Court File and Parties

COURT FILE NO.: CR-19-30000746-0000 DATE: 20230531

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – JESSE BECKLES, JAHLINDO SINCLAIR and MAHAD MOHAMED Defendants/Applicants

COUNSEL: D. Mitchell and K. Hebert, for the Crown/Responding Party M. DiSabatino and S. Jeethan, for the Defendant/Applicant Jesse Beckles M. Chernovsky, for the Defendant/Applicant Jahlindo Sinclair R. Kodsy, for the Defendant/Applicant Jesse Mahad Mohamed

HEARD: March 27, 28, 29, 30 and 31, and April 12, 2023

MOLLOY J.:

REASONS FOR DECISION

A. INTRODUCTION

[1] On the evening of November 21, 2020, three young black males walked out of an apartment building on O’Connor Drive in Toronto and got into the back seat of a Mercedes, which was waiting at the side of the road. Before the Mercedes could leave, it was pulled over by two Toronto police officers. The officers told the three young men in the backseat that they were being investigated because they matched the description of suspects in a recent nearby robbery. The detained persons were asked to provide identification. They identified themselves as Jesse Beckles, Jahlindo Sinclair, and Mahad Mohamed. The officers then took steps to verify that information.

[2] The driver of the Mercedes was operating it as a Lyft vehicle. He told the officers he wanted to leave and would cancel the fare so the three passengers would not be charged. The officers therefore removed all three passengers from the vehicle and continued to detain them by the side of the road as they waited for police computer searches on their identification. The Lyft driver pulled out to leave, but another officer (who had just arrived on scene) ordered him to stop. With the permission of the driver, officers searched the backseat of the Lyft, where they found a loaded handgun. All three young men were arrested for possession of the firearm.

[3] Subsequently, they were also charged with having committed two armed robberies earlier that same day.

[4] All three defendants apply to exclude the evidence of the gun and their clothing as having been obtained in violation of their rights under ss. 8, 9, 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms.

[5] At the conclusion of a one-week hearing I reserved my decision. On April 12, 2023, I ruled that the evidence was admissible at trial and provided brief oral reasons for that decision. I advised that more detailed written reasons would be provided in due course. Those reasons are set out below.

B. ISSUES RAISED BY THE DEFENCE

[6] The defence submits that the officers who stopped the three defendants did not have a subjective or objective basis for doing so, and that their detention was therefore arbitrary in breach of s. 9 of the Charter. Alternatively, they argue that even if the detention started out as lawful, it continued for too long and without a proper basis and thereby became arbitrary. The Crown agrees that the defendants were detained, but submits that the detention was lawful and did not ever become arbitrary.

[7] When the officers initially stopped the Lyft vehicle they advised the three defendants why they were being detained. However, they failed to advise them of their rights to counsel, which is conceded by the Crown to be a breach of s. 10(a) of the Charter.

[8] The defence challenges the seizure of the firearm from the back of the Lyft vehicle as being unreasonable and unauthorized, in breach of s. 8 of the Charter. The Crown argues that: the three defendants have no standing to challenge the seizure of the gun; the gun was abandoned; and, in any event, the owner of the vehicle provided a valid consent for the search and seizure in question.

[9] Although the defence initially challenged the search of a nearby apartment unit by police officers, that issue was abandoned during argument.

[10] The defence takes the position that the police unreasonably delayed putting the three defendants in touch with legal counsel in breach of s. 10(b) of the Charter.

[11] The defence further submits that the police improperly channeled the defendants into choosing to speak to duty counsel, rather than providing them with other options more in keeping with their right to speak to counsel of their choice. This is said to be a breach of s. 10(b) of the Charter, and relates to the standard form of the rights to counsel read to the defendants from the officers’ memo books, as well as to alleged restrictions on their choices at the police station.

[12] The Crown submits there was no breach of s. 10(b) of the Charter.

[13] The defence seeks to have the evidence excluded from trial, pursuant to s. 24(2) of the Charter. The defence relies on the number and extent of the breaches, the systemic nature of those breaches, and on the allegation that the officers who first detained these three young men lied under oath at the hearing before me. Notwithstanding the conceded breach of s. 10(a), the Crown submits that the evidence is admissible under the s. 24(2) test established in R. v. Grant, 2009 SCC 32.

C. BACKGROUND FACTS

[14] There were two armed robberies of pharmacies in the east end of Toronto on the afternoon of Saturday, November 21, 2020. The first robbery was at 3:25 p.m. at an IDA pharmacy at 1801 Eglinton Avenue East. The second was at 4:54 p.m. and involved the Main Drug Mart Pharmacy located at 1180 Victoria Park Avenue. Both robberies were committed in a similar manner – what was described as a “blitz style” attack perpetrated by several young black males. High resolution video surveillance cameras recorded both events.

[15] At the first robbery, witnesses in the pharmacy reported seeing three black male, who demanded cash and Percocet. One of them had a handgun. After obtaining drugs and cash, they fled on foot. Another witness reported seeing four black males running from the area and getting into a 2014 silver Tiguan. The descriptions of two of the suspects obtained from witnesses were:

• black male, wearing a black hoodie with the hood up tight around his face, and a black surgical mask; and
• black male, wearing a white hoodie with stripes, black pants, and a surgical mask.

[16] The second robbery was reported as involving 4 to 5 suspects, all of whom were described as black males between the ages of 15 and 20. The first radio call was received at 55 Division while the robbery was still in progress. One of the perpetrators hit a 55-year-old pharmacist in the head with a handgun, causing her head to bleed. The robbers fled on foot, after taking $1,900 in cash and a cellphone. The descriptions of the suspects included the following:

• black male, wearing a blue hoodie and light blue jeans; and
• black male, wearing a black sweater and black jeans.

[17] Officers from 55 Division (where the second robbery occurred) began combing the area in patrol cars, searching for suspects who fit the description and for an old model silver Tiguan. Several of those officers who testified before me noted that it was a cold and dark night and that there was very little foot traffic. Officers received information about a silver Tiguan involved in a fail-to-remain collision, and also about a silver Tiguan with front end damage speeding north on a side street. At 5:22 p.m., officers found what they believed to be the Tiguan involved in the robberies. It had front end damage and appeared to have been abandoned. It was parked in an alley in the vicinity of St. Clair Avenue and O’Connor Drive behind a row of low-rise apartment buildings at 994 and 996 O’Connor. This was estimated to be about one to one and a half kilometers from the robbery. This information was broadcast to officers searching the area, including P.C. Matthew McCarroll and D.C. Daniel Lymer, who were in uniform patrolling in a marked scout car.

[18] At 5:29 p.m., Officers Lymer and McCarroll were headed south on O’Connor when they saw three individuals walking from the area of 994 O’Connor towards a black Mercedes stopped at the side of the road. They decided to investigate. Officer McCarroll pulled their scout car to the front of the Mercedes, blocking it from leaving. Officer Lymer approached the Mercedes on the driver’s side, asked him to roll down all the windows, and learned almost immediately that the driver was operating as a Lyft vehicle for hire. Officer Lymer proceeded to question the three occupants in the back seat, and Officer McCarroll joined shortly afterwards, asking questions of the occupant on the rear passenger side. This set in motion the chain of events leading to the arrest of the three defendants.

D. THE DETENTION WAS LAWFUL

General Legal Principles

[19] There is no question that the three defendants were detained within the meaning of s. 9 of the Charter. This is conceded by the Crown. The issue that arises is whether that detention was “arbitrary” and thereby a breach of s. 9.

[20] Police officers acting in the execution of their duties are permitted to detain individuals for investigative purposes. For a detention to be lawful, there must be reasonable grounds to suspect that the individual detained is connected to a particular crime and that detention is necessary for the purposes of investigation. The standard required to justify a detention is lower than the reasonable and probable grounds required to make an arrest, but must be more than a mere hunch. There is both a subjective and objective component: the officer must personally believe there is reason to suspect the person’s involvement in a crime, and that suspicion must be objectively reasonable in all the circumstances. As stated by the Supreme Court of Canada in R. v. Mann, 2004 SCC 52:

The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The 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. Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test.

Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest.

[21] In R. v. MacKenzie, 2013 SCC 50, Moldaver J. provided a helpful explanation of the distinction between reasonable grounds to suspect (as required for a lawful detention) and reasonable grounds to believe (as required for a lawful arrest), stating that grounds to arrest are a matter of probabilities, whereas grounds to detain are a matter of possibilities.

[22] The nature and length of a detention as well as the nature of the crime being investigated may be factors in determining whether a particular investigative detention is justified. The longer the detention and the greater the intrusion on the individual’s freedom, the more likely the detention will be seen as unjustified. Likewise, extensive investigative detention for a relatively minor offence will be less likely to meet the test than a detention in relation to a serious crime or one that involves a threat to community safety. Doherty J.A. held in R. v. McGuffie, 2016 ONCA 365:

The duration and nature of a detention justified as an investigative detention must be tailored to the investigative purpose of the detention and the circumstances in which the detention occurs. A brief detention on the street to question an individual implicated in a criminal investigation involving ongoing events may be justifiable under the Mann criteria, but under those same criteria imprisonment in a police cruiser while handcuffed for some indefinite period while an officer carries out other aspects of a criminal investigation could not be justified. The police cannot use investigative detention as an excuse for holding suspects while the police search for evidence that might justify the arrest of the suspect. Nor does investigative detention mean that the police can detain suspects indefinitely while they carry out their investigation.

[23] In R. v. Clayton, 2007 SCC 32, the Supreme Court of Canada agreed with the trial judge’s reliance on “the seriousness of the offences being investigated and the potential risk to public safety” in concluding that the initial detention of the accused in that case was justifiable. Although reversing the Ontario Court of Appeal’s ultimate conclusion that the detention in Clayton was a breach of s. 9 of the Charter, the Supreme Court specifically approved and adopted the portion of Doherty J.A.’s reasons dealing with the seriousness of the offence and danger to the public as follows:

Doherty J.A. acknowledged that the purpose of stopping the car was “to apprehend individuals in possession of dangerous weapons and seize those weapons before they could be used in criminal activity to harm others” (para. 41). Significantly, he also accepted that the information received by the police represented “a significant and undeniable danger”:

Criminal conduct involving the use of firearms, especially handguns, is a serious and growing societal danger. The law abiding segment of the community expects the police to react swiftly and decisively to seize illegal firearms and arrest those in possession of them. The risk posed to the community by those in possession of handguns gives an added significance to police efforts to seize those weapons and apprehend those in possession of them beyond the always important police duty to investigate and prevent criminal activity. [para. 41]

(See also Reference re Firearms Act (Can.), 2000 SCC 31, at para. 45; R. v. Felawka, at p. 211.)

Subjective Grounds

[24] Both officers involved in the initial detention testified at the hearing before me. I am completely satisfied that each of them subjectively believed that the three men getting into the Mercedes might be the robbers they were searching for and that is why they stopped them. Just seven minutes earlier, the officers had received information that the silver Tiguan had been found abandoned within a short walking distance from where these three men emerged. Upon hearing that information, they drove to the area, scanning the streets for individuals on foot. As they drove along O’Connor, they saw a black Mercedes parked at the curb on the west side of O’Connor just ahead of them, with its four-way flashers on. As they approached, they also saw three people emerge from the area of 994-996 O’Connor, walk towards the Mercedes, and get into the back seat of the car. Although the officers would have seen these individuals for only a few seconds before they got into the car, I accept their evidence that they appeared to the officers to be young black males in the approximate age range given for the robbers.

[25] The officers could not see inside the Mercedes, but there was clearly at least one other person inside (the driver) and possibly a fifth person in the front passenger seat. The officers also knew that if they did not act quickly, the opportunity to investigate and identify these men could easily be lost forever.

[26] P.C. McCarroll was the more junior of the two officers who made the initial stop. His impression upon seeing these three men was that they were wearing dark clothing, with hoods up, and face masks. He thought they matched the age range, general description, and race of the suspects. Given that Toronto was in the midst of the COVID-19 pandemic in November 2020, there was nothing sinister about people wearing masks, but this was also consistent with the description of the suspects. He stopped to let his partner out, and then pulled the police cruiser beside and slightly in front of the Mercedes, preventing it from leaving. He also broadcast to dispatch that they were stopping a vehicle at this location and provided the license plate number. This was at 5:29 p.m.

[27] D.C. Lymer was in the passenger seat of the cruiser as it headed south on O’Connor. He also noted the parked Mercedes and the three men approaching it. He also concluded that they could be three of the men involved in the pharmacy robberies. He believed them to be young black men between the age range described (15 to 20). He noted that two of the men were wearing dark clothing and one was wearing a lighter grey top. He was particularly mindful that the Tiguan get-away car had been found abandoned in very close proximity to these men and that there was very little other foot traffic around, so these three men stood out. He was aware that there were at least four, and possibly five, suspects involved in the robbery. However, the windows of the Mercedes were tinted so he thought it was possible there were two more people in the car.

[28] At the preliminary hearing, D.C. Lymer had stated that at the time of the initial stop, he was also thinking that the locations in the 900 block on O’Connor were known by police to be involved in drug trafficking. In his examination-in-chief at the hearing before me, he did not mention this as a factor influencing his decision to stop and investigate the three men. When this was put to him in cross-examination, he stated that he had simply forgotten to mention it earlier. He denied that he had stopped these men because they were wearing hoodies outside a residence known for drug activity and he was hoping to find something. I accept that explanation.

[29] There were quite a few officers on the road that evening combing the area looking for the individuals who had brazenly robbed a nearby pharmacy and pistol-whipped a 55-year-old female pharmacist. Locating these suspects was a high priority for all those police officers, including Officers Lymer and McCarroll. During the intensity of that search, they would not have been interested in randomly stopping people to see if they had drugs on them. Further, they had no interest in wasting their time by stopping people who they did not think could be suspects. I have no doubt at all that both officers, in their own minds, believed these three men might have been involved in the robbery, and that is why they stopped them. The real question is whether there were objectively reasonable grounds for an investigative detention, and whether those grounds disappeared upon further investigation.

Objective Grounds

[30] The next question is whether there was an objectively reasonable basis to stop the Mercedes to investigate the possibility that the suspects from the robbery were inside. In my view, the initial stop was justified. Although there was not much opportunity to observe these three individuals, by the same token they were about to drive away. A decision as to whether to investigate further had to made in in seconds. I accept the officers’ evidence that these appeared to be three young black men in the age range of the suspects. They were walking away from the area where the get-away car had been abandoned just one block away and were still within the general area of where the last robbery had occurred. This geographic factor is important and objective.

[31] The fact that this area was known by police to be frequented by drug dealers is also relevant. Drug-dealing and robberies of pharmacies are not unconnected, particularly in this case where the robbers were demanding cash and Percocet and fled with a quantity of drugs.

[32] The fact that only three men could be seen getting into the car is irrelevant to whether there were grounds to detain. All three got into the back seat, so there were at least four men in the car counting the driver, and there could easily have been five. Furthermore, it was easily possible that one or more of the perpetrators had split from the rest of the group and gone their own way.

[33] Given the urgency of the situation and the limited opportunity to observe, I am not troubled at this stage as to whether the clothing worn by the three men getting into the car could be seen to be an exact match for the suspects. Indeed, this was a factor requiring further investigation.

[34] In R. v. Clayton, the Supreme Court of Canada held that whether a particular detention is justified must be assessed based on the totality of the circumstances, including the seriousness of the offence under investigation and the threat to public safety. In that case, a 911 caller reported that four of about ten “black guys” in the parking lot of a strip club were openly displaying handguns. He described four vehicles connected to those men, one of which had already left the parking lot. Police officers converged on the area and blocked the two exits from the parking lot. Two officers stopped the first car leaving the parking lot, ordered the two black male occupants out of the car and searched them. The car they were driving was not one of the four vehicles identified by the 911 caller. One of the detainees tried to run, but was quickly apprehended and found to be in possession of a handgun. Both men were charged with possession of the gun. At trial, Durno J. held that the initial stop was lawful. The trial judge also found that the continued detention after the initial stop was not lawful, but nevertheless admitted the guns in evidence and convicted both accused. On appeal, Doherty J.A. (writing for a unanimous court) found that the initial stop was unlawful, in part because the police should have tailored their response to stop only the four vehicles identified by the 911 caller. The Supreme Court of Canada disagreed with Doherty J.A. on this point, upholding the trial judge’s decision that “on the information available to police, they were justified in stopping ‘all vehicles’ emerging from the parking lot and ‘would have been derelict in their duties had they sat by and watched vehicles leave’.” Abella J. (writing for the majority) held:

In the totality of the circumstances, therefore, the initial detention in this case was reasonably necessary to respond to the seriousness of the offence and the threat to the police’s and public’s safety inherent in the presence of prohibited weapons in a public place, and was temporally, geographically and logistically responsive to the circumstances known by the police when it was set up. The initial stop was consequently a justifiable use of police powers associated with the police duty to investigate the offences described by the 911 caller and did not represent an arbitrary detention contrary to s. 9 of the Charter.

[35] The principles established in Clayton are instructive in this case. It is the totality of the circumstances that governs. These were serious offences involving firearms and violence. The men were seen getting into the Mercedes in close proximity geographically to the abandoned get-away Tiguan, within 7 minutes of when that car was found and 35 minutes after the second robbery. If immediate steps were not taken to stop the vehicle and investigate the occupants, the opportunity to apprehend possible suspects would be lost. In my view, the initial stop was “temporally, geographically and logistically responsive to the circumstances known by the police” at that time, just as was the case in Clayton. The nature of the stop was minimally intrusive. If upon further investigation the individuals in the car did not match the description of the suspects, they could be immediately released, resulting in no more than a minute or so delay before they would be on their way. Given the public safety issues involved, this was an objectively reasonable step to take, based on an objectively reasonable suspicion.

[36] Accordingly, I find no breach of s. 9 of the Charter with respect to the initial stop.

Emerging Information Did Not Change the Nature of the Detention

[37] D.C. Lymer went to the driver’s side of the car. He immediately learned from the driver that this was a Lyft vehicle, which the three men in the back had hired. He asked the driver to lower all of the windows, which the driver did. D.C. Lymer then proceeded to speak to the man sitting immediately behind the driver, who was Mr. Sinclair. He advised Mr. Sinclair that they were investigating a robbery and that he and his companions matched the description of the suspects. He asked Mr. Sinclair to identify himself and provide proof of identity. Meanwhile, P.C. McCarroll went to the passenger side of the Mercedes and provided that same information to the two other passengers (Mr. Beckles in the middle and Mr. Mohamad by the door).

[38] At this point, both officers had a better opportunity to see the clothing that the three men were wearing, at least from the waist up. They were black men who appeared to be within the age range of the suspects. The officers testified that, having seen the three men closer up and in a better light, that were still of the view that they might be the suspects involved in the robbery. I believe their evidence as to this honestly held belief. Further, I find it to be objectively reasonable in the circumstances.

[39] All the police were attempting to do at this point was determine the identity of these three men. Again, this was a very minimal intrusion in all the circumstances. The fact that there were only three men, as opposed to four or five, is not a reason to exclude them or remove the reasonable suspicion in the officers’ minds. There would be no reason to think that all the suspects would necessarily remain together.

[40] The defence placed considerable reliance on differences between the clothing worn by the three accused and the clothing described by witnesses to the robberies. Both officers testified that they took into account the possibility that the suspects had changed clothing and also their experience with the frailty of eyewitness descriptions of details in appearance, such as the colour of clothing worn by perpetrators. As any regular participant in the criminal trial process is aware, eyewitness descriptions are notoriously unreliable. If the three men in the car had been wearing clothes identical to the descriptions provided, that would provide even stronger grounds to detain them. However, the variations that existed did not reasonably exclude them as suspects.

[41] In R. v. Bejarano-Flores, 2020 ONCA 200, security officers at York University were notified that a man had been seen in the food court with a gun. The suspect was seen entering a green and orange Beck taxi van and the route taken by the van was tracked by security cameras. This information was provided to police in a 911 call placed by the university security officer. In the immediate vicinity of where the suspect’s taxi van was reported to be, the police stopped a Beck taxi van with a lone male occupant. He matched the physical description provided for the gun suspect (male, medium build, early 20’s, 5’6”). However, the officer who made the stop (who was himself Hispanic) noted that the person he stopped was also Hispanic, whereas the witness had described the suspect as being Black. Further, the witness had given a very detailed description of the clothing worn by the man with the gun, and this did not match the clothing of the person stopped, although it was similar. The officer nevertheless concluded that he had a reasonable suspicion that this was the man with the gun and he removed him from the taxi van and searched him and his knapsack (which contained a gun). The defence conceded that the initial stop of the Beck taxi van was lawful given its unique appearance and its proximity, but argued that upon finding that the detainee was Hispanic and that his clothing did not match, the detention should not have proceeded any further. The trial judge (Kelly Byrne J.) held that the officer was entitled to rely upon his years of experience as a police officer with respect to common inaccuracies in descriptions given by witnesses. The Court of Appeal upheld that determination. Gillese J.A. (for a unanimous court) held:

It will be recalled that, at trial, DC Rand explained why the discrepancies in skin colour and clothing did not undermine his suspicion that the appellant was the gun suspect. During his many years as a police officer, he had worked dozens of gun calls and learned that eye witnesses are often mistaken when they try to describe a person they have just seen. He explained that there are many factors that can impair a witness’s ability to accurately observe and retain information about eyewitness identifications. In this case, DC Rand knew almost nothing about the eyewitness’s capacity to observe the gun suspect. And, in his experience, it is not uncommon for a suspect to change clothes while police are in pursuit.

The trial judge found that DC Rand was entitled to rely on his 18 years of police experience in assessing how much weight to attach to the physical descriptors. She also found his conclusion that such descriptions can often be wrong was reasonable in the circumstances where he knew nothing of the perspective or ability of the witness who had given the description of the gun suspect.

I see no error in the trial judge’s findings on this matter. The known frailties of identification evidence have been identified both in social science literature and in Canadian jurisprudence: see, for example, R. v. Hay, 2013 SCC 61, at para. 40, R. v. Hibbert, 2002 SCC 39, at paras. 78-79. Further, the trial judge was obliged to determine whether a reasonable person “standing in DC Rand’s shoes” would have had a reasonable suspicion that the appellant was the gun suspect. In making that determination, it was open to the trial judge to consider DC Rand’s policing background and to find, as she did, that he was entitled to rely on his 18 years of policing experience when assessing how much weight to give to the non-matching physical descriptors.

[Emphasis added.]

[42] In this case, the three men in the car matched the immutable characteristics of the suspects in terms of age, sex and race. Some of their clothing was different from the descriptions given by witnesses; some of it was similar. Mr. Beckles was wearing a black puffy winter jacket, a blue surgical mask and light blue jeans. Mr. Sinclair was wearing a black winter vest, and a green and black camouflage top and pants. Mr. Mohamed was wearing a light gray hooded sweater and a black surgical mask. There is no perfect match between the clothing of the three accused and any of the descriptions of the suspects. One of the suspects was described as wearing a blue hoodie and light blue jeans. Another suspect was said to be wearing a black jacket. Mr. Beckles was wearing light blue jeans, but with a black puffy winter jacket. Could he have added the jacket over the blue hoodie after the robbery? Or could he be the suspect described as wearing a black jacket, without any description of the pants? Another suspect was described as wearing a black sweater and black jeans. Yet another description was of a black hoodie with a black surgical mask. Could that witness have been confused as between a hoodie and a jacket? Could the black sweater and black jeans description simply be a mistaken observation of dark camouflage clothing with a black vest over the top? Are the descriptions of a hoodie and a sweater referring to the same item of apparel? All of these are possible explanations, given the frailties of eyewitness accounts generally and the opportunity for any of the suspects to have changed or added layers of clothing. Most importantly, there was nothing about these three men that would necessarily exclude them from being suspects.

[43] In my opinion, it was reasonable for the officers to take their experience into account in determining how critical the clothing descriptors were, particularly given the fact that the suspects would have had an opportunity to change their clothes. In my view, the detention continued to be objectively reasonable notwithstanding that some articles of clothing were not an exact match to the descriptions received from eyewitnesses.

[44] In these circumstances, it was reasonable for the police officers to obtain some information from the three men in the Lyft vehicle to determine who they were and where they had been. All three men were cooperative in providing this information to the police. Two of them produced identification, although none of them had photo identification. One of them (Mr. Beckles) advised that he was on bail and wearing an ankle monitor. The officers wanted to verify the accuracy of the identification provided by checking the police database which would have photographs of the individuals they could compare to the men in the car. Again, these officers had considerable experience with being given false names and false identification. In my view it was reasonable to check this information before determining that these three men should be released.

[45] Unfortunately, the scout car Officers Lymer and McCarroll were using did not have an onboard police computer. They radioed for another scout car with a computer to come to the scene. That car arrived at 5:35 p.m., which is six minutes from when the Officers and Lymer first saw the three men approach and enter the Lyft Mercedes. P.C. El-Halabi was driving and P.C. Ahmed was in the passenger seat. P.C. McCarroll went to the scout car with the identification cards and information from the three men in the back of the Lyft and proceeded to start running the checks. P.C. Ahmed went to the side of the Mercedes to take P.C. McCarroll’s spot at the side of the Mercedes.

[46] Meanwhile, the Lyft driver was not happy being kept at the side of the road with these three men in the back of his vehicle. He heard that the police suspected them of being involved in a robbery. He also heard that one of them was on bail and wearing an ankle bracelet GPS. He wanted these men out of his vehicle. One can hardly blame him. He asked D.C. Lymer if he could leave. He said he would cancel the fare so that the passengers would not be charged anything for the ride. There was no basis to continue detaining the driver. Therefore, the three men were asked to get out of the vehicle so that the driver could leave.

[47] Based on the video camera footage from within the Lyft, it can be determined that the total time the accused were detained inside the Lyft Mercedes was approximately six minutes. Their detention continued by the side of the road after they were removed from the car, as security checks were still being run on the police computer. This continued to be reasonable for all the same reasons previously stated. Now that they were on the street and standing up, the officers on scene did a pat-down search of all three men for their own safety. D.C. Lymer had not done this earlier as all three men were seated in the back of the car with an officer on both sides of the vehicle and all were being cooperative. However, he took the position that officer safety was a more significant issue once the three men were outside the vehicle. I agree. That search did not take long, but did extend the detention briefly. I find this to be reasonable as well.

[48] Up to this point, there was nothing about the continued detention that rendered it objectively unreasonable or arbitrary. The same objective basis remained. However, that was about to change. By the time the three accused were removed from the Lyft, other officers had arrived on scene. They were using their cellphones to check the appearance and clothing of the accused against still photos they had obtained from another police division, taken from video surveillance footage of the earlier of the two robberies. Those images would be more reliable than descriptions given by eyewitnesses. Ironically, they were about to have a discussion with D.C. Lymer about releasing the three men, based on the differences in clothing, when events took an entirely different turn.

[49] Back on the street, the driver of the Mercedes was about to leave and had started moving his vehicle. P.C. Ahmed ran after him and asked him to return so that he could be sure no evidence had been left behind in the backseat. With the permission of the driver, he searched the backseat and found a handgun on the floor. He yelled out “Gun! Gun!” and all three accused were immediately arrested. That happened at 5:43 p.m. The total time from when Officers Lymer and McCarroll decided to stop the Mercedes to when all three accused were lawfully arrested was 14 minutes.

[50] In all of the circumstances, as I have reviewed above, I find that throughout those 14 minutes the officers involved had a subjective suspicion that these 3 men were involved in the robberies. Further, I find that the objective aspect of the test is also met for the entire 14 minutes. Accordingly, I find no arbitrary detention and no violation of s. 9 of the Charter.

[51] Before leaving this issue, I will deal with a point raised by the defence in cross-examination of Officers Lymer and McCarroll. Both officers testified that at the time of this incident, they believed that persons who were detained by police for purposes of investigation were required by law to identify themselves. P.C. Lymer testified that he knew the detained person had a right to remain silent, but also believed that he could detain a person until his investigation was complete and if that person refused to identify himself, then he would be placed under arrest. When asked what offence he would arrest the person on, he said that he was unsure and would have called the office for advice. However, he believed the charge would likely be obstructing a peace officer in the execution of his duty. He said this belief was based on his training and 15 years’ experience. P.C. McCarroll also testified that at the time of the events in issue, his understanding was that persons who were detained by police were obliged to identify themselves, failing which they could be arrested and charged with obstructing a peace officer. However, he added that he now understood that this belief was incorrect. Under cross-examination by Mr. Kosky, he said he did not know where he got this mistaken idea from, but that he did not think he was taught to wrongfully arrest people. He said that up to the time of the preliminary hearing, he believed he could arrest detained people if they refused to identify themselves. When asked by Mr. Kosky who told him that he was wrong, the officer replied, “You did.” He explained that after being told this during cross-examination at the preliminary hearing, he went and looked it up and discovered that his own belief was wrong.

[52] Obviously, both officers were wrong in this thinking. However, I find it had no impact on whether s. 9 was breached in this case. Here, all three accused readily complied with the requests for identification, provided their real names, and whatever identification they had on them. Therefore, the issue of what these officers might have done if any of the three accused had refused to provide the information, simply does not come up. Breaches of the Charter are based on police action, not on incorrect opinions of officers on questions of law that did not arise. I will address this issue again in the s. 24(2) analysis where it is somewhat more relevant.

E. BREACH OF THE INFORMATIONAL COMPONENT OF S. 10 UPON DETENTION

[53] Sections 10(a) and (b) of the Charter provide that “[e]veryone 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”.

[54] The rights under s. 10 have both an informational and implementational component. The informational component requires the police to advise a person being detained of the reasons for the detention and of the right to consult counsel without delay. In this case, the officers, in compliance with s. 10(a), immediately told the three accused that they were being detained because they matched the description of suspects in a recent robbery. However, they did not tell them that they had a right to counsel. It is conceded by the Crown that this was a breach of their rights under s. 10(b) of the Charter.

[55] There is, in my opinion, no acceptable explanation for this failure. The officers had ample time to provide this information. For part of the time during the detention, the three accused were just sitting in the car while the police waited, first for a scout car with a computer to arrive, and then as the checks were being run on the identification provided. Providing information about the right to counsel takes only seconds. I recognize that initially there were only two officers dealing with three suspects believed to have been involved in two armed robberies. One of the officers was standing beside the vehicle in a live lane of traffic. There were clear officer safety concerns, but those did not prevent asking the detainees for identification and asking them questions about where they had been. Neither should they have prevented advising the three individuals detained of their rights to counsel. I also note that other officers arrived on scene very quickly, which greatly reduced the concerns about being outnumbered.

[56] While being questioned by D.C. Lymer, Mr. Sinclair asked him if he could call his mother and a lawyer. D.C. Lymer’s response was that the quicker they got information from them, the quicker they would be on their way. This would have been an obvious occasion to advise Mr. Sinclair that in fact he had the right to speak to a lawyer, and yet it was discouraged. I note, however, that D.C. Lymer did not prevent Mr. Sinclair from using his phone and, indeed, the Lyft interior video camera shows that Mr. Sinclair did in fact use his cellphone to call somebody while he was waiting for the police to run their security checks. In cross-examination, D.C. Lymer acknowledged he was aware that lawyers often tell their clients not to say anything to the police and was referred to his preliminary hearing transcript in which he said this “might be a tactic” lawyers used.

F. THE SEIZURE OF THE GUN WAS LAWFUL

[57] I find no breach of s. 8 of the Charter when the police seized the handgun from the back seat of the Lyft for three reasons: (1) the accused had no expectation of privacy for things left in the Lyft, and therefore no standing to assert a Charter breach; (2) Mr. Mohamed abandoned the gun in the car, thereby giving up any privacy right he had; and, (3) the police had a valid consent to search the backseat from the person who owned and controlled the vehicle.

[58] The burden is on the defence to establish standing to assert a s. 8 breach by showing a privacy interest in the object or place searched. See R. v. Mills, 2019 SCC 22, at paras. 12, 36. The accused have failed to establish such a privacy interest. At the time of the search, they were no longer in the vehicle, having been removed at the request of the driver. They had no ownership interest in the vehicle and no right to occupy it. They had no control over it or its contents. Defence counsel argued that the accused did not voluntarily leave the vehicle, but rather were removed from it by the police. This does not change anything. It was the driver who wanted them out of the vehicle, and he was the one with the right to give or withhold permission for others to be there. The driver terminated the fare. The accused no longer had any right to be in the vehicle. They could not have subjectively believed that they had an expectation of privacy in the contents of the car, particularly after they were removed from it. Even if there was evidence of a subjective belief, which there was not, such a belief was not objectively reasonable. None of the indicia for establishing a privacy interest are met. See R. v. Edwards, at paras. 45, 47; R. v. Belnavis, at paras. 20, 25 and 38; R. v. Greer, 2020 ONCA 795, at paras. 87-88, 142. Therefore, I find the accused have no standing to challenge the seizure of the gun by the police.

[59] Further, if there ever was a privacy interest, it was abandoned. The Lyft vehicle was equipped with an interior video camera. Footage from that video was an exhibit at trial, including video of the three accused getting out of the backseat and moving towards the sidewalk. Mr. Mohamed was wearing his pants very low. As he was bending over and moving toward the door, a gun can be seen coming from his pants and moving toward the floor of the car. As this was happening, Mr. Mohamed moved his hand in the direction of the gun. I cannot say definitively whether Mr. Mohamed deliberately shoved the gun out of his pocket towards the floor, or whether his hand movement in the direction of the gun was a reaction to the gun falling out of his pants on its own. It does not matter which version happened. What is clear is that Mr. Mohamed was aware that the gun was now in the backseat of the Lyft vehicle. He nevertheless got out of the car and said nothing, including as the driver of the Lyft started to leave. It is clear that he abandoned the gun and therefore had no further expectation of privacy in it. See R. v. Nesbeth, 2008 ONCA 579, at para. 22.

[60] In addition, before searching the backseat of the Lyft, P.C. Ahmad sought and obtained the permission of the driver to do so. This also renders the search lawful.

[61] I find no breach of s. 8 of the Charter. Any one of these three factors, standing alone, is sufficient to defeat the defence claim that the search of the vehicle and seizure of the gun constituted a s. 8 violation. The gun was lawfully seized.

G. THE STANDARD “RIGHTS TO COUNSEL” GIVEN BY POLICE DOES NOT BREACH THE CHARTER

[62] When the three accused were arrested, they were told the reason for their arrest and were advised of their right to counsel. The officers who provided those rights to counsel read the standard language from the back of the memo book that is standard issue for the Toronto Police Service, as follows:

It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a Legal Aid lawyer. If you are charged with an offence you may apply to the Ontario Legal Aid plan for assistance. 1-800-265-0451 is the number that will put you in contact with the legal aid duty counsel lawyer for free legal advice right now. Do you understand?

[63] The defence position is that this standard language breaches s. 10(b) of the Charter by improperly steering an accused towards duty counsel if he does not know a specific lawyer whom he wants to call. The defence argues that a third option must be provided to every accused, that being the opportunity to choose a lawyer from some sort of list or directory if he does not already know the name of a particular lawyer he wants to consult. The defence submits that, without that third option, accused persons who do not have a lawyer are being improperly steered or “channeled” towards duty counsel, rather than towards some other counsel of their choice.

[64] I am not dealing at this point with the implementational duty of police officers to put an accused person in touch with counsel when the accused asks for that opportunity. Neither am I dealing with how the police should respond to questions from an accused about these rights. I will deal with both these issues later in these reasons. For present purposes, I am merely addressing the standard wording of the right to counsel, which police officers in Toronto are required to provide as soon as practicable after they arrest someone.

[65] It is important to review the genesis of the duty imposed on police officers to advise a person charged with an offence of the availability of a legal aid lawyer to provide immediate and free legal advice. In R. v. Brydges, an accused (who was from Edmonton) was arrested in Manitoba for a second degree murder that had occurred in Edmonton. The arresting officer, who was also from Edmonton, advised the accused of his right to counsel and was asked by the accused if there was legal aid in Manitoba because he could not afford a private lawyer. The officer did not know the answer to that question and asked the accused if there was a reason he needed to talk to a lawyer right then. When the accused responded “not right now,” the officer proceeded to ask him questions and obtained a number of incriminating statements. The Supreme Court of Canada upheld the finding of the trial judge that in this context, the accused was essentially requesting the assistance of counsel, but expressing concerns about his ability to afford that. In those circumstances, the Court held that a purposive interpretation of the s. 10(b) rights required the officer to advise the accused of the existence of free legal advice. Lamer J. (as he then was), went on to hold that this information was sufficiently important that it should be provided in all cases, regardless of whether an accused expressed a wish to speak to counsel or any concern about an inability to pay, stating:

All of this is to reinforce the view that the right to retain and instruct counsel, in modern Canadian society, has come to mean more than the right to retain a lawyer privately. It now also means the right to have access to counsel free of charge where the accused meets certain financial criteria set up by the provincial Legal Aid plan, and the right to have access to immediate, although temporary, advice from duty counsel irrespective of financial status. These considerations, therefore, lead me to the conclusion that as part of the information component of s. 10(b) of the Charter, a detainee should be informed of the existence and availability of the applicable systems of duty counsel and Legal Aid in the jurisdiction, in order to give the detainee a full understanding of the right to retain and instruct counsel.

Having said this, I am not unmindful of the fact that the imposition of this additional duty on the police may cause some concern on their part, but I am of the view that it is the interests of all the participants in the criminal justice system that s. 10(b) of the Charter be given this interpretation. In my view the additional duty is consistent with one of the main purposes underlying the s. 10(b) right which is to facilitate contact with counsel since it is upon arrest or detention that the accused is faced with an immediate need for legal advice especially in respect of how to exercise the right to remain silent. By the same token, however, the immediate need for legal advice means that the right must be exercised with reasonable diligence. The imposition of the additional duty on the police in respect of duty counsel and Legal Aid will, in my view, have implications for the issue of a detainee's reasonable diligence in seeking initial advice of counsel.

[Emphasis added.]

[66] Mindful that this ruling would impose additional duties on police officers, the court in Brydges provided for a transition period of 30 days to give police forces sufficient time to develop the wording for the new cautions, bearing in mind the different circumstances in different provinces. Police forces did exactly that, leading to the development in Ontario of standard rights to counsel information in the very format used by the officers in this case.

[67] One year after Brydges, a police officer in Ontario, equipped with the new format standard wording for rights to counsel, arrested a driver for impaired operation of a motor vehicle. He advised the detainee of his rights to counsel reading from the pre-printed card newly issued to all police officers. Although the card contained the new information required by Brydges about the availability of legal aid and a toll-free number to contact duty counsel, the officer did not read that portion of the information. That case, R. v. Bartle, wound its way to the Supreme Court of Canada along with four other cases with similar fact situations. Lamer C.J. reiterated and expanded upon the Court’s previous ruling in Brydges, emphasizing that the informational component of s. 10(b) required officers to inform detainees not only about the availability of legal aid, but also the availability of duty counsel who could be accessed at all hours through a toll-free number. Again writing for the majority, Lamer C.J. held:

In my opinion, the s. 10(b) caution that the appellant received, both at the roadside and at the police station, failed to convey the necessary sense of immediacy and universal availability of legal assistance. First, when the appellant was arrested at the roadside, he was not told of the existence of the 1-800 number for duty counsel and that he would be allowed to call a lawyer as soon as he arrived at the police station where there were telephones. Although it was subsequently made clear upon arrival at the station that he could call “now”, the appellant had, in the intervening period between detention at the roadside and arrival at the station, made a self-incriminating statement. Second, reference to Legal Aid was confusing in so far as it implied that free legal advice, while available, was contingent on applying for it once charged -- a process which takes time and for which there are qualifying financial requirements. The caution he received failed to communicate the fact that, at the pre-charge stage, a detainee has the opportunity by virtue of the scheme for immediate legal assistance set up by Ontario to speak to duty counsel and to obtain preliminary legal advice before incriminating him- or herself.

The 1-800 number, or at least the existence of a toll-free telephone number, should have been conveyed to the appellant upon his arrest at the roadside even though there were no telephones available. Indeed, the police should have explained to the appellant that, as soon as they reached the police station, he would be permitted to use a telephone for the purpose of calling a lawyer, including duty counsel which was available to give him immediate, free legal advice. It can hardly be described as an undue hardship on police to require them to provide detainees with this basic information, especially when the toll-free number is already printed on their caution cards. I am satisfied that the 1-800 number was part of the informational requirement under s. 10(b) of the Charter. I agree with counsel for the appellant that, in today’s highly technological and computerized world, 1-800 numbers are simple and effective means of conveying the sense of immediacy and universal availability of legal assistance which the majority of this Court in Brydges said must be conveyed as part of the standard s. 10(b) warning in jurisdictions where such a service exists.

[Underlining in original; italics added.]

[68] In R. v. Willier, 2010 SCC 37, the Supreme Court of Canada emphasized that the extent of the s. 10(b) right must be assessed in light of the purpose of the guarantee, stating:

While the right to choose counsel is certainly one facet of the guarantee under s. 10(b), the Charter does not guarantee detainees an absolute right to retain and instruct a particular counsel at the initial investigative stage regardless of the circumstances. What the right to counsel of choice entails must be understood having regard to the purpose of the guarantee.

[69] The purpose of the informational component of s. 10(b) is “to provide detainees an opportunity to mitigate” the “legal disadvantage” they experience upon detention or arrest. In that situation they are “deprived of liberty and in the control of the state, and thus vulnerable to the exercise of its power and in a position of legal jeopardy.” At this juncture, it is important for persons detained to know what their rights and obligations are and to obtain advice from a lawyer on what to expect and how to conduct themselves. The need for legal advice is an immediate one to protect persons charged from self-incrimination and to advise them of the process for obtaining their release, as well as other rights. This type of advice is basic and situational, but it is nonetheless essential to protect the Charter rights of the accused.

[70] It is important to distinguish between what the detained person needs to know upon arrest or detention, and what different rights might arise later. I am dealing here only with the immediate information that must be provided to the person upon arrest or detention. In my view, three critical principles must be addressed in the information provided to detainees about their right to counsel. First, they must be advised of the right to retain and consult counsel of their choice. Second, they must be told of the availability of legal aid for those who cannot afford to retain a lawyer privately. Third, they must be given information about the availability of free legal advice at any time through duty counsel and information about how to access that advice. These are the clear informational rights that emerge from the case authority.

[71] At this preliminary stage, I find there is no requirement to provide any further information than was given in this case. The standard right to counsel advice now in use tells each person under arrest that they have the right to telephone any lawyer they wish. It also advises them of the existence of legal aid, and of the availability of a duty counsel that can provide them with free legal advice at any time, as well as the means to contact duty counsel.

[72] In my opinion, it is unduly cumbersome, and indeed confusing, to advise detainees at this early stage that if they cannot reach their counsel of choice, they could call somebody other than duty counsel, much less advise them of the materials that might be put at their disposal to research who they might want to call. At this stage, there is no issue of channeling people to duty counsel, as opposed to their counsel of choice. It is necessary only to advise them that they can call a specific lawyer of their choice, or they can get free legal advice from duty counsel. The officers in this case, using the standard language provided in their memo books, conveyed that information. There is no breach of s. 10(b) of the Charter in that regard.

H. NO BREACH OF INFORMATIONAL COMPONENT OF S. 10(B) AT THE STATION

[73] The next question is whether the police breached the informational component of s. 10(b) at the police station in their further interactions with the three accused persons about their rights to counsel. Again, I am dealing only with the informational component, and not with whether the police acted promptly enough to implement those rights by connecting the accused with a lawyer.

Factual Context

[74] Upon being advised of the right to counsel from the standard police wording, if an accused person does not invoke the right to speak to counsel, that is the end of the matter. The police have no obligation to explain anything further. However, that situation does not arise here. In this case, each of the accused, in some manner or other, invoked his right to counsel.

[75] Also, if an accused person indicates he wants to speak to a particular lawyer, and that lawyer is contacted, the issue of channeling towards duty counsel does not arise. Again, that is not the situation. Two of the accused elected to speak to duty counsel, and did so. The other (Mr. Sinclair) provided the name of a lawyer, the police placed a call to her, and she did not return the call, following which Mr. Sinclair spoke to duty counsel. The defence submits that in all three situations, the accused were improperly channeled to duty counsel rather than being given the full opportunity to speak to counsel of their choice.

[76] Mr. Beckles was advised of his rights to counsel by P.C. El-Halabi at the scene and responded that he wanted to speak to duty counsel. At the police station, Mr. Beckles was paraded before Sgt. Strangways. When asked if he understood his right to counsel, he said that he did. The Sergeant then asked him if he wanted to speak to a lawyer or duty counsel, to which he replied, “duty counsel.” Sgt. Strangways also told him that he could have the reasonable use of a phone while at the station, including to call a lawyer other than duty counsel.

[77] Mr. Mohamed was advised of his rights to counsel by P.C. Lam immediately upon arrest. He said he understood those rights and that he did want to speak to a lawyer. P.C. Lam asked him who he wanted to speak to and Mr. Mohamed responded that he did not have a lawyer. P.C. Lam then told him again of the availability of free duty counsel and he said he would do that. Upon arrival at the police station, P.C. Lam told Sgt. Strangways that Mr. Mohamad had been advised of his rights to counsel and that he wanted to speak to duty counsel. Sgt. Strangways asked him if he understood his rights to counsel, and he said that he did. They then had the following exchange:

Sgt. Strangways: Do you wish to call a lawyer, which would include duty counsel? Mr. Mohamed: Yes Sgt. Strangways: Which is it? Mr. Mohamed: I don’t know a lawyer. Sgt. Strangways: Do you have your own lawyer? Mr. Mohamed: No Sgt. Strangways: So, you’d like to speak to duty counsel? Mr. Mohamed: Yes.

[78] Mr. Sinclair was arrested and advised of his rights by D.C. Lymer. Mr. Sinclair said that he had a lawyer, Daisy Bygrave, and that he wanted to call her. D.C. Lymer testified that when someone provides the name of a specific lawyer, his usual practice is to tell them that he will try to contact that lawyer, but that if he cannot, he will call duty counsel as a backup. He said he could not remember if he told this to Mr. Mohamed at the scene. When Mr. Sinclair was paraded before Sgt. Strangways, D.C. Lymer advised that Mr. Sinclair had expressed a wish to speak to a lawyer, and provided the name, Daisy Bygrave. D.C. Lymer said that he would make efforts to call Ms. Bygrave. Sgt. Strangways asked Mr. Sinclair if he understood his rights to counsel and he replied that he did. Sgt. Strangways then asked, “if we can’t get in touch with Daisy, do you want to talk to duty counsel?” and Mr. Sinclair answered, “yes.”

[79] The defence submits that even if there is no obligation to tell a detainee immediately about the availability of some means to research the names of lawyers, this type of information should at the very least be provided at the police station. Thus, they argue that Mr. Beckles should have been told that he could look at a list of lawyers and choose one, rather than simply being directed to duty counsel. They submit that the situation for Mr. Mohamed is particularly compelling because he expressed some confusion about his rights, stating that he did not know a lawyer, which again would have been an opportunity to tell him about a list of lawyers he could consult, instead of only directing him toward duty counsel. With respect to Mr. Sinclair, the defence argues that when Ms. Bygrave could not be reached, the officers should have asked him if he wanted to try calling a different lawyer and tell him that he could look at a list of lawyers and choose one, or that he could speak to duty counsel.

Applicable Law

[80] The defence relies on R. v. Manuel, 2018 ONCJ 381, an Ontario Court of Justice decision in which Burstein J. held that the informational requirements of s. 10(b) of the Charter require advising an accused person they would be provided with a telephone and telephone book from which they could choose a lawyer, as well as advising them about duty counsel. Burstein J. concluded that the informational component of s. 10(b) requires the police to provide the “tools” required to choose a lawyer, including a “searchable database of lawyers” and stated that the police must find ways “to comply with the most fundamental aspect of their s.10(b) implementational obligation – providing access to a real telephone and to [a] database of criminal lawyers (such [as] a yellow pages telephone book).” Burstein J. relied on a series of Ontario Court of Justice decisions to that same effect. See R. v. Panigas, 2014 ONCJ 797, at paras. 10, 40 and 55; R. v. Maciel, 2016 ONCJ 563, at paras. 37, 42-43; R. v. Lim, [2016] O.J. No. 6869 (C.J.), at paras. 18-19; R. v. McFadden, 2016 ONCJ 777, at paras. 121-37; R. v. Klotz, 2017 ONCJ 543, at paras. 7-12, 17 and 28-33; R. v. Sakharevych, 2017 ONCJ 669, at paras. 71-73, 97. He also relied on Alberta case law and the general practice of police officers in Alberta.

[81] I do not agree with the conclusions reached by Burstein J. in Manuel, and needless to say, I am not bound by decisions of the Ontario Court of Justice. My colleague, Akhtar J. dealt with this issue in R. v. Persaud, 2020 ONSC 3413, and held that there is no violation of s. 10(b) of the Charter if the police fail to advise a detainee of the availability of telephone directories or other search materials to assist in finding a private lawyer. In a thoroughly reasoned decision, Akhtar J. considered some of the provincial court authorities that have held such a right is included within s. 10(b) and that a failure to do so constitutes improper channeling towards duty counsel. Akhtar J. held that those decisions were “wrongly decided,” and he “decline[d] to follow them.” He specifically mentioned the decision in Manuel in that regard. The principle of judicial comity – that judges treat fellow judges’ decisions with courtesy and consideration – as well as the principle of stare decisis, require me to follow decisions of judges on this court unless certain exceptions apply. R. v. Sullivan, 2022 SCC 19; Hansard Spruce Mills (Re). In this case, none of those exceptions apply. The legal ruling underlying the decision of Akhtar J. has not been reversed on appeal, and the decision was made after full and careful consideration.

[82] I was not referred to, and am not aware of, any decisions of this court that are inconsistent with the decision of Akhtar J. in Persaud. I have considered two decisions of this court referred to in Persaud: R. v. Ruscica, 2019 ONSC 2442, in which McKelvey J. reached the same conclusion as did Akhtar J. (also specifically finding Manuel to be wrong); and R. v. Ordonio, 2019 ONSC 1804, in which Baltman J. also reached the same conclusion. Further, as did my colleagues, I am satisfied that this conclusion is supported by the general principles established in binding appellate authority, including R. v. Devries, 2009 ONCA 477, at paras. 22-23, 28; R. v. Zoghaib, at para. 1, aff’g [2005] O.J. No. 5947 (S.C.), at paras. 26-54, per Fragomeni J.; Willier, at paras. 33, 42-43; R. v. McCrimmon, 2010 SCC 36, at paras. 18-19. That is sufficient to dispose of the law on this issue. However, there are some additional issues I would like to address.

[83] In Manuel, Burstein J. quoted the standard right to counsel provided by police in Alberta as follows:

You have the right to retain and instruct your lawyer without delay. This means that before we proceed with our investigation you may call any lawyer you wish or a lawyer from a free legal advice service immediately. If you want to call a lawyer from a free legal advice service, we will provide you with a telephone and you can call a toll free number for immediate legal advice. If you wish to contact any other lawyer, a telephone and telephone books will be provided to you. If you are charged with an offence you may apply to Legal Aid for assistance.

[84] According to some of the case law, it is the practice of the Alberta police to put the accused into a room with a telephone and both the white pages and yellow pages of the phone book. In Toronto, the police ask the accused for the name of the lawyer they wish to contact, look up the contact information for that lawyer if the accused does not have it, place the call to the lawyer, and then transfer the call to a phone that the accused can access in a private room. In the latter scenario, there is no need to provide telephone books of any kind, as the accused is being connected to the lawyer of their choice. White pages of a telephone book are useless unless the accused already knows the name of a lawyer they want to contact. Yellow pages are, arguably, useful for searching for a lawyer if you don’t know one already. Given the Toronto police practice of placing the calls to the lawyers of choice, the only real difference between what is done in Toronto versus Alberta is the provision of the yellow pages.

[85] Although Burnstein J. suggests that his position is supported by case authority and the actions of the police in Alberta, the case law he cites does not fully support that proposition. Burnstein J. cited three decisions from Alberta as supporting his conclusions: R. v. Silvester, 2014 ABPC 38 (a decision of the Alberta Provincial Court dealing with an accused who had trouble reaching legal aid at the number provided and whether he had waived his right to counsel); R. v. Junek, 2014 ABPC 199, at para. 6 (also a decision of the Alberta Provincial Court, but dealing with the accused being provided with a phone book from which some pages had been torn out); and R. v. Wolbeck, 2010 ABCA 65, at para. 21 (a decision of the Alberta Court of Appeal which does not support the proposition for which it was cited). In my view, these decisions establish that it is the practice in Alberta to provide the yellow pages to detainees, but not that it is a constitutional requirement to do so.

[86] In R. v. Wolbeck, 2010 ABCA 65, a man was arrested for impaired driving. Upon being advised of his rights to counsel, he said he wanted to talk to a legal aid lawyer, and he asked the police officer to place the call for him, which the officer did. It had been argued at trial that this assistance constituted interference by the police. The Alberta Court of Appeal held that it did not. First, the Court referred to the three duties of the police respecting the right to counsel as established by the Supreme Court of Canada, as follows:

(a) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel;

(b) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

(c) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

[87] The court then explained that the first is called an informational duty and that the second two are called implementational duties. The court then stated that “[t]here is no suggestion the respondent was not advised of his right to counsel, and of the availability of Legal Aid. That discharged the informational duty.”

[88] What is interesting about this statement is that the informational duty is discharged upon advising of the right to consult counsel and the availability of Legal Aid. Nothing is said about providing yellow pages to conduct a search for counsel.

[89] Next the court held that “[t]he respondent was placed in a room with a telephone, a telephone book, and information about Legal Aid, and he was given an opportunity to consult counsel in private. That prima facie discharged the relevant implementational duty of providing a reasonable opportunity to exercise the right.”

[90] In my view, it is clear from this decision that the Alberta Court of Appeal considers the provision of yellow pages to an accused to be part of the implementational duty of the police, rather than a requirement at the informational stage. Further, the court does not say the police are required to provide the yellow pages, but rather that if they have done so, their implementational duty is prima facie fulfilled.

[91] There is one other decision from Alberta that I have considered in this context, the decision of LoVecchio J., sitting on appeal from the decision of a provincial court judge, in R. v. McKay, 2014 ABQB 70. In that case, the trial judge ruled that, as part of the basic right to counsel under s. 10(b) of the Charter, the police had an obligation to permit an accused person to have access to the internet for the purposes of searching for a lawyer. There was evidence at trial about lawyers’ listing in the yellow pages between 2000 and 2011, provided by a witness who had been a senior manager with the Yellow Pages Group for 13 years. Unsurprisingly, the evidence was that fewer and fewer lawyers were listing their services in the yellow pages and were instead spending their advertising budgets on internet listings. The witness also testified that, in her opinion, a Google search provided a more level playing field in comparison to print Yellow Pages because the latter gave the prime spots to clients who placed the largest ads. She also believed that the internet would provide more current information than would be found in the Yellow Pages. On appeal, LoVecchio J. reversed the finding of the trial judge and held that there had been no breach of s. 10(b) by failing to provide access to the internet in that case. It was recognized by both the trial judge and LoVecchio J. that there was no issue with the informational requirement. If internet access had to be provided at all, it would be as part of the police duty to implement an accused’s wish to speak to counsel other than Legal Aid. In the result, LoVecchio J. noted that the accused had telephone books and a number for Legal Aid available to him, and he chose to call Legal Aid. He held that this was sufficient to establish that this accused had a reasonable opportunity to contact counsel, particularly given that the accused did not ask to be able to use the internet or express any concerns at the time. Therefore, LoVecchio J. held that there was not a sufficient factual basis to support a finding that the failure of the police to offer internet access constituted a violation of s. 10(b). However, he also expressed some agreement with the general principle that in the internet era (as it existed in 2013) access to the internet to search for a lawyer was a more meaningful tool for persons who were detained and wished to find a lawyer.

[92] As noted by LoVecchio J. nearly 10 years ago in McKay, there is no Canadian court that has reached the “sweeping conclusion” that offering internet access to search for a lawyer is part of the rights guaranteed under s. 10(b) of the Charter.

Conclusion

[93] The three accused in this case were given the option at the police station of calling any lawyer of their choice, or to be connected with free duty counsel. In terms of the informational component of s. 10(b) of the Charter, I find that this was an adequate amount of information to provide. Had all of the accused stated that they did not wish to speak to a lawyer, that would have been the end of the matter. However, all three accused in this case stated that they did want to speak to a lawyer. Any further analysis of whether their s. 10(b) rights were violated arises at the implementation stage. There is no violation of the informational duty of the police under s. 10(b) of the Charter.

I. PROBLEMS WITH IMPLEMENTATION OF RIGHTS TO COUNSEL

[94] The next issue is whether, after each of the accused stated a wish to speak to a lawyer, the police breached the implementational aspect of the 10(b) rights. Although not precisely framed this way in argument, I see three aspects to this question:

(1) whether the implementation of the right to counsel requires the police to provide some form of material for an accused to search for a lawyer; (2) whether the police improperly steered the accused in this case to duty counsel, rather than respecting their right to counsel of their choice; (3) whether there was unacceptable delay in implementing the right of each accused to speak to a lawyer.

Tools to Conduct a Search for a Lawyer

[95] The defence position is that the accused must be advised of the availability of some kind of list from which they could search for a lawyer, and this list must be provided to them upon request. The defence did not have a clear position on what list of lawyers should be provided. Initially, counsel suggested the Yellow Pages of the telephone directory. There was some question about whether those even existed anymore, but inquiries were made and, apparently, they do exist. A Google search was mentioned as a possibility by defence counsel at one point. Another defence suggestion was to have the list from the Law Society of Ontario (“LSO”) of all lawyers practicing in various locations. Ultimately, counsel settled on the submission that the police should provide a printout from the website of the Criminal Lawyers’ Association (“CLA”) website. I was advised in argument that the website provides a directory of 1,844 criminal defence lawyers in Ontario, a total of 37 pages if printed. I was not provided with any evidence as to the feasibility of doing any of those things, nor the advantages of one over another.

[96] Even if I accepted that a list of lawyers’ names should be provided to persons at the police station (which I do not), I do not find any of the suggestions offered to be viable. I checked the website of the CLA myself. The CLA is a national organization. There is a dropdown menu entitled “Find a Criminal Lawyer,” which lists 1,544 names. This includes lawyers from across Canada, although the vast majority are in Ontario. If Toronto is entered into the search, a list of 760 names is generated. They appear to be in random order and the names appear in a different order each time a search is conducted. It would appear that only lawyers who are members of the association are on the list. The list of lawyers registered with the LSO has the advantage of including all lawyers licensed to practice in Ontario, but when a search is done for lawyers who are certified as specialists in criminal law, only 73 names come up, which is clearly only a small fraction of the total lawyers in Ontario practicing in that field.

[97] I have considerable difficulty with the Yellow Pages as an appropriate option. There was once a time when all businesses (including virtually all criminal defence lawyers) would list themselves in the Yellow Pages. However, this is no longer the case, and the Yellow Pages can no longer be expected to include a wide range of criminal lawyers. I need go no further than the fact that none of the experienced criminal lawyers in the case before me knew whether the Yellow Pages still existed. They had to do some research to find out. Basically, the Yellow Pages is a list of advertisements, with priority of placement going to those who pay the most for their listing. An internet search has the advantage of being more inclusive as contact information for most criminal lawyers would likely be found there. However, notwithstanding the evidence given by the witness in McKay, it is not the case that simply doing an internet search for a criminal lawyer will provide a more balanced list of lawyers that is not prioritized by who has paid the most for the listing. I believe I can take judicial notice of the fact that people pay to have their names appear prominently in searches conducted on the internet. Further, lists such as “The Top 10 Criminal Lawyers” notoriously will feature lawyers nowhere close to the top 10. Typically, these are simply paid advertisements with the consumer having no way of knowing whether the persons listed in fact have the expertise required to give the advice needed. That is to say nothing about the security concerns for the police in providing internet access, in private, to persons charged with an offence. In my opinion, there is no legal authority, and no evidence before me, to support the proposition that the right to counsel guaranteed under s. 10(b) of the Charter includes providing persons detained or arrested with access to the internet to search for a lawyer, even if such a search would generate appropriate lists, which in my view it likely would not.

[98] If a person detained already has a lawyer, or knows the name of a lawyer they would trust, they have a right to speak to that lawyer. In some jurisdictions, the police will provide the detainee with a phone book to look for the contact information for that lawyer; in other jurisdictions, the police will search out that information upon being provided with a name. Toronto is in the latter group. In Toronto, individuals who are detained are also permitted to contact a friend or family member to either give them the name of a lawyer or ask that person to call a lawyer for them. The accused in this case were offered that opportunity.

[99] In my view, the right to counsel at this stage is adequately protected by the resources currently provided to detained persons to enable them to contact counsel. It must be remembered that the right to legal counsel at this stage is fundamentally different from the right to counsel at trial. As noted by the Supreme Court of Canada in Willier, “[w]hat the right to counsel of choice entails must be understood having regard to the purpose of the guarantee.” The issues at this stage are very narrow. A lengthy and detailed consultation about the charges themselves will never take place in this context. Under the current scheme, every person detained is able to contact a lawyer of their choice, or to obtain competent free advice from a legal aid duty counsel.

[100] That is not to say that situations will never arise that might require the police to take steps beyond what I have already mentioned. One example would be when a person’s lawyer of choice cannot be reached in a reasonable time. At that point, there is an obligation on the police to inquire as to whether the accused wants to speak to somebody else. However, there is a limit to how much the police are required to do, and for what period of time this should extend. The accused is required to exercise some diligence in the exercise of his rights. The Supreme Court of Canada held in Willier:

Detainees who choose to exercise their s. 10(b) right by contacting a lawyer trigger the implementational duties of the police. These duties require the police to facilitate a reasonable opportunity for the detainee to contact counsel, and to refrain from questioning the detainee until that reasonable opportunity is provided. However, these obligations are contingent upon a detainee’s reasonable diligence in attempting to contact counsel: R. v. Tremblay, [1987] 2 S.C.R. 435; R. v. Black, [1989] 2 S.C.R. 138; R. v. Smith, [1989] 2 S.C.R. 368. What constitutes reasonable diligence in the exercise of the right to contact counsel will depend on the context of the particular circumstances as a whole. As Wilson J. stated in Black, at pp. 154-55:

A rider is attached to these police obligations, namely that the accused must be reasonably diligent in attempting to obtain counsel if he wishes to do so. If the accused person is not diligent in this regard, then the correlative duties imposed upon the police to refrain from questioning the accused are suspended: see R. v. Tremblay, [1987] 2 S.C.R. 435.

Such a limit on the rights of a detainee are necessary, as Lamer J., as he then was, noted in Smith, “because without it, it would be possible to delay needlessly and with impunity an investigation and even, in certain cases, to allow for an essential piece of evidence to be lost, destroyed or rendered impossible to obtain. The rights set out in the Charter, and in particular the right to retain and instruct counsel, are not absolute and unlimited rights. They must be exercised in a way that is reconcilable with the needs of society” (p. 385).

[Emphasis added.]

[101] Similarly, the Supreme Court of Canada held in R. v. Ross:

Although an accused or detained person has the right to choose counsel, it must be noted that, as this Court said in R. v. Tremblay, [1987] 2 S.C.R. 435, a detainee must be reasonably diligent in the exercise of these rights and if he is not, the correlative duties imposed on the police and set out in Manninen are suspended. Reasonable diligence in the exercise of the right to choose one’s counsel depends upon the context facing the accused or detained person. On being arrested, for example, the detained person is faced with an immediate need for legal advice and must exercise reasonable diligence accordingly. By contrast, when seeking the best lawyer to conduct a trial, the accused person faces no such immediacy. Nevertheless, accused or detained persons have a right to choose their counsel and it is only if the lawyer chosen cannot be available within a reasonable time that the detainee or the accused should be expected to exercise the right to counsel by calling another lawyer.

[Emphasis added.]

[102] I can see possible situations in which the police might have some responsibility to provide some sort of reference list or search tool for an accused person to find a specific lawyer. For example, this might arise where the accused is generally familiar with a law firm, but not with the name of a specific lawyer in that firm, or where he wishes to look at a list of other lawyers in the firm if his chosen lawyer is not responding. Or possibly, the accused cannot recall the name of a particular lawyer off the top of his head but would recognize it if he saw it. These situations, however, would require the accused to take some active steps to request that the police provide certain information so that he can locate the name of his chosen lawyer. That is not the case before me.

[103] Beyond that, and in light of the purpose of legal advice in this situation, I do not consider it necessary for the police to provide reference materials for an accused to search out a lawyer. Indeed, such a practice is likely counterproductive to the accused obtaining access to a lawyer competent to provide the advice he needs at this point in time.

Steering Towards Duty Counsel

[104] I do not disagree with the general proposition that an accused should be free to speak to counsel of his choice and that it would be improper for the police to steer the accused away from his chosen lawyer, or in any other way steer an accused person towards duty counsel. However, no such steering towards duty counsel happened in this case.

[105] Mr. Beckles knew he could call any lawyer he wished. He chose to speak to duty counsel. He also knew he could call a family member, or his girlfriend, or a lawyer other than duty counsel. There was no requirement to offer him a list of lawyers in case he wanted to choose somebody else from the list. There was no improper steering towards duty counsel. He knew his rights, and he chose to speak to duty counsel. If he was dissatisfied with the advice he received, there was an onus on him to speak up at the time. See R. v. Winterfield, 2010 ONSC 1288, at paras. 73-74. He did not.

[106] Mr. Mohamed also said he understood his rights to counsel both at the scene and at the police station. I have watched and listened to the exchange between Sgt. Strangways and Mr. Mohamed multiple times. The text of that conversation is reproduced at para. 77 above. I do not interpret this exchange to constitute steering Mr. Mohamed towards duty counsel. He readily agreed to speak to duty counsel and seemed to clearly understand what this meant. Following being paraded, he did speak to duty counsel and expressed no concerns afterwards about the advice he received.

[107] Mr. Sinclair provided the name of a counsel of choice, but agreed ahead of time that if that lawyer could not be reached, he would talk to duty counsel. D.C. Lymer located a telephone number for Daisy Bygrave (Mr. Sinclair’s chosen counsel) online and placed a call to that number at 7:51 p.m. There being no answer, he left a voicemail message with instruction on where to call back. By 8:05 p.m., Ms. Bygrave had not called back, so D.C. Lymer placed a call to duty counsel. It would have been preferable if D.C. Lymer had spoken to Mr. Sinclair before deciding, after only 14 minutes, that he should now switch to Mr. Sinclair’s second choice. However, Mr. Sinclair had agreed from the beginning that he would speak to duty counsel if Ms. Bygrave could not be reached, and it was 8:00 p.m. on a Saturday night and therefore not surprising that she did not return the call. Further, after speaking with duty counsel, Mr. Sinclair raised no concerns about the advice he had received or who had provided it.

[108] Accordingly, with respect to all three accused, I find on the facts that the police did not steer any of them towards duty counsel, but rather that all three understood their rights, readily agreed to speak to duty counsel, and expressed no concern with the advice they received or who provided it.

Delays in Implementing Rights to Counsel

[109] Mr. Beckles was paraded from 6:32 to 6:52 p.m. and then taken to the cells. P.C. Ahmed placed a call to duty counsel on his behalf at 7:13 p.m. and Mr. Beckles spoke to duty counsel from 8:17 to 8:24 p.m. Thus, there was a delay of 21 minutes between the time when Mr. Beckles left booking and when somebody started the process of implementing his right to speak to a lawyer. Further, it was another 64 minutes after that before Mr. Beckles actually spoke to a lawyer. P.C. Ahmed could not remember what he was doing between finishing the booking procedure and calling duty counsel, and also did not know why it took slightly over an hour between leaving a message for duty counsel and actually placing Mr. Beckles in the private booth in the booking hall to speak to the lawyer.

[110] Mr. Sinclair was paraded from 7:04 to 7:27 p.m. and then taken to the cells. D.C. Lymer went online to find a phone number for Daisy Bygrave and called that number at 7:51 p.m. There being no answer, he left a voicemail message with instructions on where to call back. That is a delay of 24 minutes from when Mr. Sinclair left booking and when the first call to counsel was placed. At 8:05 p.m., not having heard back from Ms. Bygrave, D.C. Lymer called duty counsel and left a message. At some point, Mr. Sinclair spoke to duty counsel, but the time of that call was not recorded. All that can be ascertained at this point is that he spoke to counsel before 2:04 a.m. when he was interviewed by the Hold-Up Squad, because he confirmed at that time that he had spoken to duty counsel. The defence submits that D.C. Lymer waited too long to place the call to Ms. Bygrave, and did not wait long enough before placing the call to duty counsel. It is not known if Mr. Sinclair ever spoke to Ms. Bygrave and, if so, when that happened. He did not testify on the application.

[111] Mr. Mohamed was the last person paraded, which was between 7:36 and 7:53 p.m. P.C. Lam placed a call to duty counsel for him at 8:21 p.m. and left a message. This was a delay of 28 minutes. Again, the exact time Mr. Mohamed spoke to duty counsel is not known, but it was some time before 2:15 a.m. when he was interviewed by the Hold-Up Squad. P.C. Lam testified that between 7:53 p.m. and 8:21 p.m., he was doing paperwork at the station, logging the property seized. He also testified that after being cross-examined about this delay at the preliminary hearing, he no longer prioritizes finishing up paperwork over implementing an accused person’s Charter right to speak to a lawyer.

[112] I find that, for each accused, there was an unacceptable delay between when the accused was paraded and placed in a cell to when an officer took any steps to contact the lawyers requested. P.C. Lam testified that he was taking care of the property seized. He had a partner who could easily have been doing that while he placed a call to duty counsel. More importantly, as P.C. Lam himself acknowledged, the priority in this situation has to be the Charter rights of the accused, rather than paperwork. The other two officers could not recall what they were doing instead of placing calls to counsel. They were unable to point to anything pressing that would appropriately take priority over implementing the Charter rights of the accused to speak to a lawyer. Although these delays were not terribly long (21 minutes; 24 minutes; and 28 minutes), they were clearly longer than they needed to be. I find these delays to be a breach of the s. 10(b) Charter rights of each accused.

[113] There was also considerable delay in actually connecting each accused with a lawyer. For Mr. Beckles, this was a delay of slightly over one hour. The explanation offered is that the measures implemented during COVID-19 caused some delays. Previously, accused persons were taken from booking and placed in an interview room, where they waited until their lawyer called back. In order to minimize contact between people at the station, this was changed to transferring each accused to a cell and using a specially constructed sound-proof booth in the booking hall to facilitate phone calls with counsel. The downside to this was that it was difficult if not impossible to use the booth for this purpose while individuals were being paraded, which is always video and audio recorded. There were three accused being paraded that night, starting from 6:32 p.m. and concluding at 7:53 p.m. Mr. Beckles started speaking to duty counsel at 8:17 p.m. It would have taken some time to notify duty counsel that the booth was now available, go to the cells to get Mr. Beckles, and then take Mr. Beckles to the booth.

[114] None of the officers who testified were very clear about the reasons for the delay in transferring calls to the accused. Both D.C. Lymer and P.C. Lam left it to other officers to carry out this task, which is not unreasonable. However, nobody appears to have noted when Mr. Sinclair and Mr. Mohammed actually spoke to a lawyer. I can only assume it was sometime after 8:24 p.m. when Mr. Beckles had finished his call.

[115] Again, while the length of the delay is either not extreme or cannot be pinpointed, and while there is some partial explanation due to the special COVID-19 protocols, I find that these delays do constitute a breach of s. 10(b) for each accused.

[116] There was no breach by any officer of the duty to hold off attempting to obtain statements from any of the accused while they were still waiting to speak to a lawyer. By the time they were interviewed, each confirmed that they had spoken to a lawyer.

J. ADMISSIBILITY OF EVIDENCE UNDER S. 24(2)

Nature of the Breaches

[117] I have found that the police breached the s. 10(b) rights of the accused by failing to advise them of their rights to counsel at the time they were detained. There was ample time to do that and no good reason not to do it. The officers were standing by waiting for computer searches to be run and could easily have explained the right to counsel during that time, if not earlier. I do not accept that the stated concerns about officer safety justify the failure to advise the detainees of these basic rights. Although the first two officers were outnumbered by the three men in the Lyft car, other officers arrived on scene very shortly afterwards. There were other discussions with the three men in the back of the Lyft, notwithstanding any concern about officer safety. The rights to counsel needed to be part of that conversation, right along with the reason for the detention. Although the officers were diligent in advising of the reason for the detention, they were less so with respect to the rights to counsel. Although I have not necessarily accepted some of the reasoning offered by the officers for failing to do this, that is a far cry from finding that they lied under oath. I have not made that finding, nor do I find that they acted in bad faith.

[118] I have also found that there were some delays in implementing the rights of the accused to speak to a lawyer after they invoked that right. Likewise, I have not found any of the officers charged with the responsibility of facilitating the rights to counsel to have acted in bad faith. Defence counsel raised some concerns about the conduct of Sgt. Strangways. The sergeant (now retired) had a certain abrasive manner of speaking and a colourful turn of phrase at times, but in my view, it was never to the point of being abusive. Further, it had no impact on any Charter right of any accused.

[119] It is concerning that two experienced police officers expressed the view that persons under detention had an obligation to identify themselves, failing which they could be charged with a criminal offence. However, this did not involve any breach of the Charter as the three individuals detained freely provided their identification to the officers and were not arrested for obstructing justice, nor were they threatened with it.

The Test

[120] The test to be applied under s. 24(2) of the Charter in determining whether evidence should be excluded because of Charter breaches is well-settled. I am required to determine whether the admission of the evidence seized by the police would “bring the administration of justice into disrepute.” See Grant, at para. 71. In coming to that conclusion, I must consider and weigh in the balance the following three factors: (1) the seriousness of the Charter-infringing police conduct; (2) the impact of the breach on the Charter-infringing rights of the accused; and (3) society’s interest in the adjudication of the case on its merits.

[121] The breach with respect to failing to advise the accused of their rights to counsel when they were detained was close in time to, and preceded, the discovery of the gun in the car, which led to the arrest of all three accused and the seizure of some articles of their clothing along with the gun. In my opinion, this proximity of time, place, and context easily meets the test described in R. v. Pino, 2016 ONCA 389, at paras. 56, 72, for the application of s. 24(2) to arise. Further, the breaches of s. 10(b) at the police station, while somewhat more remote, were still part of the same chain of events. In any event, it would be relevant to take those subsequent breaches into account as it is necessary to consider the cumulative effect of any Charter breaches in determining the admissibility of evidence under this section.

Seriousness of the State-Infringing Conduct

[122] The conduct of the police in failing to advise the three detainees of their right to consult counsel was a serious infringement of their rights. I am particularly concerned about the failure to advise of that right when Mr. Sinclair actually asked whether he could phone his mother or a lawyer, to which D.C. Lymer responded that it would just take longer to check their information and send them on their way. This question by Mr. Sinclair should surely have reminded D.C. Lymer about the right to counsel, and yet he did not provide a Charter compliant response. On the other hand, he did not prohibit Mr. Sinclair from making the calls, and the video footage from the Lyft camera confirms that he was talking on the phone, although the person to whom he was speaking is not known. I also note that until the Lyft driver asked to cancel the fare and have the three men removed from his vehicle, the police were content to leave the detainees in the back of the vehicle without further restricting their liberty or searching them. When the accused were taken out of the car, they were patted down for officer safety, which is completely understandable given the officers’ belief that they had been involved in an armed robbery. Further, this part of the detention was extremely brief as the gun was found almost immediately after they were taken out of the vehicle, and they were then arrested. I find this to be seriously infringing conduct, but on a scale from trifling to egregious, I would describe it as being moderate, or perhaps slightly higher than moderate.

[123] The conduct of the officers at the police station is somewhat less serious. All of the accused were eventually connected with duty counsel and received advice. The delays in placing those calls and the delays in connecting the accused with a lawyer for advice were longer than they should have been. However, I find the officers were merely lackadaisical in their attitude, rather than deliberately delaying. The delays were also not for an inordinate period of time. This is not to excuse the delays, but rather to place them on a continuum of Charter-infringing conduct by police. I am mindful that the same sort of delay occurred for each of the three accused, which suggests this was a systemic issue at the station, but this is somewhat explained by the COVID-19 protocols in place. Overall, I would characterize these delays as moderate to low in seriousness.

[124] The seriousness of the Charter-infringing conduct points towards excluding the evidence.

Impact on the Rights of the Accused

[125] The failure to advise the accused of their rights to counsel while they were detained had low to minimal impact on the accused. Mr. Sinclair actually placed a call or calls on his cellphone during this time. He asked if he could call a lawyer, and was not restricted from doing so. He may well have spoken to a lawyer, or at the very least, he had the opportunity to do that. The defence presented no evidence on this point. In any event, nothing would have changed if the accused had been advised of their rights to counsel immediately upon detention. Events unfolded very quickly from the time of the initial stop to the point where the gun was found in the car, at which point they were arrested and advised of their rights to counsel.

[126] Likewise, at the station any delay in connecting the accused with counsel for advice had very little impact on them. Nobody elicited any statements from them while they were waiting to speak to counsel. Indeed, they were not interviewed by police until sometime after 1:00 a.m., long after they had spoken to counsel. No incriminating statements were made by any of the accused.

[127] It is relevant to consider at this stage that the evidence was obtained prior to these breaches. Therefore, the link between the breaches and the evidence the defence seeks to exclude is more remote. There is no causal connection.

[128] This part of the test does not push strongly in either direction, but if anything tends to point towards admitting the evidence.

Society’s Interest in Adjudication on the Merits

[129] This factor typically points towards admitting the evidence, and this case is no exception. These were two violent armed robberies of community pharmacies. Firearms were involved. One pharmacist was pistol-whipped. The loaded firearm found in the back of the Lyft vehicle is real evidence, unaffected by any of the Charter breaches, and highly reliable evidence. If the gun is excluded, the Crown’s case is not completely undermined, except with respect to the gun possession charges themselves. There is still evidence, including high quality video footage, with respect to the robberies themselves. However, the case would be considerably weakened by the exclusion of the gun. The horrific impact firearms have had on our society is a topic I, and numerous other judges, have repeatedly emphasized in our decisions. It is a factor that affects society’s interests in an adjudication of the case on the merits. See, in particular, R. v. Omar, 2019 SCC 32, upholding the dissenting judgment in R. v. Omar, 2018 ONCA 975.

Conclusion

[130] In balancing these three factors, I am mindful that this is not a mathematical exercise. However, in this case, none of the factors point strongly towards excluding the evidence. The police conduct points somewhat towards exclusion; the impact on the accused is minimal and, if anything, neutral; and the nature of the offences and the loaded firearm left in a Lyft vehicle point strongly towards admitting the evidence. I agree with the Crown’s submission that the interests of society would be best served by the admission of this evidence. This was not the kind of flagrant or deliberate invasion of rights that requires the court to distance itself from the behaviour of the police. Rather, fair-minded citizens would be more likely to think poorly of the justice system if the evidence in this case was excluded.

[131] In this regard, I have not taken into account the two officers’ mistaken belief about their power to arrest a detainee for failing to provide identification. This had not impact on the rights of any of the accused in this case and is too remote to have any effect on my decision as to the admissibility of the evidence.

[132] Accordingly, I find all the evidence to be admissible. The application is dismissed.

MOLLOY J. Released: May 31, 2023

ONTARIO SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING – and – JESSE BECKLES, JAHLINDO SINCLAIR and MAHAD MOHAMED Defendants/Applicants

REASONS FOR JUDGMENT Molloy J.

Released: May 31, 2023