he was requesting his name in the event that the accused was under 19 years of age. A second issue is as to the nature of the physical search an officer can conduct when acting pursuant to s. 12(3) of the “CCA”. I will discuss this issue as I consider the alleged breach of s. 8 of the Charter.

37There is very little case law interpreting the provisions of the “CCA”, but there is some assistance available as the “CCA” mirrors the Liquor Licence Act¹ (hereinafter referred to as the “LLA”).

38The wording of s. 48 of the “LLA” is practically identical to the wording of s. 19 of the “CCA” which provides for the arrest of a person without a warrant. Most of the case law indicates that the power to arrest a person for failure to identify themselves under the “LLA” is based upon a person found “apparently in contravention of the Act”.² It has been found that in the absence of a person being found apparently in contravention of the “LLA” that officers are not entitled to demand that a person provide their name and address nor are they entitled to arrest them for failing to do so.³

39In Paryniuk⁴, the obligation to identify is linked to the police requiring this information to issue a ticket or make a charging decision:

3. “The officer was under an obligation to attempt to determine the appellant’s identity. The appellant’s identity was in no way relevant to the charge to be laid against him. However, the officer was obligated to try and identify the appellant so that he would know what steps he could lawfully take in charging the appellant with a breach of the Liquor Licence Act. The officer could not arrest the appellant if the appellant properly identified himself (Liquor Licence Act, s. 48). A single straightforward question seems the most obvious and least intrusive way to attempt to obtain that information.”

40In the case at bar, the accused was not “in contravention of the Act” and did not need to identify himself. He was not found to be in possession of the cannabis in the car and unless the officers searched him and found cannabis in his possession, his age was irrelevant. He was not “in apparent contravention of the “CCA”.

41The power to search conferred to police officers pursuant to s. 12(3) of the “CCA” does not include compelling passengers in a motor vehicle, where cannabis is being transported in contravention of s. 12(1) of the “CCA”, to identify themselves unless they are “apparently in contravention of the Act”.

Obstructing Justice

42Once Mr. Khalfan gave a false name, the officers continued questioning of him to ascertain his identity.

43Obstructing justice under s. 139 of the Criminal Code is described as “…wilfully attempts in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding.” “Pervert” means to lead astray or turn away from the right course.

44Obstruction under s. 21.1 of the “CCA” is described as “hinder, obstruct or interfere with … a police officer … acting under the Act”.

45The investigation is an essential step to any judicial or quasi-judicial proceeding that may result in a prosecution. Wilful attempt to obstruct, pervert or defeat the course of justice includes the investigatory stage.⁵

46The expression “the course of justice” includes judicial proceeding existing or proposed but is not limited to such proceedings. The offence also includes attempts by a person to obstruct, pervert or defeat a prosecution which he contemplates may take place, even if no decision to prosecute has been made.⁶

The Law and Analysis: Section 9 Breach: Was Mr. Khalfan arbitrarily detained?

47The issue simply stated is were there reasonable grounds to detain Mr. Khalfan and was the extent of the detention justified in all the circumstances.

48Detention under s. 9 of the Charter refers to a suspension of an individual’s liberty interest by a significant or psychological restraint.⁷

49The onus is on the accused to establish that his detention was unlawful.⁸

50It has always been a fundamental tenet of the rule of law that police, in carrying out their general duties, have limited powers and are entitled to interfere with the liberty or property of the citizen only to the extent authorized by law. The common law duties of police have been described as the preservation of the peace, the prevention of crime and the protection of life and property.⁹

51There is no issue taken by the accused with respect to his detention arising from the traffic stop.

52The detention arising from the traffic stop was justified and not arbitrary. The traffic stop, however, quickly morphed into an investigative detention under the “CCA” once a contravention of s. 12(1) was discovered.¹⁰

53As soon as the officers approached the vehicle and detected the cannabis in the console, Mr. Khalfan was asked to identify himself. When he refused to identify himself, he was advised that he would be detained and asked to exit the vehicle. He then stood outside near the vehicle with Constable Asschert at his side while the vehicle was searched. If Mr. Khalfan had tried to escape, PC Asschert confirmed at trial that he would have given chase. The detention started when Mr. Khalfan was asked to exit the vehicle and advised that he would be detained until his identity was established.

54One of the officers remained near Mr. Khalfan at all times.

55Being advised that he would be detained until his identity was determined, Mr. Khalfan could have remained silent.

56Although police officers are allowed to ask questions and may have to do so as part of their duty if they suspect a person is involved in criminal activity, the person questioned does not have to respond to those questions in the absence of a statutory duty.¹¹ Mr. Khalfan was not compelled by statute to respond.

57If Mr. Khalfan ad remained silent, it would be difficult to conclude that any extended detention would have been reasonably necessary since he was under no legal obligation to comply. It would then have constituted a significant restriction of his liberty.

58Generally, a person cannot be convicted of obstruction of a police officer in the course of his duty simply by refusing to say or establish who he or she is when asked to do so.¹²

59There is a distinction between the absence of a legal obligation to respond to police questioning and the existence of a legal obligation to refrain from providing police with false information.¹³ This principle is aptly described in Rice v. Connolly as follows:

“It seems to me quite clear that though every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to that effect, and indeed the whole basis of the common law is that right of the individual to refuse to answer questions put to him by persons in authority, and a refusal to accompany those in authority to any particular place, short, of course, of arrest. Counsel for the respondent has pointed out that it is undoubtedly an obstruction, and has been so held, for a person questioned by the police to tell a “cock-and-bull” story, to put the police off by giving them false information, and I think he would say: well, what is the real distinction, it is very little away from giving false information to giving no information at all; if that does in face make it more difficult for the police to carry out their duties then there is a wilful obstruction. In my judgment there is all the difference in the world between deliberately telling a false story, something which on no view a citizen has a right to do, and preserving silence or refusing to answer, something which he has every right to do. [Emphasis added.]

60The accused was detained for a brief period of time before providing a false name, a false date of birth and a false address.

61Once Mr. Khalfan gave false information, the investigation was now focused on his identity.

62The common law investigative detention power was first applied by the Ontario Court of Appeal in Simpson¹⁴ (referred to as “the ancillary powers doctrine”) to provide police the power to briefly detain when officers have “articulable cause” to believe that the person is involved in criminal activity. The Supreme Court of Canada affirmed the doctrine in Mann.¹⁵ Subsequently, the Supreme Court made it clear that “the power is not restricted to crimes actually known but extends to crimes that are reasonably suspected.”¹⁶ The common law investigative detention power also flows from the police duties to preserve the peace, prevent crime and protect life and property.¹⁷

63In order to assess whether the threshold of reasonable suspicion has been met, an analysis must be made while considering the “totality of circumstances, including the specific characteristics of the suspect, the contextual factors and the offence suspected.¹⁸

64In the case at bar, the accused professed to live in Toronto but was in Windsor without possessing one piece of identification. He provided a false name, date of birth and address. He could not be found on any database available to the officers. He could not provide the phone number of anyone who could be called to confirm his identity. He could not provide the names of any members of his family, parents or siblings. He said, “he didn’t know”. He was a passenger in an uninsured vehicle with a status “unfit”. The vehicle was wrongly plated and had an incorrect validation sticker. The traffic stop occurred in a high crime area.

65Reasonably suspected must be based on both a subjective belief and objective indications.¹⁹

66Once the officers had discovered that Mr. Khalfan could provide no information to assist them in confirming his identity, they had reasonable suspicion to believe that Mr. Khalfan was obstructing them in the execution of their duty by giving false information, contrary to s. 21(1) of the “CCA” and s. 139 of the Criminal Code.

67It is arguable that the officers may have had at this point reasonable and probable grounds to arrest the accused for obstruction but nonetheless they chose to search him for tattoos and for identification. I will address this issue when I consider the alleged breaches under s. 8 of the Charter.

68In Greaves²⁰, an officer investigating an assault detained the accused for 40 minutes before arresting him. The accused gave two false names. In dismissing the accused’s appeal from conviction, the Court found the prolonged detention was justified stating as follows:

“Even if Cst. Winters’ reasonable grounds to detain the appellant in connection with the assault dissipated when he had the opportunity to confirm that the appellant did not closely match the broadcast description of the assault suspect, the appellant’s conduct immediately gave rise to a reasonable suspicion that he was obstructing Cst. Winters in the execution of his duty to investigate the assault. In my view, the existence of these further reasonable grounds to detain justified a more prolonged and intrusive detention than would have been the case had the appellant simply refused to answer the officer’s questions.”

69In the case at bar, the duration of the investigative detention was excessive, but it was as a direct result of the accused’s wilful attempt to mislead the police.

70Under the circumstances, I am satisfied that the detention of Mr. Khalfan was justified and not arbitrary or unreasonable. Mr. Khalfan’s Charter protected rights under s. 9 were not breached.

The Law and Analysis: Section 8 Breach

71The right to be secure against unreasonable search and seizure seeks to protect persons from unjustified government intrusions into their privacy.

72A warrantless search is reasonable within the meaning of section 8 of the Charter if it meets the following three conditions:

(1) the search is authorized by law; (2) the search is for a valid law enforcement purpose; and (3) the search is conducted in a reasonable manner.²¹

73The Supreme Court of Canada in Tessling²² identifies 3 areas where persons may hold expectations of privacy – bodily, territorial and informational. The latter is the ability of individuals to control when, how and to what extent their personal information is disclosed to others.

74These are two impugned searches:

1. The questioning of the accused to determine his identity; and
2. The lifting of the accused’s sleeves and shirt to reveal his tattoos.

75As a result of a stop under the provincial legislation regulating motor vehicle traffic, there is nothing improper about the incidental detention of passengers of a motor vehicle pursuant to a lawful detention of the driver and motor vehicle, however, there is no authority to compel passengers to provide identification or answer police questions. A request for identification is a search and seizure within the meaning of s. 8 of the Charter.²³

76The Supreme Court in Grant stated: “In the context of investigating an accident or crime, police, unbeknownst to them at that point in time, may find themselves asking questions of a person who is implicated in the occurrence and, consequently, is at risk of self-incrimination. This does not preclude the police from continuing to question the person in the pursuit of their investigation. Section 9 of the Charter does not require that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Nor does s. 10 require that the police advise everyone at the outset of any encounter that they have no obligation to speak to them and are entitled to legal counsel.”²⁴

77The Supreme Court made it clear in Mann ²⁵ that an investigative detention does not impose an obligation on the detained individual to answer questions by the police. The Court did not express if this applied to a simple request that a person identify themselves.

78In Greaves, however, the Court of Appeal in British Columbia in obiter suggested that there is no legal obligation on detainees to identify themselves to police.²⁶

79The officers initially did not perform any search of the accused and Mr. Khalfan was merely asked to identify himself.

80The officers were entitled to conduct a pat down search for officer safety reasons which they performed after failing to confirm that the accused was indeed “Mohamed” as he claimed. There was nothing unreasonable as to the timing of the pat down search or the manner in which it was conducted. It was performed in a manner consistent with its permitted purpose.

81The common law search power incidental to an investigation permits a pat down where it is reasonably necessary to ensure the safety of officers or others.²⁷

82The officers reasonably suspected that Mr. Khalfan was not being truthful and justifiably continued to question him. In my opinion, there is no breach of s. 8 by the questioning of Mr. Khalfan who was engaged in misleading the officers.

83The authority to search a vehicle or its passengers under s. 12(3) of the “CCA” “is circumscribed by that which is necessary for the carrying out of the specific regulatory purpose.”²⁸

84The limits to statutory power is explained in R. v. Orbanski.²⁹:

“The scope of justifiable police conduct will not always be defined by express wording found in a statue but, rather, according to the purpose of the police power in question and by the particular circumstances in which it is exercised. Hence, it is inevitable that common law principles will need to be invoked to determine the scope of permissible police action under any statute. In this context, it becomes particularly important to keep in mind that any enforcement scheme must allow sufficient flexibility to be effective. The police power to check for sobriety, as any other power, is not without its limits; it is circumscribed, in the words of the majority of this Court in Dedman by that which is “necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference” (p. 35). [Emphasis added.]

85In order to exercise this statutory search power, the police must have the requisite grounds and exercise their authority to search reasonably. The officers did not have any grounds to suspect that Mr. Khalfan was in contravention of the “CCA” or its regulations and, therefore, were not empowered to bodily search him any further.

86One or both of the officers lifted Mr. Khalfan’s shirt and sleeves to reveal the tattoos which led to the discovery of his identity, subsequent arrest and finding of the controlled substances.

87When the officer lifted the accused’s shirt and sleeves to search for tattoos, the search was intrusive and unreasonable. It was beyond the scope of a search as authorized by s. 12(3) of the “CCA” or permissible during an investigative detention.

88The officers at this point arguably, had reasonable and probable grounds to arrest the accused for obstruction which would have led to a more thorough search incidental to arrest, but they chose not to. Instead they conducted an intrusive search and breached the accused’s Charter protected rights under s. 8.

The Law and Analysis: s. 10(a) Breach

89The accused asserts that he was not advised promptly of the reasons for his arrest.

90The traffic stop quickly evolved into the discovery of cannabis in the vehicle near the driver and passenger. Mr. Khalfan was told by PC Asschert that he saw the cannabis in the car. Mr. Khalfan admitted that the officer could have seen the cannabis prior to asking him to identify himself but it evolved quickly into a detention arising from Mr. Khalfan providing false information to the officers. Mr. Khalfan was keenly aware as soon as he was detained that the reason for his continued detention was his identification.

91The officer did not, however, advise Mr. Khalfan promptly and clearly of the reasons for his detention under the “CCA”.

92There was a breach of Mr. Khalfan’s rights under s. 10(a) of the Charter.

93No evidence was led on the voir dire with respect to an infringement of s. 10(b) rights, nor were submissions made to address this issue.

94The accused was provided his rights to counsel at the time of his arrest but not upon being detained.

95A brief investigative detention likely would not engage s. 10(b) nor would a request for identification.³⁰

96The duration of the detention in this case, however, was protracted and the psychological restraint during that extended period of time would lead me to conclude that the officers violated the accused’s s. 10(b) Charter rights. There was ample opportunity to advise Mr. Khalfan of his rights to counsel.

Section 24(2) Analysis as to the Exclusion of Evidence

97The analysis as to exclusion of evidence is governed by the test set out in R. v. Grant³¹ as a consideration of these issues:

1. The seriousness of the Charter violation;
2. The impact on the accused’s rights; and
3. The long term effect of admitting or excluding the evidence on the reputation of the administration of justice.

The Seriousness of the Violation

98The detention under the “CCA” was of very short duration and Mr. Khalfan knew the reason for his detention.

99The violation of s. 10(a) is minor in that Mr. Khalfan was detained except for a short period of time due to his own conduct. Mr. Khalfan was keenly aware that his detention was prolonged in order to determine his identity.

100PC Perreault testified that he was not conducting a criminal investigation but rather an investigation of provincial offences. Although he was not questioned in this regard, the failure to inform the accused of his rights to counsel was largely inadvertent. The officer’s task was rendered more tedious by virtue of the accused’s conduct.

101The seriousness of the violation in this case of s. 10(b) is mitigated by the fact that the officer did not at any time have the objective of arresting Mr. Khalfan and was only performing his duty to identify the accused.

102PC Perreault never testified to the effect that he had reasonable grounds to arrest Mr. Khalfan for obstruction, only to the effect that he believed the accused was not being truthful. Even if the officer did not recognize the existence of reasonable and probable grounds or, if he did so, failed to act upon them and arrest the accused, the existence of objective grounds alone can mitigate the seriousness of the Charter violation. In Caslake, the officer’s search of the appellant’s vehicle was not considered too serious because the search would have been reasonable had the officer turned his mind to the power to conduct the search as incident to the appellant’s arrest.³²

103The violation of s. 8 is serious, however, diminished by the fact that the officer could have proceeded to an arrest for obstruction and then searched Mr. Khalfan.

104The impugned evidence would have been discovered had the officer proceeded with an arrest and search after arrest.

105Although there are multiple breaches, there is no evidence in this case of a pattern of conduct by the officers showing a disregard for the accused’s rights or bad faith.

The Impact on the Accused of Breaches

106There is in this case a temporal link between the breaches of s. 9, 10(a) and 10(b) of the Charter and the impugned evidence.

107All evidence obtained with respect to the offences charged was obtained after the Charter breaches.

108This factor militates in favour of exclusion.

The Effect on the Reputation of the Administration of Justice

109Except for the first minutes of his detention, the accused was actively attempting to mislead officers as to his identity. The conduct of an accused may be considered not to excuse but explain a Charter breach.³³ The breaches of Mr. Khalfan’s individual rights occurred in circumstances where he deliberately made the investigation difficult. The explanation serves to mitigate the adverse effect that the admitting of the impugned evidence may have on the reputation of the administration of justice.³⁴

110The charges before the court are serious. The Crown’s case rests entirely upon the admission of the impugned evidence. Society has a valid and keen interest in stemming the proliferation of toxic controlled substances. Society also has a vested interest in fostering respect for court orders designed to ensure the safety of its citizens. There is an expectation that adjudication of such matters should be on its merits. In my opinion, the admission of the evidence would not impair the reputation of the administration of justice as much as would its exclusion.

111The Application is therefore dismissed.

Footnotes

1. 1Liquor Licence Act, R.S.O. 1990, c. L. 19
2. 2R. v. Patterson (2006), W.C.B. (2d) 765 (Ont. S.C.)
3. 3R. v. Nahimana, 2004 ONCJ 265
4. 4R. v. Paryniuk, [1996] O.J. No. 4164 (C.A.)
5. 5R. v. Wijesinha, 1995 CanLII 67 (SCC), [1995] 3 S.C.R. 422; 100 C.C.C. (3d) 410
6. 6R. v. Zeck (1980), 1980 CanLII 2849 (ON CA), 53 C.C.C. (2d) 551 (Ont. C.A.)
7. 7R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 44; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 25 and 28
8. 8R. v. Amare, 2014 ONSC 4119, at 83, aff’d 2016 ONCA 673
9. 9R. v. Dedman, 1985 CanLII 41 (SCC), at paras. 14-16, 69-70; R. v. Mann, 2004 SCC 52, at para. 26
10. 10R. v. Burke, [2020] ONCJ 516
11. 11R. v. Moore, 1978 CanLII 160 (SCC), [1979] 1 S.C.R. (2d) 83, 43 CCC (2d) 83; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59
12. 12Rice v. Connolly, [1966] 2 All E.R. 649
13. 13R. v. Greaves, 2004 BCCA 484, [2005] 189 CCC (3d) 305 (Sask. C.A.) leave to appeal refused
14. 14R. v. Simpson, 1993 CanLII 3379 (ONCA)
15. 15R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59
16. 16R. v. Chehil, 2013 SCC 49, [2013] S.C.J. No. 49, at para. 35
17. 17R. v. Dedman, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2, at 32-34, 20 C.C.C. (3d) 97, at 119-120
18. 18R. v. Chehil, supra, at para. 27
19. 19R. v. Chehil, supra
20. 20R. v. Greaves, supra, at para. 52
21. 21R. v. Saeed, 2016 SCC 24, 2016 S.C.C. 24, at para. 36
22. 22R. v. Tessling, 2004 SCC 67, 2004 S.C.C. 67, at paras. 21-23
23. 23R. v. H.(S.) 2005 ONCJ 131, 2005, 130 C.R.R. (2d) 277; 2005 ONCJ 131
24. 24R. v. Grant, supra, at para 38
25. 25R. v. Mann, supra
26. 26R. v. Greaves, 2004 BCCA 484, [2005] 189 CCC (3d) 305 (Sask. C.A.) leave to appeal refused
27. 27R. v. Mann, supra, at para. 40
28. 28R. v. Stapleton, 2021 ONSC 430, at para. 58
29. 29R. v. Orbanski, 2005 SCC 37, 2005 CarswellMan 190 (S.C.C.), at para. 27
30. 30R. v. Harris, 2007 ONCA 574, at para. 47
31. 31R. v. Grant, supra
32. 32R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 34; R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at para. 288
33. 33R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435, at paras. 438-439
34. 34R. v. Tremblay, supra