R. v. El Achqer, 2025 ONCJ 632

ONTARIO COURT OF JUSTICE

CITATION: R. v. El Achqer, 2025 ONCJ 632

DATE: 2025 12 03

COURT FILE No.: Hamilton 22-47104591

BETWEEN:

HIS MAJESTY THE KING

— AND —

SOUFIANE EL ACHQER

Before Justice J.P.P. Fiorucci

Heard on May 7 and 9, 2025

Reasons on Charter Application (ss. 8, 9, 10(b) and 24(2))

released on December 3, 2025¹

Tessa Moran counsel for the Crown

Matthew Campbell-Williams counsel for the accused Soufiane El Achqer

FIORUCCI J.:

Overview

1In November 2022, Hamilton police applied for and were granted search warrants for multiple addresses. The police planned to execute these search warrants simultaneously. Noah Braun was a target of the police investigation for two of the addresses. The accused, Soufiane El Achqer, was not a target of the investigation.

2One of the two addresses associated to Mr. Braun was 151 Hughson Street South, Unit 1201, in Hamilton. This was a residential apartment unit in a high-rise apartment building. The police believed this unit was a stash house for a drug trafficking enterprise.

3Three days before the execution of the search warrants, during police surveillance, the accused was seen in the company of Mr. Braun in the vicinity of 151 Hughson Street South. At one point, they exited the apartment building together.

4On November 22, 2022, teams of police officers coordinated to execute the search warrants on the multiple addresses at the same time. Prior to the execution of the warrants, the team assigned to 151 Hughson Street South conducted surveillance outside the apartment building. The accused was again seen exiting the front doors of the apartment building with Mr. Braun. The accused was carrying a knapsack and black satchel. The accused returned to the apartment building a short time later and entered the front doors, again carrying a black knapsack and black satchel.

5When police units were in place at each of the multiple locations where search warrants were being executed, and were ready to execute the warrants, the team of police officers assigned to 151 Hughson Street South attended at the front doors of the apartment building. As the police officers were entering the front doors, the accused was exiting the apartment building.

6A police officer detained the accused and asked him what apartment he was coming from which elicited an incriminating response. The police then took the accused up the elevator with them to the twelfth floor. The police entered Unit 1201 pursuant to the validly issued judicial authorization. They located controlled substances and cash as well as other items of evidentiary value to this prosecution. The accused was arrested and given his right to counsel and caution for the first time. The accused was detained for approximately six minutes without being advised of his right to counsel.

7The accused is charged with possession of three Schedule I substances for the purpose of trafficking and proceeds of crime over $5,000. He brought a Charter application at the outset of the trial alleging violations of ss. 8, 9 and 10(b). He asserts that he was arbitrarily detained and subjected to an unconstitutional search and seizure when the police officer asked him what apartment he was coming from. As the police did not convey to him immediately upon his detention that he had the right to counsel, the accused claims an infringement of the informational component of s. 10(b).

8The accused did not challenge the issuance of the search warrant for Unit 1201. However, he seeks exclusion of the evidence found within the apartment contending that the multiple constitutional violations are sufficiently connected to the acquisition of this evidence, and that the admission of this evidence would bring the administration of justice into disrepute.

9The Crown submits that no Charter violations occurred. In the alternative, if the Court finds any infringement of Charter rights, the Crown says it should not result in the exclusion of evidence obtained pursuant to a validly issued search warrant.

10The Crown has made concessions. The Crown undertakes not to rely on the accused’s answers to police questioning while under detention to connect him to Unit 1201. Therefore, the Crown will not adduce at trial, and asks me to disabuse my mind of, the accused’s utterance to police that he was a tenant in Unit 1201. Furthermore, at some point during the accused’s detention or arrest, the police seized a key for Unit 1201 from him. The Crown has undertaken not to adduce evidence at trial regarding the seizure of this key from the accused.

11On the Charter voir dire, the Crown called the officer who detained the accused, PC Ryan Blake, and another officer who transported the accused to the police station and facilitated his call with duty counsel. Upon hearing from the transport officer, the accused conceded that there was no violation of the implementational component of s. 10(b). The accused did not testify on the voir dire.

12These reasons explain why I find no violation of s. 9 of the Charter but do find violations of ss. 8 and 10(b). However, these reasons also explain why these breaches do not result in exclusion of the evidence located in Unit 1201.

The Facts and the Evidence of PC Ryan Blake

13A drug investigation led the police to identify 151 Hughson Street South, Unit 1201 in Hamilton to be an address of interest. 151 Hughson Street South was an apartment building with multiple residential units. Unit 1201 was one of the residential units on the twelfth floor of the building. This unit was believed to be a drug stash house associated to Mr. Braun, one of the targets of the investigation.

14The police investigation included physical surveillance, a tracking warrant for Mr. Braun’s phone and a cell phone extraction. On November 15, 2022, police conducted surveillance. Using the tracker, the surveillance team located Mr. Braun at 2:05 p.m. at the Big Bee Food Mart at John Street South and Young Street in Hamilton. At 2:10 p.m., police observed Mr. Braun and a male wearing a distinctive camouflage jacket to walk together westbound on Young Street before proceeding to the area of Hughson Street South and Haymarket Street.

15When the police made their surveillance observations on November 15, 2022, they did not know who the male in the camouflage jacket was. They did not know his name and he was not a target of the drug trafficking investigation. They took photos of him in the company of Mr. Braun on November 15. The police first learned that this male was the accused, Mr. El Achqer, when PC Blake encountered him in the lobby of the apartment building on November 22, detained him, and asked him who he was and what apartment he was coming from.

16On November 15, at 2:14 p.m., Mr. Braun and the accused arrived at, and walked to the front doors of, the apartment building at 151 Hughson Street South. At 2:52 p.m., Mr. Braun and the accused exited the building.

17Police later viewed video from inside the apartment building for November 15, 2022, which showed Mr. Braun entering the building at 2:14 p.m., wearing a backpack described as “very full”. He got off the elevator on the twelfth floor. He walked to the left, where there were only three apartments, Units 1201, 1202, and 1203. When Mr. Braun exited the building at 2:52 p.m., the police observed that his backpack was noticeably less full. Police made other observations of Mr. Braun on November 15 and 17.

18The search warrant for Unit 1201 was issued on November 18, 2022. It was valid until November 22 at 11:59 p.m. Police had also been granted search warrants for other locations of interest in the investigation.

19I find that PC Blake was a credible witness who gave reliable evidence about his limited involvement in the investigation prior to November 22, and regarding the events of November 22.

20PC Blake testified that the morning of November 22, the officer in charge briefed him about the investigation and advised him that search warrants had been granted for numerous locations. PC Blake was tasked to take a team of officers to execute the search warrant at 151 Hughson Street South, Unit 1201. He learned during the briefing that this was suspected to be a stash location where Mr. Braun would attend and leave controlled substances, or money, or other evidence of drug trafficking. Mr. Braun was not suspected to reside at Unit 1201 and PC Blake does not believe that the police had any information at the time of the briefing about a possible tenant for that unit.

21Shortly after being briefed by the officer in charge, PC Blake briefed his team, which included four other police officers. PC Blake and his team then attended the area of 151 Hughson Street South. On the voir dire, he testified, “our primary objective was to safely execute search warrants in a, like, a concise manner, where I believe there were three that were being done more or less simultaneous”.

22PC Blake explained that his team stood by in the area of the apartment building and waited to execute the warrant. While doing so, at 2:25 p.m., PC Blake observed Mr. Braun exit the front doors of 151 Hughson Street South with the male who he would later learn was the accused. The accused was wearing a white and grey camouflage jacket, dark pants, a baseball cap, and he was carrying a black knap sack and black satchel. The police did not follow the men, but they were last seen eastbound on Young Street towards John Street South.

23PC Blake testified that the accused later returned without Mr. Braun. The accused was wearing the same clothing and was carrying a black knapsack and a black satchel. He entered the front doors of the apartment building with a bicycle.

24PC Blake testified that prior to making these observations of Mr. Braun and the accused on November 22, he had seen surveillance photographs of both men. He testified that he had seen the November 15 surveillance photographs which depicted the accused and Mr. Braun together. These two photographs are Exhibits 3 and 4 on the voir dire.

25PC Blake testified that, on November 22, at 4:13 p.m., he learned that “the other teams that had been given other locations were in a position to safely arrest the targets of their investigations and execute the warrants”. PC Blake attended the building management office for 151 Hughson Street South and was provided with a master key for the building.

26The search team attended at the front of 151 Hughson Street South at about 4:20 p.m. and as the team was entering the front doors of the building, they observed the accused exiting the building with a black dog. At this time, he was not wearing the camouflage jacket. PC Blake stopped the accused, asked him what apartment he was coming from and who he was. PC Blake testified that the accused, “provided his information, his name, Soufiane El Achqer with his date of birth. And then stated that he was a tenant in apartment 1201 at the apartment building”.

27The following exchange occurred between Crown counsel and PC Blake:

Q. ... And what was the reason for your stopping the gentleman and making those inquiries?

A. Well, so at this time multiple search warrants were being executed. Mr. El Achqer had been seen with Mr. Braun earlier in that day. He had also been seen with him days prior. Based on their activities I believed that, that he was involved in, in some type of drug trafficking with Mr., Mr. Braun. We also believed that 151 Hughson Street South was a stash location. Earlier in that day we had seen Mr. El Achqer leave and then come back to the residence with a knapsack and the satchel after being with Mr. Braun. At that point in time, I detained him for, for drug trafficking offences and told him that we would need him to come up to apartment 1201 with us.

28PC Blake and the search team took the accused up the elevator to the twelfth floor. At 4:24 p.m., the team entered Unit 1201 with the master key for the apartment. PC Blake believes that the accused was in the hallway just outside the door when the team entered the apartment.

29The apartment was cleared. No one was found inside. PC Blake observed what he believed to be a white cocaine rock on the table in the main common area. He arrested the accused at 4:25 p.m. for s. 4(1) CDSA cocaine. At 4:26 p.m., PC Blake provided the accused with his right to counsel and caution for that offence. PC Blake then learned that officers had located multiple bags of suspected fentanyl and methamphetamine in a black bag in the living room. At 4:28 p.m., PC Blake arrested the accused for s. 5(2) CDSA for these controlled substances and provided him with rights to counsel and caution.

30Within Unit 1201, the police located and seized 128 grams of methamphetamine, 30.33 grams of fentanyl, and 109.72 grams of cocaine, as well as $16,200 in cash. These items were located primarily in a black knapsack and a black satchel. Police believed them to be the same knapsack and satchel they observed the accused to be wearing earlier in the afternoon as he entered the apartment building. During the search of the apartment, the police also located a camouflage jacket that appeared to be the jacket the accused was seen wearing when police observed him during surveillance on November 15 and earlier in the afternoon of November 22.

31During cross-examination, PC Blake agreed with defence counsel that his detention of the accused as he exited the front doors of the apartment building on November 22 was an investigative detention. He stated, “part of our…investigation was into drug trafficking, and he was detained as part of that investigation”. PC Blake testified that he did not know who the accused was or where he lived before encountering him at the front doors of the building on November 22. However, the officer stated that he was aware of the accused before November 22 and “knew that he was an individual that had popped up throughout the investigation”.

32When defence counsel questioned PC Blake about the November 15 surveillance photographs, the following exchange occurred:

Q. Right. And you'd agree in those pictures that there's no evidence in those pictures of him committing any criminal offence, right?

A. What, in those stills?

Q. Yeah.

A. No. No, I, I would, I would - sorry, not no. In the stills I would agree with you but my understanding was that Mr. El Achqer was, was meeting up with Mr. Braun and Mr. Braun was actively participating in what appeared to be drug trafficking transactions.

Q. Right.

A. So, in the stills itself? No. I would agree with you that there's no - or that there was no crime being committed in those stills. However, their interactions coming to and from 151 Hughson and then Mr. Braun's corresponding actions did, led me to believe that there was some criminal activity going on.

Q. And you'd agree that the information is that Mr. Braun is conducting these activities on his own, right, that Mr. El Achqer wasn't with him?

A. Again, I didn't know anything about Mr. El Achqer.

Q. Sorry, even the person that you knew was with him. It's your understanding that Mr. Braun was, was by himself when he's conducting these transactions?

A. Well, predominantly, yes. I knew that Mr. El Achqer had showed up on, I believe it was the 15th of November 2022. I know Mr. Braun was the focus of the investigation, but between Mr. El Achqer showing up on the 15th and then what we observed on the 22nd, he did, you know, exhibit some behaviours or some, he was participating in what appeared to be some activities that were criminal in nature.

Q. And you're, you're speaking about Mr. Braun or Mr. El Achqer when you say he?

A. Mr. El Achqer. What I'm saying is that Mr. Braun was the focus of our investigation. Mr. El Achqer kind of fell into the investigation as we continued investigating closer to the end of November of 2022.

Q. Right. And there was something you said and that you, you had some indication that, you said that he was engaged in some criminal activity. Who do you mean by he?

A. So, I was speaking about both of them. I'm saying the, the prominent person in this investigation was Mr. Braun. Mr. El Achqer started coming into the fold near the end of the investigation.

Q. Okay. And what criminal activity is that?

A. We believed it was drug trafficking.

33The following exchange occurred between defence counsel and PC Blake regarding the decision to detain the accused:

Q. ... So, upon seeing him that day, you knew you were going to detain him when you saw him coming out of the building?

A. Yes. Well, I, I hadn't, I hadn't planned, I didn't know I was going to run into Mr. El Achqer. But, yes, when we entered the building and we, and we coincidentally came across him, then, yes, he - I knew at that point in time that I would be detaining him.

34During cross-examination, defence counsel asked PC Blake his understanding of when police are to give someone their right to counsel and he replied, “as soon as practicable”. When defence counsel asked PC Blake why he did not provide the accused with his right to counsel when he detained him at 4:20 p.m., he replied:

A. There was. As mentioned there were a lot of moving parts; this was a dynamic situation. We didn't plan on running into Mr. El Achqer at the front door….once we learned that… sorry, let me just refer to 16:13 hours that it was safe to execute the search warrants different teams were in different places throughout the city. I, I went and got a key for the building. Again, this was all happening within seven minutes. One of the individuals kind of on a similar path to this investigation, one of the executions we actually drove through. He was arrested. So, there were - and we believed that 151 Hughson Apartment 12 [sic] was a stash house. So, there was a lot of things going on, not only in the immediate area but it was simultaneously. My concern was if we, we stood in the hallway - I didn't know who was upstairs. Again, I didn't know Mr. El Achqer. My concern was us being in such an open area, if there was somebody upstairs and there was a camera in the hall, or somebody saw something - and there was a, a lot going on in that area - that somebody upstairs could have been tipped off or notified and the stash could have very easily, we could have had a, a loss of evidence, keeping in mind I had a, a small team of, I believe five or six to do this. I made a decision at that point in time to detain him, advise him why he was being detained, gather his information and then bring him upstairs to the unit where we could clear the unit. And then at that point in time, as soon as possible, provide him his rights to counsel and caution. That was my thought process at the time. Also, keeping in mind that this was all, you know, some of it was unfolding in a dynamic way where we hadn't planned and we were just coming across this as it happened.

35The cross-examination on this issue also included the following exchange:

Q. So, I understand what you're saying about, you know, you didn't necessarily need, want to facilitate a call because people have been watching from the cameras and, you know, it's a dynamic situation. What's the reason for not telling him at all that he has a right to counsel?

A. Sorry, what, when, when, like, when we're downstairs, like....

Q. Yes. Why didn't you just spend a few seconds and tell him you're being detained, he has a right to counsel?

A. Well, so, what I was trying to do is advise him of the reason, the reasons for detention, bring him upstairs. And then at that point, once the entry had been made and there was a controlled environment I was planning on doing that and, and making sure that he understood that. My, my reasoning for it was, I didn't believe at the time we the time to sit there. If I, you know, if I got into a conversation with him about the reason for detention, rights to counsel and caution and, you know, he didn't understand or, or there was some type of complication there, I just didn't feel that in that moment we had the time with everything that was going on. So, I made a judgment call, at that point, to bring him upstairs, very briefly delay that, make sure we safely entered and the apartment was clear and then at that point, facilitate it.

36PC Blake gave evidence that he thought about the possibility of staying downstairs with the accused to provide his right to counsel but again explained why he did not:

Q. Okay. Did you ever turn your mind to the possibility of all of you staying down there with him, reading the rights to counsel, letting him know he has a right to counsel, maybe telling him we'll call a lawyer for you later and then going up?

A. So, I, I did. I, I thought of these things in the moment, however, like I explained, I made a decision, us believing that that was going to be a stash unit, as a result of, as a result of what we believed in this investigation, to go upstairs, clear the unit and then do that, that kind of thing. Controlled substances as commonly known, they're, they're not - they can very easily be, be destroyed or something can happen to them. Like, they can - I've been involved in cases where they're flushed down the toilet, they're thrown over balconies, things can happen. The - in my opinion, especially with the takedown that was happening outside, and then us coming across Mr. El Achqer in the hallway, I wanted to mitigate the risk of that, so I delayed until we got upstairs.

37PC Blake acknowledged that he did not know if there were cameras in the lobby of the apartment building. He also acknowledged that asking someone where they live is different than asking them where they are coming from. Then the following exchange occurred between defence counsel and PC Blake:

Q. Okay. So, that's my question. What was the purpose of asking him what unit he's coming from?

A. Well, it was, it was part of our investigative detention, right? Like, he's being detained because I'm furthering this investigation. Those - so the two questions I asked him was, who are you and where are you coming from?

Section 9: The Investigative Detention of the Accused was Lawful

38As the authors of Detention, Arrest, and the Right to Counsel state:

To invoke an investigative detention, the officer must reasonably suspect that the person to be detained is engaged in criminal behaviour. Reasonable suspicion is about the reasonable possibility of criminal conduct.²

39Reasonable suspicion is a lower standard than reasonable and probable grounds, “as it engages the reasonable possibility, rather than probability, of crime.”³ Reasonable suspicion is “assessed against the totality of the circumstances”.⁴ This “inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation”.⁵ It “must be fact-based, flexible, and grounded in common sense and practical, everyday experience”.⁶

40In R. v. Mann, the Supreme Court of Canada (SCC) held that “police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary”.⁷ This means that, “[i]t is not enough for an officer to suspect that a person is generally implicated in criminal activity”.⁸

41In Mann, the SCC said that, in addition to the reasonable suspicion requirement for an investigative detention, “[t]he detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence”.⁹ The authors of Detention, Arrest, and the Right to Counsel say this about the reasonably necessary requirement:

The necessity analysis is not as rigorous as the reasonable suspicion analysis. There are two reasons for this. First, the necessity requirement is not siloed from the reasonable suspicion analysis. A detention might be reasonably necessary because an officer reasonably suspects a clear nexus between the individual to be detained and a recent or ongoing criminal offence. After all, police officers are duty bound to preserve the peace, prevent crime, and protect life and property. If a police officer reasonably suspects a person’s involvement in a recent criminal offence, then the officer is obliged to act; the necessity to detain flows from the grounds to detain.¹⁰

42In the accused’s case, the police had amassed information regarding Mr. Braun’s suspected drug trafficking activities that resulted in a search warrant being granted for Unit 1201. The accused had been seen by police in the company of Mr. Braun on November 15, 2022. The two men were seen arriving at the front doors of the apartment building at 2:14 p.m. Video from inside the apartment building showed Mr. Braun entering the building at this time wearing a backpack described as “very full”. He got off the elevator on the twelfth floor and walked in the direction of Unit 1201. When Mr. Braun exited the building at 2:52 p.m. with the accused, the police observed that his backpack was noticeably less full.

43I accept PC Blake’s evidence that he saw the surveillance photographs of Mr. Braun and the accused that the police took on November 15 before attending at the apartment building with the search team to execute the warrant on November 22. I also accept his evidence that these observations led police to suspect that the accused was involved in the drug trafficking activities of Mr. Braun.

44The information PC Blake had received from other officers about the accused’s possible involvement was supplemented by his own observations on November 22. He observed the accused again in the company of Mr. Braun, exiting the front doors of the building. The accused was carrying a black knapsack and black satchel. The accused returned to the building alone sometime later carrying a black knapsack and a black satchel and he entered the front doors of the apartment building with a bicycle.

45The totality of the circumstances known to PC Blake when the accused exited the building at 4:20 p.m., as the search team was going in to execute the warrant, provided a constellation of objectively discernible facts that gave PC Blake reasonable cause to suspect that the accused was involved in the criminal activity under investigation.

46Furthermore, the detention was reasonably necessary on an objective view of the totality of the circumstances. PC Blake had a reasonable suspicion that there was a clear nexus between the accused and a recent or on-going criminal offence being committed in Unit 1201. I accept PC Blake’s evidence that he had a concern about the possible loss of evidence when he encountered the accused at the front doors of the apartment building. Part of the totality of the circumstances was the fact that the police were executing search warrants at multiple addresses simultaneously and the timing of the entry to Unit 1201 was coordinated with other teams of officers. To simply permit the accused, an individual suspected of being involved in Mr. Braun’s drug trafficking activities, to go on his way posed the risk that he would alert others in Unit 1201 that a team of police officers had entered the building, and possibly prompted the destruction of evidence within the unit. No evidence was led about how the other officers were dressed, that is, whether they were in uniform or identifiable as police officers, but I infer from the evidence of PC Blake that the search team entered the building together when they encountered the accused.

47Furthermore, the investigative detention was carried out in a relatively non-intrusive manner. The police escorted the accused up the elevator to the twelfth floor to await the police entry to the apartment. The time between the start of the investigative detention and the accused’s arrest was approximately five minutes, with PC Blake conveying to him his right to counsel and caution about a minute later.

48Defence counsel relied on the British Columbia Supreme Court decision in R. v. Gelowitz.¹¹ In Gelowitz, the Court dealt with a challenge to the facial validity of an ITO used to obtain search warrants for five locations, two of which Mr. Gelowitz had standing to challenge. This was not an investigative detention case. The standard the Court was required to apply was whether the totality of the information disclosed in the ITO provided reasonable grounds for believing that an offence had occurred and that evidence of the offence, namely drugs or drug-related items, would be found in the place to be searched.

49Ultimately, the Court found that the evidence fell short of meeting the threshold for a reasonable belief or credibly based probability that Mr. Gelowitz had committed an offence or that evidence of that offence would be found at the specific locations searched, one of which was his residence. The Court made this finding by weighing the totality of the information, including information received from informers.

50Defence counsel pointed to the fact that the Court invalidated the warrant notwithstanding that Mr. Gelowitz was seen making multiple short duration stops at various locations, was seen interacting with two persons on separate occasions shortly before each of those persons was found to be in possession of a reasonably sizable amount of cocaine, was seen making multiple short duration stops at four locations that were the subject of the search warrant, sometimes carrying a bag in or out of the place he stopped, and was seen having a short duration interaction with an individual who had been described as a drug dealer by one of the informants.

51Gelowitz does not assist the accused in advancing his argument that the police lacked grounds for an investigative detention. As stated, the standard the Court was applying was not a reasonable possibility of criminal conduct. I note the Court’s finding that “the evidence in the ITO provides good reason to suspect that Mr. Gelowitz may be involved in drug trafficking, and it might even be characterized as a strong suspicion”.¹²

52I find that PC Blake’s investigative detention of the accused was lawful. There was no breach of the accused’s s. 9 Charter right not to be arbitrarily detained.

Section 10(b): The Delay in Conveying the Informational Component was a Breach

53The accused claims that the police failed to convey the right to counsel immediately upon his detention. The accused’s complaint, therefore, is that the police failed to comply with the informational component of s. 10(b).

54The police must convey the informational component of s. 10(b) immediately upon the person’s detention or arrest.¹³ In R. v. Suberu, the SCC said that the “immediacy of this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter”.¹⁴ The SCC said that the right to counsel is meant to assist detainees to regain their liberty, and to “guard against the risk of involuntary self-incrimination”.¹⁵

55PC Blake testified about the reasons he delayed conveying to the accused that he had the right to counsel. The officer said he was concerned that if he and the search team stood in the hallway, in an open area, there may be cameras in the hallway, and someone upstairs might be tipped off or notified and the drug evidence could be lost. He acknowledged in cross-examination that he did not know if there were cameras in the lobby of the apartment building. PC Blake also spoke of the dynamic nature of the situation and how the police did not expect to run into the accused in the lobby.

56PC Blake’s evidence that he believed police are required to give a detainee their right to counsel “as soon as practicable” is concerning as it shows that the officer may not know that the informational component of s. 10(b) requires immediacy with only limited exceptions. While I accept PC Blake’s testimony that he delayed providing the right to counsel because of the dynamic nature of the situation and his concern about the potential loss of evidence, he could have conveyed the essence of the informational component while escorting the accused up the elevator, and later reading the standardized right to counsel card from his notebook if the detention continued.¹⁶

57There were no concerns for officer or public safety which justified providing no information whatsoever to the accused about his right to counsel from the time he was detained in the lobby to the time when the police entered the apartment and developed grounds to arrest him.

58I find an infringement of the informational component of s. 10(b) of the Charter.

Section 8: The Questioning of the Accused and His Response during the Investigative Detention was an Unlawful Search and Seizure

59In support of the s. 8 issue, defence counsel provided R. v. McKinnon,¹⁷ an Ontario Superior Court of Justice decision of Justice Henderson. In this decision, Justice Henderson referred to and relied upon Justice Doherty’s decision in R. v. Harris,¹⁸ which I find contains the applicable principles to assess the accused’s s. 8 claim.

60Mr. Harris was a passenger in a motor vehicle stopped by police after the driver failed to signal a left turn. The officer asked all of the occupants, including Mr. Harris who was sitting in the front passenger seat, to identify themselves. Mr. Harris did so and a search of CPIC revealed a breach of a curfew bail condition. Mr. Harris was arrested and searched, and police located a quantity of crack cocaine in his waistband. He was charged with possession of cocaine for the purpose of trafficking.

61One of Mr. Harris’s Charter claims was that he was subject to an unconstitutional search when he was asked to identify himself while he was detained in the vehicle. Justice Doherty agreed with the trial judge’s finding that the officer’s request that Mr. Harris identify himself constituted an unreasonable search and seizure, but he would not exclude the cocaine from evidence pursuant to s. 24(2).

62Justice Doherty reviewed the trial judge’s finding that Mr. Harris’s s. 9 Charter right not to be arbitrarily detained was infringed. He found that the trial judge was in error. Although Mr. Harris was detained when the officer asked him to identify himself, his detention was not arbitrary. He was detained “by virtue of the lawful stopping of the vehicle, the ongoing investigation of the Highway Traffic Act violation, and [the officer’s] lawful assuming of control over the movements of the passengers in the vehicle”.¹⁹

63However, Justice Doherty went on to find that the officer did not ask Mr. Harris for identification in relation to any potential Highway Traffic Act violation, but rather “wanted the information so that he could conduct a CPIC search to determine, among other things, whether Harris was on bail or any other form of judicial order”.²⁰ The officer also used the identification information “in a more general way to gather and record information about the movements of individuals who happen to be detained in the course of Highway Traffic Act stops”.²¹

64In assessing Mr. Harris’s claim that the request for identification infringed s. 8 of the Charter, Justice Doherty said the following:

A seizure is a non-consensual taking by a state agent of anything in which the person asserting a s. 8 right has a reasonable expectation of privacy. The thing taken may be tangible or intangible. Information can be seized. At its most fundamental, s. 8 preserves an individual zone of privacy against state intrusion. The state can enter into that zone if the intrusion meets a reasonableness standard: see R. v. Colarusso (1994), 1994 CanLII 134 (SCC), 87 C.C.C. (3d) 193 (S.C.C.), at 233.²²

65Justice Doherty went on to say:

Answers to police questions may or may not give rise to a s. 8 claim. As with other aspects of the s. 8 inquiry, a fact-specific examination of the circumstances is necessary. Where the subject of the questioning is under police detention and reasonably believes that he or she is compelled to provide the information sought in the questions, I do not think it distorts the concept of a seizure to describe the receipt of the information by the police as a non-consensual taking of that information from the detained person.²³

66The accused was under investigative detention when PC Blake asked him what apartment he was coming from. PC Blake acknowledged in his testimony that his purpose in asking the accused this question “was part of our investigative detention” and that the accused was “being detained because I'm furthering this investigation”.

67Although the accused did not testify on the voir dire, I find that it can reasonably be inferred from the totality of the evidence that he felt compelled to respond to this question put to him by PC Blake. PC Blake’s evidence suggests that he and the entire team of searching officers were entering the building when they encountered the accused, at which point PC Blake immediately detained him. The presence of five police officers and the fact that PC Blake asked the question when the police had assumed physical control over the accused’s movements, leads me to make the finding that the accused felt compelled to respond to the question, which PC Blake acknowledges was asked to further the investigation.

68In Harris, Justice Doherty said the following, which I find to be applicable to the accused’s case:

A person under police detention who is being asked to incriminate himself has more than a reasonable expectation of privacy with respect to the answers to any questions that are put to him by the police. That person has a right to silence unless he or she makes an informed decision to waive that right and provide the requested information to the police: R. v. Hebert (1990), 1990 CanLII 118 (SCC), 57 C.C.C. (3d) 1(S.C.C.). In the circumstances, Harris’s identification in response to the officer’s question constitutes a seizure and attracts s. 8 protection.²⁴

69I conclude that the accused was subject to a seizure when he responded to PC Blake’s question regarding what apartment he was coming from. I find that there was a s. 8 violation arising from this warrantless seizure of information. As stated, although the Crown did not concede a breach of any of the accused’s Charter rights, the Crown undertook not to rely on the accused’s response to the question as evidence connecting him to Unit 1201.

70The search of the apartment was pursuant to a validly issued warrant which the accused did not challenge. As the evidence of PC Blake discloses, and as conceded by the accused, the police would have executed the search warrant regardless of the accused’s answer to PC Blake’s question or any other breaches of the accused’s Charter rights during the brief investigative detention. There was no s. 8 violation arising from the execution of the search warrant at the apartment.

Section 24(2)

71The accused applied for the exclusion of the evidence that the police found within Unit 1201 pursuant to s. 24(2). Since I have found section 8 and 10(b) Charter infringements, I must engage in the s. 24(2) analysis.

Obtained in a Manner that Violates the Charter

72Before the evidence found within Unit 1201 can be considered for exclusion under s. 24(2), the accused must prove, on a balance of probabilities, having regard to all the circumstances, that the evidence was “obtained in a manner” that infringed or denied a Charter right. If the accused succeeds in establishing the “obtained in a manner” threshold, to obtain an order excluding the evidence, he must also prove, on a balance of probabilities, that “after considering, weighing, and balancing the three Grant factors, the admission of the evidence would be more harmful to the long-term repute of the administration of justice than would its exclusion”.²⁵

73The “obtained in a manner” threshold test requires the accused to establish, on a balance of probabilities, that:

(a) viewed from a “generous approach”²⁶ and considering the “entire chain of events”;²⁷

(b) a violation of the accused’s own Charter rights;²⁸

(c) and the acquisition of evidence sought to be adduced at trial;²⁹

(d) are connected, whether causally, temporally, contextually, or a combination thereof;³⁰

(e) within the same investigative transaction or course of state conduct;³¹ and

(f) that connection is not too tenuous or remote.³²

74The acquisition of the evidence from Unit 1201 was not caused by the breaches of the accused’s ss. 8 and 10(b) Charter rights. As stated previously, the police had already applied for and been granted judicial authorization to search the apartment. They acted on that validly issued warrant to gain entry to the apartment. It cannot be said that the evidence would not have been discovered “but for” the breaches of the accused’s Charter rights.

75The infringements of the accused’s Charter rights occurred within the approximately six-minute period that he was detained for investigative purposes. The SCC said this in R. v. Strachan:

A temporal link between the infringement of the Charter and the discovery of the evidence figures prominently in this assessment, particularly where the Charter violation and the discovery of the evidence occur in the course of a single transaction. The presence of a temporal connection is not, however, determinative. Situations will arise where evidence, though obtained following the breach of a Charter right, will be too remote from the violation to be “obtained in a manner” that infringed the Charter. In my view, these situations should be dealt with on a case-by-case basis. There can be no hard and fast rule for determining when evidence obtained following the infringement of a Charter right becomes too remote.³³

76The fact that the Charter infringements happen around the same time as the seizure of the evidence “does not make those events temporally connected for the purposes of this analysis”.³⁴ In the accused’s case, the ss. 8 and 10(b) Charter infringements occurred prior to the execution of the search warrant on Unit 1201. The infringements did not impact on the obtaining of the search warrant nor on the execution of it. In my view, the evidence located within Unit 1201, though obtained following the breach of the accused’s Charter rights, is too remote from the violations to be “obtained in a manner” that infringed the Charter. I reiterate that the evidence was obtained pursuant to a validly issued search warrant, the validity of which has not been challenged by the accused. Furthermore, the information that the police obtained from the accused in violation of his ss. 8 and 10(b) rights had no bearing on their ability to execute the warrant. The police were going to and were lawfully entitled to execute the warrant regardless of whether they saw the accused and learned his apartment number.

77If I am in error in finding that the evidence was not “obtained in a manner”, I will go on to address the Grant factors to determine whether admission of the evidence would bring the administration of justice into disrepute.

Would Admission of the Evidence Bring the Administration of Justice into Disrepute?

78At this stage, I must balance the Grant factors and “arrive at a conclusion about whether the admission or the exclusion of the evidence would better serve the long-term reputation of the administration of justice in the eyes of informed members of the public”.³⁵

(a) Seriousness of the Charter-Violating Conduct

79I find that PC Blake did not act in bad faith when he elicited incriminating evidence from the accused and when he did not convey the right to counsel to the accused immediately upon detaining him for investigative purposes. However, the absence of bad faith does not equate to good faith.³⁶ Good faith requires police officers to have an honestly held and reasonable belief that their conduct was lawful.³⁷

80In R. v. Buhay, the SCC cited Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd edition, Toronto: Butterworths, 1999, at p. 450 when it held that, "good faith cannot be claimed if a Charter violation is committed on the basis of a police officer's unreasonable error or ignorance as to the scope of his or her authority".³⁸

81PC Blake’s conduct fell somewhere between good faith and bad faith when he failed to provide the accused with his right to counsel immediately upon detaining him for investigative purposes and when he asked a question which could incriminate the accused and did so to further the drug trafficking investigation. As the SCC said in Grant, “ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith”.³⁹

82PC Blake did not intentionally disregard the Charter. However, his conduct demonstrated ignorance of the scope of his authority when he placed the accused under investigative detention. Ignorance of well-established Charter standards, such as the need to provide rights to counsel immediately upon detention, can underpin a finding that a breach is serious.⁴⁰

83However, examining the totality of the circumstances that presented themselves to PC Blake when he encountered the accused unexpectedly in the lobby, I find that the seriousness of the officer’s Charter-infringing conduct is significantly attenuated. I accept PC Blake’s evidence that he was not expecting to encounter the accused as he and his search team entered the building and that he was dealing with a “dynamic” situation. As he said in his testimony, his primary objective that day, and that of his entire team, was to safely execute the search warrant at Unit 1201, knowing that other search warrants were being executed, more or less simultaneously, at various locations as part of the same investigation.

84I also accept PC Blake’s evidence that he turned his mind to providing the accused with his right to counsel in the lobby but was concerned about the potential loss of evidence if he and his team remained in the lobby and someone in Unit 1201 became aware of their presence in the building. I found PC Blake to be a credible and reliable witness. I find that PC Blake was presented with a dynamic and unexpected situation in the course of executing the search warrant and acted out of a belief in the urgent need to preserve evidence.

85Although this does not excuse his apparent lack of understanding of the scope of his authority when he commenced his investigative detention of the accused, it is part of the totality of the circumstances. I find that the Charter violations are less serious because PC Blake reasonably believed there was an urgent need to execute the search warrant by entering Unit 1201 as soon as possible to preserve evidence. The entire interaction between PC Blake and the accused prior to the execution of the search warrant was approximately four-to-five minutes, during which PC Blake and his search team were understandably focused on the safe execution of the warrant at Unit 1201.

86The first prong of the Grant analysis only minimally weighs in favour of exclusion of the evidence the police seized in Unit 1201.

(b) Impact of the Violation on Charter-Protected Interests of the Accused

87The accused’s application deals only with exclusion of the evidence discovered in the apartment. As stated, the Crown undertakes not to rely on the accused’s answers to police questioning while under detention, which I have found to constitute a s. 8 breach, to connect him to Unit 1201. Furthermore, the Crown will not adduce at trial any other evidence seized from the accused during his detention or arrest, including the key for the apartment.

88The authors of Charter Remedies in Criminal Cases state:

The presence or absence of a causal connection between the Charter violation and the evidence to be excluded is an important consideration in assessing the impact. If the violation did not meaningfully contribute to the acquisition of the evidence, then the impact of the violation is less.⁴¹

89In Grant, the SCC addressed the concept of discoverability and its relevance to the second prong of the s. 24(2) analysis:

Discoverability retains a useful role, however, in assessing the actual impact of the breach on the protected interests of the accused. It allows the court to assess the strength of the causal connection between the Charter-infringing self-incrimination and the resultant evidence. The more likely it is that the evidence would have been obtained even without the statement, the lesser the impact of the breach on the accused’s underlying interest against self-incrimination. The converse, of course, is also true. On the other hand, in cases where it cannot be determined with any confidence whether evidence would have been discovered in absence of the statement, discoverability will have no impact on the s. 24(2) inquiry.⁴²

90There is no connection between the s. 8 Charter violation, which resulted in the seizure of evidence connecting the accused to Unit 1201, and the resultant evidence discovered within the apartment. The accused’s statement to PC Blake that he was a tenant in Unit 1201 did not cause the police to enter and search the apartment. The police would have executed the search warrant whatever response the accused gave to PC Blake’s question “what apartment are you coming from?”.

91Similarly, it cannot be said that the police would not have discovered the evidence in the apartment “but for” the violation of the informational component of s. 10(b) of the Charter. In Grant, the SCC said, “[t]he failure to advise of the right to counsel undermines the detainee’s right to make a meaningful and informed choice whether to speak, the related right to silence, and, most fundamentally, the protection against testimonial self-incrimination”.⁴³ While the violation of the accused’s s. 10(b) right may have resulted in his self-incriminatory statement that he was a tenant at Unit 1201, that is not the evidence the accused seeks to have excluded on this application. No causal connection exists between the s. 10(b) infringement and the discovery of the evidence within the apartment after the lawful execution of the search warrant.

92The impact of the violations of the accused’s ss. 8 and 10(b) Charter rights was minimal. While the accused was left uninformed of his right to seek the lifeline of legal advice, that breach only lasted approximately six minutes during the time that he was lawfully detained for investigative purposes. He was then informed of his right to counsel. The Crown undertakes not to rely on any evidence obtained during that brief detention and his subsequent arrest to connect him to the evidence found in Unit 1201. The second prong of the Grant analysis weakly supports exclusion of the evidence located in Unit 1201.⁴⁴

(c) Societal Interest in a Trial on the Merits

93The public has an interest in having cases adjudicated on their merits. Society’s interests focus on the truth-seeking function of the criminal trial.⁴⁵ At this stage of the analysis, the Court considers factors such as the reliability of the evidence, the importance of the evidence to the Crown’s case, and the seriousness of the alleged offence.⁴⁶ In Grant, the SCC recognized that the seriousness of the charge cuts both ways, saying that, “while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high”.⁴⁷ Therefore, the seriousness of the charge is a proper consideration but it must not be given undue weight in the analysis.

94The items found within Unit 1201 can all be characterized as highly reliable evidence and essential to a determination of the accused’s charges on the merits. The charges are very serious. They involve substantial quantities of controlled substances alleged to be in the accused’s possession for the purpose of trafficking. The hard drugs located within the apartment have caused devastating consequences to communities plagued by addiction, adverse health effects and death by overdose, as well as various recognized indirect effects.⁴⁸

95In the accused’s case, society’s interest in a trial on the merits is high, and the truth-seeking function would be undermined by exclusion of the reliable evidence which is essential to the Crown’s case.

96This prong of the Grant analysis pulls strongly toward admission of the evidence found within Unit 1201.

(d) The Balancing

97To sum up, the police conduct was not egregious and only minimally weighs in favour of exclusion of the evidence located within Unit 1201. The impact of the Charter breaches on the accused’s protected interests was minimal, weakly supporting exclusion of the evidence. Finally, the evidence is reliable, and its value is considerable to a determination on the merits of the very serious charges, which weighs strongly in favour of admission.

98Taking a long-term view of the repute of the administration of justice, the balance favours admission of the evidence in this case. In the eyes of informed members of the public, the repute of the administration of justice would be tarnished if the evidence, which was obtained as a result of the execution of a validly issued search warrant, was excluded at trial due to the violations of the accused’s ss. 8 and 10(b) Charter rights that I have found in this case.

Conclusion

99I find that there were infringements of the accused’s ss. 8 and 10(b) Charter rights but that those breaches do not result in exclusion of the evidence that the police located when they executed the search warrant at 151 Hughson Street South, Unit 1201, in Hamilton. The evidence is admissible at the trial of the accused.

Footnotes

1. 1On August 8, 2025, I dismissed the accused’s Charter application and advised that I would provide written reasons. These are my written reasons.
2. 2Detention, Arrest, and the Right to Counsel, Davin Michael Garg and Anil Kapoor, Toronto, Ont.: Emond Montgomery Publications Limited, 2025, Chapter 3, p. 85.
3. 3R. v. Chehil, 2013 SCC 49, at para. 27.
4. 4Ibid, at para. 29.
5. 5Ibid, at para. 29.
6. 6Ibid, at para. 29.
7. 7R. v. Mann, 2004 SCC 52, at para. 45 (emphasis added).
8. 8Detention, Arrest, and the Right to Counsel, supra, Chapter 3, p. 87.
9. 9R. v. Mann, supra, at para. 34.
10. 10Detention, Arrest, and the Right to Counsel, supra, Chapter 3, p. 88 (citations omitted).
11. 11R. v. Gelowitz, 2023 BCSC 1170.
12. 12Ibid, at para. 129.
13. 13Detention, Arrest, and the Right to Counsel, supra, Chapter 10, p. 344.
14. 14R. v. Suberu, 2009 SCC 33, at para. 2.
15. 15Ibid, at para. 40.
16. 16See Detention, Arrest, and the Right to Counsel, supra, Chapter 10, pp. 346-347.
17. 17R. v. McKinnon, 2016 ONSC 6143.
18. 18R. v. Harris, 2007 ONCA 574.
19. 19Ibid, at para. 26.
20. 20Ibid, at para. 32.
21. 21Ibid, at para. 32.
22. 22Ibid, at para. 33.
23. 23Ibid, at para. 34 (emphasis added).
24. 24Ibid, at para. 40.
25. 25Charter Remedies in Criminal Cases, Second Edition, Matthew Asma and Matthew Gourlay, Toronto, Ont.: Emond Montgomery Publications Limited, 2023, Chapter 2, p. 31.
26. 26R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 188 C.C.C. (3d) 289 (Ont. C.A.), at para. 46; R. v. Pino, 2016 ONCA 389, at paras. 56 and 72.
27. 27R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980 at para. 55; R. v. Plaha, ibid, at para. 45; R. v. Pino, ibid, at paras. 52 and 72.
28. 28See s. 24(1) of the Charter; R. v. Persaud, 2016 ONSC 8110, at para. 200.
29. 29See s. 24(2) of the Charter; R. v. Alcantara, 2015 ABCA 259, at para. 267.
30. 30R. v. Plaha, supra, at para. 45; R. v. Pino, supra, at paras. 54 and 72.
31. 31R. v. Strachan, supra, at para. 55; R. v. Plaha, supra, at para. 45; R. v. Pino, supra, at paras. 52 and 72.
32. 32R. v. Plaha, supra, at para. 45; R. v. Pino, supra, at paras. 55 and 72. The summary of the “obtained in a manner” threshold from footnotes 26 to 32 is taken from Charter Remedies in Criminal Cases, Second Edition, supra, Chapter 2, pp. 33-34.
33. 33R. v. Strachan, supra, at para. 55.
34. 34R. v. Daye, 2022 ONCA 675, at para. 8. See also R. v. Do, 2019 ONCA 482.
35. 35Charter Remedies in Criminal Cases, Second Edition, supra, Chapter 2, pp. 30-31.
36. 36R. v. Caron, 2011 BCCA 56, at paras. 41-42 (summarizing a series of SCC decisions).
37. 37Charter Remedies in Criminal Cases, Second Edition, supra, Chapter 2, pp. 45-46; R. v. Caron, ibid, at paras. 41-42.
38. 38R. v. Buhay, 2003 SCC 30, at para. 59.
39. 39R. v. Grant, 2009 SCC 32, at para. 75.
40. 40R. v. Booth, 2019 ONCA 970, at para. 121.
41. 41Charter Remedies in Criminal Cases, supra, Chapter 2, p. 52, citing R. v. Grant, supra, at para 122.
42. 42R. v. Grant, supra, at para. 122.
43. 43Ibid, at para. 95.
44. 44R. v. Zacharias, 2023 SCC 30, at para. 75.
45. 45Charter Remedies in Criminal Cases, supra, Chapter 2, p. 55.
46. 46R. v. McColman, 2023 SCC 8, at paras. 69-73.
47. 47R. v. Grant, supra, at para. 84.
48. 48R. v. Parranto, 2021 SCC 46, at paras. 73 and 87-92.