ONTARIO COURT OF JUSTICE

DATE: 2024 08 24

COURT FILE No.: 23-48105030

Toronto Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

Abdul Malik KAMARA

Before: Justice C.G.C. Faria

Heard on: January 31, February 1, 2, 8, June 6, 25, July 16, 2024

Reasons for Judgment released on: August 20, 2024

Counsel: Scott O’Neill......................................................................................... counsel for the Crown Melina Macchia................................... counsel for the accused Abdul Malik KAMARA

FARIA J.:

I. Introduction

1Abdul Malik Kamara, on May 13, 2023, was in possession of a loaded Glock 27 semi-automatic firearm, whose serial number was defaced while he was on two separate weapons prohibition orders, contrary to s. 95(1), s. 108(1)(b) and s. 117.01(1) of the Criminal Code respectively.

2Counsel admitted identity, jurisdiction, and date on his behalf. It was also admitted that the firearm is a prohibited one. Mr. Kamara has no authorization, or licence to possess such a firearm. He is not the holder of a registration certificate for this firearm, and he is prohibited from possessing a firearm pursuant to two s. 109 orders.

3Mr. Kamara alleges violations of his ss. 7, 8, 9, 10(a), 10(b), 11(d), 12, and 15 Charter rights. The remedy he seeks for any one or more of these violations is the exclusion of evidence pursuant to s. 24(2) or, a stay of charges pursuant to s. 24(1) for the loss of evidence contrary to s. 7.

II. Factual Context

4The Crown called 4 officers, filed 2 Agreed Statements of Facts, 5 surveillance videos, and numerous photos.

5The Defence called no witnesses but filed several Google maps and several photos.

6On May 13, 2023, Detective Constable (DC) Jimmy Da Silva Cristopulo, a Toronto Police Service Officer in the Guns and Gangs Task Force, testified he was outside the Fairview Mall, in plain clothes, investigating an unrelated matter, when he went into the mall to buy a juice. He saw Mr. Kamara, who he knows. As Mr. Kamara walked by him, DC Da Silva saw a bulge in Mr. Kamara’s right front jeans pocket in the shape of a firearm, with a small portion of it protruding. He testified he recognized it to be a mini-Glock.

7DC Da Silva did a U-turn and followed Mr. Kamara out of the mall. He called his investigative team, told them what he saw, and the team proceeded to follow Mr. Kamara until his arrest at which time a loaded Glock 27 was seized from his front right-hand pocket. The next day DC Da Silva went to the mall to seize video surveillance capturing his interaction with Mr. Kamara.

8The two arresting officers, Detective (Det.) Robert Stolf and Detective Constable (DC) Akira Danson, testified as to the information they received from DC DaSilva, the surveillance they conducted of Mr. Kamara, the timing and manner of Mr. Kamara’s arrest and the delivery of his right to counsel.

9Police Constable (PC) Michael Kim testified to transporting Mr. Kamara and facilitating his right to counsel.

III. The Issues

10To be determined are the following:

i. Did DC Da Silva have reasonable and probable grounds to arrest Mr. Kamara?

ii. Even if DC Da Silva did have reasonable and probable grounds to arrest Mr. Kamara, were those grounds infected by racial profiling contrary to s. 7 and 15 of the Charter, thus, also violating Mr. Kamara’s s. 9 right against arbitrary detention and his s. 8 right to be free from an unreasonable search and seizure?

iii. Does the video surveillance of one angle of the interaction between DC DaSilva and Mr. Kamara, not seized by DC Da Silva, constitute a s. 7 and s. 11(d) violation of lost evidence and warrant a stay of the charges?

iv. Was Mr. Kamara’s right to be informed why he was arrested pursuant to s. 10(a) and, or his right to counsel without delay pursuant to s. 10(b) violated?

v. If any one or more of Mr. Kamara’s Charter rights were violated, should DC DaSilva’s observations and the seized firearm be excluded evidence pursuant to s.24(2) of the Charter?

IV. Position of the Parties

Defence

11During oral argument, the Defence abandoned its s. 7 and 12 allegations of excessive force. Materials filed alleged DC DaSilva physically struck Mr. Kamara during his arrest. DC DaSilva was not involved in the arrest of Mr. Kamara at all. Video of the entire arrest showed neither Det. Stolf nor DC Danson ever struck Mr. Kamara during the approximate 7 minutes it took to get him properly handcuffed.

12But for the allegation of his s. 10(a) and 10(b) rights, upon which the Defence relies on its written application, the entirety of the Defence position rests on the submission that DC DaSilva is not a credible and reliable witness.

13Defence is alleging:

• DC DaSilva had no reasonable and probable grounds to investigate Mr. Kamara.
• DC DaSilva did not see a firearm protruding from Mr. Kamara’s right front pocket. He fabricated this observation to investigate of Mr. Kamara, a Black man, thereby racially profiling Mr. Kamara violating his ss. 7, and 15 Charter rights and as a result, arbitrarily detaining him contrary to his s. 9 right and unreasonably searching him contrary to his s. 8 right.
• When DC DaSilva did not seize one angle of video surveillance of his interaction with Mr. Kamara, this lost evidence violated his ss. 7 and 11(d) rights [1]
• Mr. Kamara was not informed of the reason for his arrest and was not provided his rights to counsel without delay in violation of his ss. 10(a) and 10(b) Charter rights.

Crown

14The Crown submits DC DaSilva is both credible and reliable. He had reasonable and probable grounds to investigate Mr. Kamara, and that none of Mr. Kamara’s rights were violated, none of the evidence should be excluded, none of the charges should be stayed, and that the case has been proven beyond a reasonable doubt.

15The Crown submits there was no racial profiling as he knew Mr. Kamara and did not target him based on race. In addition, the arresting officers fulfilled Mr. Kamara’s rights to counsel without delay.

16In the alternative, if the court does find any one or more violations, the Crown submits the evidence should not be excluded pursuant to the three-pronged Supreme Court of Canada’s analysis in R. v. Grant, 2009 SCC 32.

17Regarding the lost evidence allegation, the Crown submits the police were not unacceptably negligent, there was no abuse of process, and the unseized video did not violate Mr. Kamara’s right to a fair trial that a stay of the proceedings is warranted.

V. General Legal Principles and Charter Rights

18As in every criminal case, Mr. Kamara is presumed innocent. The onus rests on the Crown to prove the essential elements of each offence beyond a reasonable doubt. That onus never shifts. Reasonable doubt is a doubt based on reason and common sense taken from the evidence or lack of evidence, R. v. Lifchus, [1997] 3 S.C.R. 320.

19When I consider what evidence to accept, I am considering the credibility and reliability of a witness. Credibility relates to whether a witness is speaking the truth. Reliability relates to the actual accuracy of the testimony. The credibility and reliability of a witness must be “tested in the light of all the other evidence presented”, R. v. Stewart, [1994] O.J. No. 811 (C.A.) at para. 27.

20The court is to “grapple with the difficulties presented by the evidence of a witness; determine the impact, if any, of those difficulties on the credibility and reliability of the witness; and explain the reasons for that determination”, R. v. Kruk, 2024 SCC 7 at paras. 81-82.

21Although the Defence alleges fabrication, the accused is not required to demonstrate a motive to fabricate evidence. Nor does the absence of a motive to fabricate conclusively establish that a witness is telling the truth. “The presence or absence of a motive to fabricate evidence is only one factor to be considered is assessing credibility”, R. v. Batte at para. 121.

22When a Charter violation is alleged, the onus is on the applicant to demonstrate a violation on a balance of probabilities.

23The Charter rights at issue are:

7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

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

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

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;

11(d) Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability

24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

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.

VI. Evidence and Analysis

24I will summarize the legal principles, the evidence, the challenges to the evidence and my findings in relation to each issue.

A. Did DC DaSilva have reasonable and probable grounds to arrest Mr. Kamara?

i. Summary of Evidence

25DC DaSilva testified that at 5:21 p.m. on Saturday, May 13, 2023, he was at the Fairview Mall in plain clothes investigating an unrelated matter when he decided to go into the mall to buy a drink. He was in his car in the south parking lot and drove to the north parking lot closer to the Freshly Squeezed where he usually gets a drink.

26He entered through the middle doors and walked south between the Shoppers Drug Mart and the Cineplex. He saw Mr. Kamara, who he knows by both his full name and his nickname, walking towards him. Mr. Kamara was holding two drinks in his left hand and a cell phone in his right hand.

27DC DaSilva testified he thought nothing of it, until Mr. Kamara walked closer, and as he strode within an arm’s length past him, he saw a bulge in Mr. Kamara’s right front pocket which he described as “the outline of a firearm”.

28He thought it was:

“a mini-gun, or a mini-Glock pistol and it was in his pocket. The way that it was situated was the barrel was facing down towards his left, the slide was coming up, so straight going on the inside, and then the receiver, or the handle for everyone, was coming towards the outside, but sort of angled in the pocket. So, it wasn’t really truly straight down. So, it wasn’t the slide wasn’t straight down his pocket. It was so not angled more or less.”

29As Mr. Kamara got closer to DC DaSilva, DC DaSilva testified he could:

“see that the top end of the receiver and like, the mag area was sort of protruding out of the pocket and I got within maybe just a little bit longer than an arm’s length. There was a male and there is a female that sort, walked in between us as I was sort, he was walking north along eh west wall…”

30He recognized “the top portion of the receiver and the mag well of the specific Glock design.”

31He testified he continued about five steps, then turned and followed Mr. Kamara out of the mall into the parking lot.

32He did not expect to see Mr. Kamara at the mall. He knew him from positive community related basketball interactions in the past when he worked in 54 Division and in the Vendome, Flemington area and had spoken to him at the time. More recently, DC DaSilva had investigative knowledge of Mr. Kamara and had seen multiple photos, videos and social media involving Mr. Kamara.

33It was not disputed DC DaSilva knows Mr. Kamara.

34A video of this interaction was filed in evidence [2]. It captures what DC DaSilva said happened. DC DaSilva walking into the mall and Mr. Kamara walking by DC DaSilva and out the door. DC DaSilva immediately turning around after Mr. Kamara walks by him and following him out.

35Though Mr. Kamara’s right front pocket is facing the camera angle, he is too far from the camera to zoom in to his right front pocket.

36DC DaSilva testified he saw Mr. Kamara get into a parked Range Rover and contacted DC Danson, a member of his team, who he knew to be in the area. He informed DC Danson he had just seen Mr. Kamara in possession of a min-Glock. He then contacted Det. Stolf and informed him of the same thing. The Range Rover left the parking lot at 5:36 p.m. The team arrived and proceeded to conduct mobile surveillance of the vehicle.

37DC DaSilva testified he lost sight of the Range Rover around Lawrence Ave. E. and Brimley heading eastbound on Lawrence Ave. E. The team had no visual on the vehicle for about 5 minutes.

38When he lost Mr. Kamara, DC DaSilva testified he drove by a nearby address associated to Mr. Kamara, 47 Pilot. The Range Rover was not there. He continued to Kingston Rd. and saw the Range Rover at 6:11 p.m. outside a restaurant called Twice as Nice. Mr. Kamara came out of the restaurant at 6:22 p.m.

39The team followed Mr. Kamara about a block or two to 47 Pilot at 6:26 p.m. While there, and under surveillance, DC DaSilva took photos of Mr. Kamara from a distance. A photo taken of him shows a bulge in his right front pocket. [3]

40Mr. Kamara left 47 Pilot at 6:42 p.m., and was followed to 1 Vendome, a large Toronto housing property with 6 buildings within the complex, a park, a playground, and basketball courts. At 7:29 p.m. Mr. Kamara is seen entering the underground of the 500 Block. While at Vendome, Mr. Kamara is seen riding a bicycle through the park and the courtyard, at times in the company of another man.

41DC DaSilva testified Mr. Kamara drove out of 1 Vendome at 9:25 p.m. and was followed to 18 Yonge St where he picked up a passenger and headed downtown to Niagara and Wellington. He parked his Range Rover and headed to the One Hotel at 550 Wellington with a man and a woman.

42From the time DC DaSilva’s team arrived at Fairview Mall, to the time Mr. Kamara was arrested at One Hotel, Det. Stolf was the team lead who decided when and where Mr. Kamara would be arrested for possession of a firearm.

43Det. Stolf, DC Danson, and DC DaSilva all testified as to why the One Hotel was the safest location to arrest Mr. Kamara.

44When Mr. Kamara was in his Range Rover, Det. Stolf testified this vehicle was more powerful than any of the undercover officers’ vehicles who were following him. Boxing him in and arresting Mr. Kamara in the vehicle would therefore be unsafe.

45When Mr. Kamara was at 47 Pilot, police would be unable to surprise him, a key factor to consider in the arrest of a suspected armed person. Mr. Kamara’s access to the residence as well as who may be in the residence made for too many uncontrollable and unknown factors to call for an arrest.

46When Mr. Kamara was at Vendome, the size of the complex in addition to Mr. Kamara’s familiarity with it, gave him an advantage over the officers. This made an arrest at this location unsafe.

47Det. Stolf called the take down as the parties headed to One Hotel because, once Mr. Kamara, and both of his companions were inside the bar, the vehicle factor was eliminated, as was the unbalanced familiarity with 47 Pilot and 1 Vendome. Police would outnumber the party of three, and they had the element of surprise on their side in the bar.

48DC Danson and Det. Stolf followed Mr. Kamara into the One Hotel, took him down, arrested him, searched him, located, and seized a mini-Glock from the right front pocket of his jeans, and read him his rights to counsel.

49The next day DC DaSilva went to Fairview Mall to seize video surveillance of his interaction with Mr. Kamara.

ii. Credibility and Reliability Analysis

50The cross-examination of DC DaSilva was meticulous and vigorous in its focus to undermine his credibility and reliability.

51Counsel relies on errors and omissions in DC DaSilva’s notes to support its position that DC DaSilva fabricated observations and acted in bad faith.

52I will review and analyze DC DaSilva’s evidence, his errors, and omissions, individually and in their totality as they pertain to individual issues, and as they apply to the whole of the case.

a. Brimley or Bellamy

53DC DaSilva testified he lost sight of Mr. Kamara when following him southbound on McCowan and then eastbound on Lawrence Ave, E at Brimley Rd. He wrote that in his notes too.

54When given a map, he testified “No. You. Sorry. I wrote Brimley in my notes. But it’s actually, I think it’s, it’s Bellamy. It’s before, it’s between McCown and Markham Road.” He admitted he was wrong.

55Counsel persistently emphasized DC DaSilva had made a mistake. DC DaSilva did not like having to repeatedly admit he made a mistake. I had to remind him he had to continue to answer Counsel’s questions which repeatedly elicited he was wrong about Brimley and Bellamy. Then, I had to remind Counsel to keep her voice down during her cross-examination.

56I find this inconsistency minor and peripheral. DC DaSilva testified he was travelling south on McCowan and lost sight of Mr. Kamara’s Range Rover going eastbound on Lawrence Ave. E. at Brimley. Brimley is west of McCowan and Lawrence Ave. E.

57Had DC DaSilva been travelling westbound on Lawrence Ave. E. from McCowan as Counsel suggested he was, and lost Mr. Kamara at Brimley as she suggested he did, and he wrote in his notes, DC DaSilva and his team would not have located Mr. Kamara east of Bellamy at 4180 Kingston Rd. as they did. A look at the map put into evidence illustrates this point. [4]

58What counsel argued was a relevant and important inconsistency upon which to evaluate DC Da Silva’s credibility and reliability, simply is not. It is a mix up between Brimley and Bellamy that is easily apparent on the maps and the totality of the evidence.

b. 47 Pilot St.

59DC DaSilva did not note in his memo book that he went by 47 Pilot after he lost sight of the Range Rover, and before he located it on Kingston Rd.

60When asked why he did not note it, he responded “I didn’t find him at the address that I believed that he was going to. I found him at Twice as Nice”, “It’s a matter of, of a 15 second drive. So, when I when I found him, that’s where I picked him up. That’s where I put it.”

61Counsel submitted the omission of this note about 47 Pilot in DC DaSilva’s notebook has meaning, suggesting some nefarious meaning, but was unclear as to what meaning that would be. Counsel submitted this address “just popping” into DC DaSilva’s mind was incredulous and that it “came from nowhere” implying DC DaSilva was being untruthful.

62However, this is not the evidence. DC DaSilva testified in chief that he went to 47 Pilot “based on previous experience and previous investigations and knowledge of Mr. Kamara’s friends.”

63In cross-examination, DC DaSilva elaborated he knew Mr. Kamara to associate with Mr. Brenton Edwards, and Mr. Brian Taylor, who he testified “we had arrested previously and had followed him (the friend) to that address.” DC DaSilva did not remember Mr. Edward’s date of birth when asked, but thought it was “1970-something”.

64I find DC DaSilva had a sensible reason for driving by 47 Pilot. It was close by, and he knew Mr. Kamara had a friend connected to that address. DC DaSilva testified satisfactorily about what he did, where he went, and why. He also explained why he did not note it in his notebook. It is logical that at the time he was looking for the Range Rover, there was no reason to list all the places he looked for the vehicle and did not find it, but rather noted where he did find it.

65Counsel submitted DC DaSilva knowing Mr. Edward’s general birthdate was incredulous. Knowing Mr. Edwards was born in the 1970s is not a leap given he had investigative knowledge of Mr. Edwards.

66I accept DC DaSilva’s evidence. This omission in his notes does not undermine his credibility, particularly given the specificity of his evidence about why he drove by 47 Pilot which was in the area he lost sight of the Range Rover and just down the road from where he re-located it.

c. Fabrication

67Counsel submits DC DaSilva fabricated he saw a mini-Glock protruding from Mr. Kamara’s right front pocket when he walked by him. She submits as follows:

a. Moments before Mr. Kamara walks by DC DaSilva, he is seen on video at the Real Fruit Juice, and there is nothing protruding from his right front pocket.

b. The people around Mr. Kamara at the Real Fruit do not act as if he has a firearm.

c. If nothing is seen protruding from Mr. Kamara’s right front pocket at the Real Fruit, then nothing could have been protruding from his pocket when he walked by DC DaSilva moments later.

d. It is implausible for DC DaSilva to identify the make of the firearm from the small portion he testified was protruding from the pocket.

e. Fabricating that he saw a mini-Glock enabled DC DaSilva to initiate his team’s investigation of Mr. Kamara.

68The video of Mr. Kamara at the Real Fruit Juice ordering, waiting for and getting his juice shows he has a large, long, noticeable bulge in his right front pocket.

69Mr. Kamara retrieved his wallet from his left front pocket and returned it there. The video quality is insufficient to zoom in and see if any part of the object in his right front pocket is protruding.

70I therefore do not conclude, one way or the other, that whatever was in Mr. Kamara’s pocket was or was not protruding.

71Counsel urges the court to watch the demeanour of the patrons at the Real Juice to conclude they did not see a firearm protruding from Mr. Kamara’s right front pocket. To evaluate people’s behaviour in this way, with no evidence or context, would be pure speculation disregarding the wide variety of ways people can and do deal with the identification of a firearm in their vicinity.

72As it cannot be determined on the video if the object in Mr. Kamara’s right front pocket is protruding at the Real Juice, it cannot be determined if it did or did not protrude once he obtained and carried his two juices while he held his phone and walked by DC DaSilva.

73DC DaSilva testified he was trained in the use and handling of handguns. He has seized hundreds of firearms, including handguns, rifles, semi-automatics rifles, fully automatic rifles, assault style rifles, long barrelled rifles, and different variations of handguns. For the most part he seizes semi-automatic pistols.

74He has been carrying a Glock for the last 13 years of his career. DC DaSilva identified that where the magazine goes into the receiver, there is an opening space in between the mag and the receiver where the polymer plastic of where the handle is or the receiver position of it, is.

75He testified there is a little perforated area on the grip of the handle portion where the palm goes to attract adhesion to the hand holding the pistol. He testified this is very specific to, and a patent of the Glock design.

76When provided with a photo of the seized Glock from Mr. Kamara, DC DaSilva, without hesitation, identified the “top portion of the receiver, the open portion of the space between the magazine” of the firearm he saw protruding from Mr. Kamara’s right front pocket and made a point of noting the photo was in reverse of what he saw and that the protruding portion was above the pocket, facing outwards of his body. He both circled a portion and drew a line of what protruded.

77DC DaSilva’s experience and familiarity with the design of a Glock, his own firearm, or firearms and handguns in general, was not challenged. Other than suggestions that he did not see what he said he saw; DC DaSilva was not questioned on his knowledge, experience, or familiarity with this specific firearm. In fact, Counsel often referred to and emphasized DC DaSilva’s extensive experience as an officer.

78DC DaSilva was unshaken on what he saw, where he saw it, and why he knew it to be a mini-Glock. The video of Mr. Kamara walking so closely by DC DaSilva supports his evidence that he was close enough to see Mr. Kamara’s bulging right front pocket and identify what was protruding from it.

79Given his knowledge and familiarity with the firearm, and his proximity to Mr. Kamara, there is no basis to assert his identification of what he saw is implausible.

80I find DC DaSilva saw a mini-Glock firearm protruding from Mr. Kamara’s right front pocket.

Motive

81Counsel submits DC DaSilva’s motive to fabricate his observation was to initiate an investigation of Mr. Kamara knowing he had no reasonable and probable grounds to do so.

82This submission is not logical in the context of the totality of the evidence.

83Had DC DaSilva wished to fabricate a reason to investigate Mr. Kamara, the more logical path would be to advise his team in vague terms that he saw a “firearm”. This would be a sufficient description to initiate an investigation rather than be specific and run the risk of being found incorrect later.

84Instead, DC DaSilva was immediately specific. Det. Stolf testified DC DaSilva informed him at 5:28 p.m., within 7 minutes of his observation, that he had observed Mr. Kamara, an individual he knew, was “currently in possession of a, what he described as a mini-Glock firearm ” in his pocket.

85I find DC DaSilva did not fabricate his observation of what protruded from Mr. Kamara’s pocket.

iii. Finding

86Much of this case centered on the credibility and reliability of DC DaSilva, not only on this point of reasonable and probable grounds, but on others as well. His every move, thought, and note was scrutinized, as it should be, by a vigorous cross-examination to test his veracity and accuracy.

87A word is therefore warranted about his demeanour. DC DaSilva’s evidence is no more or less credible or reliable than any other witness’. He is also not expected to be devoid of regular human reactions and frailties because he is an officer. His evidence must meet the high rigour of cross-examination as every witness’ evidence must.

88DC DaSilva was, at times, defensive when his competence was challenged, impatient when asked repetitive questions, overly eager to demonstrate his experience, and annoyed to have to repeat that he made mistakes and did not make a note of specific actions. His manner could be described as arrogant.

89This demeanour, though unpleasant at times, and disappointing as for any witness, however, did not undermine his credibility nor his reliability.

90I accept DC DaSilva’s evidence that he saw a small portion of mini-Glock protruding from the right front pocket of Mr. Kamara’s jeans when he walked by him at the Fairview Mall. He and his team had reasonable and probable grounds to investigate, detain and arrest Mr. Kamara for possession of a firearm.

91This, however, does not end the inquiry, as I must determine if DC DaSilva’s investigation was tainted by racial profiling.

B. Racial Profiling

i. Legal Principles, ss. 7, 15, 8, 9

92Racial profiling violates both ss. 7 and 15 Charter rights.

93The Ontario Court of Appeal in Peart v. Peel (Regional Municipality) Police Services Board at paras. 89-90 stated:

“Racial profiling occurs when race or racialized stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or suspect treatment. The one exception to this is where race is used as part of a known suspect’s physical description, the description is detailed, and an individual is investigated because he or she reasonably matches that description.”

94Justice Doherty further noted at paras. 95-96:

“…The courts, assisted by various studies, academic writings, and expert evidence have come to recognize a variety of factual indicators that can support the inference that the police conduct was racially motivated, despite the existence of an apparent justification for that conduct…

The indicators of racial profiling recognized in the literature by experts and in the caselaw can assist a trier of fact in deciding what inferences should or should not be drawn and what testimony should or should not be accepted in a particular case…”

95The Court went on to state that racial profiling can rarely be proven using direct evidence; it must be inferred from the circumstances of the police action, Peart at para. 95.

96The Court of Appeal had already noted in R. v. Richards at para. 24 that:

"Racial profiling is criminal profiling based on race. Racial or colour profiling refers to that phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of that group. In this context, race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group.

97The Court has also identified that racial profiling may be the result of overt, subconscious, or institutional racial bias, R. v. Brown at para. 8.

98Racial profiling is improper even if it was only one of other factors in a decision to detain or arrest a detainee, Brown v. Durham Regional Police Force; R. v. Dudhi, 2019 ONCA 665 at paras. 62-63.

99In Dudhi the Court of Appeal stated that where race or racial stereotypes are used in any degree in subject selection or subject treatment, there will be no reasonable suspicion or reasonable grounds. The decision will amount to racial profiling.

100The connection between racial profiling and the Charter was made by the Court in R. v. Smith, 26 C.R. (6th) 375, at para. 33-34 stating that racial profiling is an affront to human dignity and implicates the interests protected by s. 7.

101The connection between racial profiling and s. 15 of the Charter is obvious as the stereotyping, discrimination and targeting of anyone based on race undermines the very equality the section aims to protect and promote.

ii. Evidence & Analysis

102The Defence submits DC DaSilva targeted Mr. Kamara for investigation because he is a young Black man and filed both caselaw and academic articles on racial profiling to support this position.

103DC DaSilva knows Mr. Kamara. DC DaSilva knows his name, his nickname, and where he grew up. He has interacted with him and spoken to him at past community events. He is familiar with Mr. Kamara’s social media, videos, and photos, and knows investigative information about him.

104A thorough review of the helpful indicators identified by Professor David M. Tanovich in his article “Applying the Racial Profiling Correspondence Test” referred by the Ontario Court of Appeal in R. v. Sitladeen, 2021 ONCA 303, did not assist when looking for indicators of racial profiling in this case.

105None of the indicators referred to are present. There is no evidence of a suspicion based on a criminal profile, a street check, a criminal record, a curfew, or a recognizance check. There is no discretionary traffic stop, nor an over-reaction to a traffic infraction or anything else. There was no evidence of “nervousness”, “body movements”, or suspicious behaviour that led to targeting Mr. Kamara. There is no evidence of decisions informed by “intuition” or a “hunch”. There are no conclusions reached because of evasive action, or flight. There is no reference to a high crime area, or anything “out of place”.

106When asked in what way, or how did DC DaSilva, on the evidence heard, racially profile Mr. Kamara, Counsel submitted DC DaSilva only looked at Mr. Kamara’s pants and noticed the bulge because Mr. Kamara is a Black man.

107There is no evidence to support that assertion, either directly or indirectly.

108There is no evidence DC DaSilva focused on a Black man, because he is a Black man, or in part, because he is a Black man, consciously or unconsciously. DC DaSilva noticed Mr. Kamara because he knows Mr. Kamara. He looked at and noticed the large bulge in his pocket, because it is noticeable, just as it was seen to be just moments before in the Real Fruit Juice video.

iii. Finding

109The fact DC Da Silva saw the obvious bulge in Mr. Kamara’s pants and looked at it, as Mr. Kamara walked right by him, is not the result of racial profiling, but of looking at something that stands out on someone you know as they walk by you.

110Mr. Kamara was not targeted because of his race, consciously or unconsciously. His race had no role in DC DaSilva’s observation, and no role in any decision made by any officer on the evidence in this case.

111I find no s. 7 or s. 15 violation.

112Having found DC DaSilva to have had reasonable and probable grounds to investigate and arrest Mr. Kamara, and neither his nor any other officer’s decision was infected by racial profiling, it follows that both Mr. Kamara’s detention and the search incident to arrest were lawful and not in violation of his ss. 8 or 9 Charter rights.

C. Lost Evidence

i. Legal Principles ss. 7 and 11(d)

113Pursuant to the Supreme Court’s decision in R. v. La, [1997] 2 S.C.R. 680, [1997] S.C.J. No. 30 at paras. 16-33, there are three separate routes upon which an allegation of lost or destroyed evidence can be made. They are:

i. A violation of the right to disclosure of relevant evidence owing to “unacceptable negligence” on the part of the state;

ii. An abuse of process, where for instance there is deliberate destruction of evidence for the purpose of frustrating the administration of justice or in cases of a high degree of negligence; or

iii. In extraordinary circumstances that the loss or destruction of evidence has caused such serious prejudice to that accused’s fair trial rights that a breach of s. 7 is the result, even if there is no unacceptable negligence or abusive conduct by the state actors.

114The first stage is to determine if a breach of s. 7 has occurred, and if it has, the second stage is to determine the remedy, R. v. Hersi, 2019 ONCA 94 at para. 25.

ii. Evidence

115The day after Mr. Kamara’s arrest, DC Da Silva testified he went to Fairview Mall to look for and seize surveillance video of the interaction he had with Mr. Kamara. He also obtained video of Mr. Kamara driving into the mall, his whereabouts while in the mall, and his leaving the mall from exterior cameras.

116He testified:

• He attended the mall at 5:20 pm and spoke to security.
• He told the security “This is where I came in, this is what I did, I want to see all the footage that was there.”
• He observed the video of himself walking into the mall, identified Mr. Kamara as the person of interest, and saw camera footage of where else Mr. Kamara went.
• The security guard had difficulty downloading the surveillance video and had to call someone to guide him through the process of downloading the video.
• He was not familiar enough with the system to help the security guard download the video. The system was different from the one he was familiar with 2 years before.
• As Mr. Kamara had gone into the Real Fruit, he went there to obtain video surveillance, but it was not available on site. He co-ordinated with the manager to obtain that footage and have it emailed to him.
• He left the mall at 8:30 p.m. to investigate another case while the security guard continued to download the Fairview Mall video.
• He returned to the mall at 10:35 p.m. to pick up the video.

117When asked if he reviewed whether there were other cameras in the front entrance other than what was shown to him, he responded:

“From my understanding there was only one camera in the hallway. Another camera was going towards the north and south hallway there were exterior cameras when he backtracked (Mr. Kamara’s) vehicle arriving as it came in through the south, and went to the east side of, around the mall and ultimately parked.”

“I didn’t see any other cameras that would have captured anything except for that. That was shown to me. That was the whole transaction. Then there was another camera, like I said earlier, from the west side, sort of facing east in the west hallway sort of overlook the Real Fruit area.”

118Counsel suggested there was a second camera at the entrance of the mall where he walked by Mr. Kamara, and a photo of that second camera on the ceiling was shown to him. DC DaSilva testified:

• “I did not see another camera angle on that, or I would have obtained it”.
• “I wasn’t shown the footage of that hallway. I wasn’t shown this. I don’t even know that this camera angle where it points or that it existed.”
• “The camera that was shown to me was the only one that captured the interaction.”

119He agreed with counsel that “What they showed him, is what he went with” and did not seize footage from that second camera angle.

120DC DaSilva did not take note of the name of the security guard he spoke to or write verbatim what he said to the security guard. He also did not write down the guard had difficulty downloading the video.

121Exhibit 13 (a) is a photo of a second camera on the ceiling on the north corner by the entrance where the interaction between DC DaSilva and Mr. Kamara took place. The photo was taken by a student from counsel’s office on September 20, 2023, 4 months after the date of the allegation and 9 months before trial.

122The parties filed the following Agreed Statement of Facts:

• On February 1, 2024, because of evidence heard, DC Prodeus contacted security at the Fairview Mall inquiring about the angle of the view of the unseized camera footage, and whether the camera was operational on May 13, 2023.
• A screenshot of the CCTV camera angle showed the vestibule of the north entrance of the mall that captured the northeast corner of the corridor.
• Security was unable to advise if the camera was operating properly on May 13, 2023, though the cameras go out of operation from time to time.
• The camera was likely installed 15 years ago.
• On May 13, 2023, the camera was angled in the same manner as depicted in screen shot footage sent to DC Prodeus on February 1, 2024.

iii. Analysis

123The Defence is alleging all three routes to a breach have been demonstrated:

• DC Da Silva was negligent when he did not obtain and seize the video surveillance of one of the two cameras capturing his interaction with Mr. Kamara in the Fairview Mall hallway.
• He did not obtain the surveillance in bad faith as it may have shown there was no protrusion from Mr. Kamara’s right front pocket.
• The loss of this evidence has caused such serious prejudice to Mr. Kamara’s right to a fair trial, that s. 7 right is violated.

124The Defence submitted R. v. Downes, 2022 ONSC 4308 is analogous to the case before me.

125In Downes, DC De Sousa, a member of the Guns and Gangs Task Force and a sub-affiant to a Information to Obtain (ITO) was found to have:

• deliberately not seized evidence to avoid it showing what he saw in it
• misled the affiant about evidence he did see
• been contradicted by other officers
• testified inconsistently on 6 points that were contained on the ITO, and on 2 points that were specifically demonstrated to be inaccurate by video evidence

126Justice Nakatsuru concluded that portions of DC De Sousa’s evidence were not credible and that he “engaged in deceptive conduct targeted at securing the search warrants and thereby intentionally misled both the affiant and the issuing justice” (at para. 86). He went further and found DC De Sousa acted in bad faith, abdicated his investigative responsibility, made incomplete notes, was grossly negligent, and he subverted the search warrant process.

127The Crown submits that not only is there an absence of evidence that contradicts and undermines DC DaSilva’s evidence as there was in Downes, but there is corroborating evidence that supports DC DaSilva’s evidence. He further submits DC DaSilva’s investigation and seizure of the Fairview Mall surveillance video demonstrates a reasonable and complete approach far from a negligent one which does not meet the La test for a stay or the exclusion of evidence.

128DC De Sousa’s testimony was demonstrably shown not to be true, in terms of timing, video evidence, GPS evidence, and his colleagues’ testimony, on numerous and significant points. His credibility and reliability were definitively undermined.

129The evidence in this case does not come close to that in Downes, and it is not analogous to the case before me.

130Firstly, DC DaSilva’s actions do not constitute “unacceptable negligence”.

131DC DaSilva went to the mall the very next day after the arrest, spoke to security, asked “to see all the footage that was there.” He was shown, observed, and seized video that captured Mr. Kamara outside the mall, coming into the mall, conducting his business in the mall, leaving the mall, and then leaving the parking lot. There was a full accounting of Mr. Kamara’s movements.

132This is not to say he was not sloppy. He should have noted the name of the security guard he dealt with in his memo book. He could also have been more meticulous. He could have taken the extra step to walk to the entrance of the mall and look to see how many cameras were in that corridor. He could have noted how many cameras there were and compared it to all the angles he was shown by the security guard, rather than relying on security to provide all the footage.

133However, his missing notation and lack of fastidiousness does not amount to unacceptable negligence. There is nothing to suggest, particularly when examined from the lens of the moment, that anything was missing.

134DC DaSilva asked for “all the video” and seized “all of the video” he testified he was shown. Given “all the video” captured every step Mr. Kamara took, there is no indication DC DaSilva should have known, or suspected, there was or could be more video of Mr. Kamara. Relying on security who operates the surveillance of the mall to show you what you ask for is also not an unreasonable or negligent approach to seizing surveillance video.

135Secondly, there is no evidence or inference to be made of an abuse of process or any attempt to frustrate the administration of justice.

136Counsel submits DC Silva did not seize the video of this camera because it would have been “the best evidence” and would have shown “nothing was protruding” from Mr. Kamara’s pocket contrary to DC DaSilva’s evidence.

137That is not the case. The angle of the unseized video is from overhead and captures the left side of people walking under it and out the mall door.

138Although clearer than the seized video of Mr. Kamara from the other side of the corridor and from the Real Fruit video, the unseized video, even if it could be zoomed in, would not have captured the right front pocket of Mr. Kamara that faced DC DaSilva as he walked by on his right side.

139The unseized video would not have been helpful one way or the other to DC DaSilva, and certainly not able to definitively contradict his evidence.

140Thirdly, given what the unseized video is shown to have captured, had it been operational, and seized, to be the left side of Mr. Kamara, not the right side where DC DaSilva testified, he saw the mini-Glock in his pocket, its absence does not cause prejudice to the defence.

141Taking it a step further, had Mr. Kamara’s entrance into the mall by that camera been seized, capturing his right front pocket when he walked in, and definitively not shown anything protruding, it would be no different than the Real Fruit Juice video that simply shows a large, long, noticeable bulge there.

iv. Finding

142I find DC DaSilva’s omissions, noting the name of the security guard, and not double checking the guard’s work by physically walking the hallway himself, do not constitute unacceptable negligence.

143I do not find an abuse of process, or any action taken to deliberately frustrate the administration of justice.

144Finally, I do not find the unseized video to have breached Mr. Kamara’s ss. 7 and 11(d) rights.

D. Right to Counsel

i. Legal Principles s. 10(a)

145Detained persons are entitled to know why they are arrested. Mr. Kamara alleges he was not informed of why he was arrested. This right was explained in R. v. Evans, [1991] 1 S.C.R. 869, [1991] S.C.J. No. 31 at para. 35:

…it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(a).

ii. Evidence & Analysis

146The entirety of the arrest is captured on video.

• At 10:10 pm DC Danson was told over the radio Mr. Kamara, walking with a man and a woman were headed to the One Hotel.
• At 10:14 p.m. both DC Danson and Det. Stolf immediately upon laying hands on Mr. Kamara inside the hotel bar told him they were “police” and he was under “arrest” when they took him to the ground.
• A struggle ensued. Mr. Kamara is observed on the ground resisting both Det. Stolf and DC Danson’s attempts to take control of his hands. Mr. Kamara tries to get up off the floor.
• Det. Stolf is seen on video reaching into Mr. Kamara’s right front pocket, removing a firearm, and setting it to the side.
• Det. Stolf is heard saying on the video to Mr. Kamara, “you’re done, you got a gun”.
• The struggle to gain physical control of Mr. Kamara and properly handcuff him to the rear took almost 7 minutes.

iii. Finding

147Neither Det. Stolf nor DC Danson were shaken on their testimony that they informed Mr. Kamara he was being arrested for possession a firearm. Det. Stolf is heard saying so on the video. This occurred almost simultaneously with the take down, and as Mr. Kamara struggled on the floor. I accept their evidence in its totality.

148I find no 10(a) violation.

iv. Legal Principles s. 10(b)

149In R. v. Bartle, [1994] 3 S.C.R. 173, [1994] 3 S.C.R. 173, at para. 17, the Supreme Court of Canada outlined the three police obligations with respect to s. 10(b) to be:

i. To inform the detainee of their right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel.

ii. If a detainee has indicated a desire to exercise this right, to provide them with a reasonable opportunity to exercise that right (except in urgent and dangerous circumstances)

iii. To refrain from eliciting evidence from the detainee until they have had that reasonable opportunity (also except in cases of urgency or danger).

150Once a detainee asserts this right, police must assist without delay to provide a reasonable opportunity to contact counsel and hold off from eliciting evidence per R. v. Manninen, [1987] 1 S.C.R. 1223, at para. 22.

151Officer safety and the presence of dangerous circumstances negate the requirement for immediate access to counsel per Bartle at para 76.

152Delay is a factual determination, and the onus is on the Crown to show such a delay is reasonable in the circumstances, R. v. Taylor, [2014] 2 S.C.R. 495, 2014 SCC 50 at para. 24.

v. Evidence & Analysis

153DC Danson, DC DaSilva, and PC Kim testified as to what occurred between Mr. Kamara’s arrest at 10:14 p.m. and 11:56 p.m. when he spoke to his counsel. Supporting their evidence was the video of Mr. Kamara’s arrest in the hotel bar and the video of PC Kim’s Body Worn Camera (BWC).

154On the One Hotel video, the following is captured:

• Mr. Kamara struggled with Det. Stolf and DC Danson resisting their attempts to obtain control of his hands. He is seen lifting DC Danson on his back, get into a crawling position, and wrestling with both officers. It takes about 7 minutes for both officers to handcuff Mr. Kamara and bring him to his feet.
• DC Danson is seen bringing Mr. Kamara to the bar and conducting a pat down search. He takes items from Mr. Kamara’s pockets and places them on the bar.
• DC Danson is seen speaking to Mr. Kamara and holding his memo book.

155Det. Stolf testified the best practice is to handcuff a person in the rear, but he was simply unable to do that with Mr. Kamara because of his resistance, so he had to “settle for what he could get” and handcuffed Mr. Karama to the front. It was later learned; it had taken two sets of handcuffs to do the job.

156DC Danson testified he did the pat down search for safety reasons and to look for any other weapons. He provided Mr. Kamara his right to counsel from his memo book and cautioned him after the search. He noted Mr. Kamara’s response that he understood his right and wanted to speak to his lawyer, Kim Schofield.

157Neither officer was seriously challenged on their evidence on these points, and certainly not shaken. I accept their evidence. There is no s. 10(b) informational breach.

158After providing Mr. Kamara with his right to counsel, the arrest video shows:

• DC Danson taking Mr. Kamara to a seat and giving him water.
• Numerous staff, patrons, and police officers in the open area of the bar where Mr. Kamara is seated.
• DC DaSilva leaving the bar area, returning with the woman who had come in with Mr. Kamara, speaking to her and other patrons, and then speaking on his cell phone.
• Mr. Kamara is taken out of the bar and outside.

159DC Danson testified he was unable to facilitate Mr. Kamara’s contact with counsel during this time as privacy for a conversation could not be provided and given the struggle he had just endured and overcome, removing Mr. Kamara’s handcuffs to facilitate a call in any event was not a prudent decision for safety reasons.

160I agree with his assessment. Mr. Kamara could not have been put in contact with his counsel while in the public bar with the police and the police present.

161DC DaSilva testified he called to arrange transport for Mr. Kamara as the vehicles the Guns and Gangs Task Force officers arrived in were not marked scout cars, and not equipped to transport Mr. Kamara.

162PC Kim, from 14 Division confirmed he and his partner received a radio call at 10:25 p.m. to attend One Hotel to take custody of Mr. Kamara. They arrived on scene at 10:37 p.m. and received Mr. Kamara at 10:42 pm.

163Once is his custody, PC Kim turned on his BWC and performed his own brief pat down search of Mr. Kamara before placing him in his scout car. Mr. Kamara advised he needed to urinate first. Both DC Danson and PC Kim facilitated Mr. Kamara’s request before putting him in the scout car.

164PC Kim testified:

• At 10:44 pm he advised Mr. Kamara the video/audio In-Car-Camera System (ICCS) in the scout car was recording.
• He was told Mr. Kamara’s lawyer, from the office of Kim Schofield, had called and that as soon as Mr. Kamara was done being paraded at the station, he was to be put into a phone booth.
• He and his partner left the scene at 10:51 p.m. and arrived at the station at 11:07 p.m.
• They waited at the Sally Port to be let inside. The sally port is a closed, secure area to hold those in custody as they wait to be paraded one at a time for the safety and security of all parties. Mr. Kamara was in the scout car, on video.
• At 11:44 p.m. he entered the Booking Hall and paraded Mr. Kamara.
• At 11:49 p.m. a search of Mr. Kamara was completed.
• At 11:54 p.m. he took Mr. Kamara directly to a telephone booth to speak to his counsel who was waiting to speak to him.
• At 11:56 p.m. Mr. Kamara was speaking to his counsel.

165DC Kim testified he was unable to facilitate contact with counsel any earlier because he is obligated to keep his BWC and the ICCS turned on for his safety, the safety of the detainee, and for transparency purposes. He was therefore not able to provide the privacy required for Mr. Kamara to speak to counsel.

166No information was elicited from Mr. Kamara, at all.

167As in R. v. Pileggi, 2021 ONCA 4 at paras. 75-78 notes, the public nature of the bar, and the recording of Mr. Kamara while in the custody of PC Kim via his BWC and the ICCS did not permit the privacy required to facilitate Mr. Kamara’s speaking to his counsel. This privacy consideration, and the lack of telephone access justifies the period of delay per R. v. Khairi, 2023 ONSC 5549.

vi. Finding

168Ensuring counsel was called and waiting, even before Mr. Kamara was finished with parade and taken to a cell, demonstrated police diligence in facilitating Mr. Kamara’s right to counsel.

169I find the delays while awaiting transport, to provide Mr. Kamara an opportunity to relieve himself, and waiting in the sally port of a busy downtown Toronto police division, were both reasonable and necessary. Mr. Kamara’s right to counsel was provided at the earliest opportunity and I find no s. 10(b) violation.

VII. Conclusion

170Mr. Kamara is charged with the possession of a loaded Glock 27 semi-automatic firearm contrary to s. 95(1) of the Criminal Code with the serial number on that firearm defaced contrary to s. 108(1)(b), while he was on two separate weapons prohibitions contrary to s. 117.01(1) of the Criminal Code.

171As a result of the admissions made, my credibility and reliability findings, and my dismissal of the Charter applications, I find Mr. Kamara guilty of all four counts.

Released: August 20, 2024 Signed: Justice Cidalia C.G. Faria

1After submissions from both parties were heard and the matter adjourned for judgement to June 25, 2024, the Defence applied to re-open submissions to provide the court with an additional case and requesting a further opportunity to make submissions on the allegation of lost evidence. Although the case had been available to the Defence, and it did not decide a new or novel point of law, nonetheless, I did allow the re-opening of submissions and heard further submissions from both parties on the s. 7 lost evidence allegation.

2Exhibit 4: May 13, 2023, video of Fairview Mall North Door Entrance.

3Exhibit 5: May 13, 2023, Colour photo of Mr. Kamara, rear view, on Pilot St. by Range Rover.

[4] Exhibit 11: Map, Route from Fairview Mall to Bellamy and Lawrence Ave. E. Exhibit 12: Map, Route to Twice as Nice Restaurant.