COURT FILE NO.: CR-21-10000-498 DATE: 20230612

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING - and - JAMEAL JOHNSON

Counsel: Kaely Hebert, for the Crown W. Glenn Orr Q.C., for the accused

Heard: June 6-9, 12, 2023

K.L. Campbell J.:

Pre-Trial Charter Ruling

I

Overview

[1] The accused, Jameal Johnson, is currently charged with: (1) dangerous driving; (2) possession of a prohibited firearm without a license; (3) possession of a weapon for a purpose dangerous to the public peace; (4) occupying a motor vehicle knowing that it contained a prohibited firearm; (5) pointing a firearm at Marcus Ragobeer; (6) discharging a firearm with the intention of endangering the life of Marcus Ragobeer; and (7) seven counts of possessing a firearm while prohibited from doing so by means of an order made under s. 109 of the Criminal Code, R.S.C. 1985, chap. C-46. According to the indictment, these offences are all alleged to have been committed by the accused on or about July 6, 2019, in the city of Toronto.

[2] The defence has brought an application, under the Canadian Charter of Rights and Freedoms, seeking to: (1) quash the search warrants that were issued by the justice of the peace in this case, for the accused’s residential premises located at 123 Sandyhook Square in Toronto, and for a silver Jaguar motor vehicle (with license plate number CFMK 913) parked at that same geographic location; (2) stay all of the criminal proceedings against the accused; (3) exclude all of the evidence in this case, emanating from the complainant (Marcus Ragobeer), as well as all of the evidence gathered by the police as a result of their execution of the search warrants issued on July 7, 2019.

II

The General Nature of the Case

[3] Essentially, the Crown alleges that the complainant, Marcus Ragobeer, was driving his vehicle, a white 2019 Toyota Camry, in the early morning hours of July 6, 2019, after getting some food from a McDonald’s restaurant. He was stopped in his vehicle in the curb lane on Danforth Avenue, heading eastbound, at the traffic lights located at Main Street in Toronto. The accused was driving a silver Jaguar and was similarly stopped in another eastbound lane of Danforth Avenue, right next to the complainant, at the same Main Street traffic lights. While they were so positioned in their respective vehicles, the accused engaged the complainant in a conversation about the music that the complainant was playing inside his vehicle. Predictably, this conversation quickly escalated into an argument between the two men.

[4] According to the Crown, the complainant then turned his vehicle south on Main Street in an effort to avoid the accused, but the accused followed him in his vehicle. The complainant then turned onto Gerrard Street, and he ultimately turned north on Victoria Park Avenue, trying all the while to get away from the accused. These attempts were all unsuccessful, as the accused continued to follow him. At one point, the accused appeared to use his phone to summon a friend, who appeared on the scene, shortly thereafter, driving a black Mazda vehicle, and then they both made efforts, with their respective vehicles, to force the complainant off the road.

[5] The Crown alleges that, while the men were headed north on Victoria Park Avenue, the accused rammed the complainant’s vehicle with his own vehicle, using the front passenger side of the Jaguar to ram the driver’s side rear bumper area of the complainant’s Toyota Camry. When the complainant slowed his vehicle in order to try to assess the damage caused to his vehicle, the accused drove up beside the complainant and pointed a firearm at him through the passenger window of his vehicle. When Mr. Ragobeer saw the gun, he sped off in his vehicle. Shortly thereafter, the complainant heard a gun shot.

[6] The complainant then placed a 911 emergency call, complaining about the fact that someone driving a silver Jaguar rammed into his vehicle and then shot at him. The complainant was able to helpfully provide the 911 operator with a partial license plate number of the Jaguar vehicle (i.e. CFMK). Members of the Toronto Police Service (TPS) responded to the emergency call, and ultimately spoke with the complainant, but by that point in time, the person driving the Jaguar was long gone.

[7] Subsequent investigative checks by the police revealed, however, that there was a silver Jaguar, with a license plate number CFMK 913, registered to an Oakville company. A representative of the Oakville company verbally confirmed that the car belonged to them, and this representative indicated to the police that the Jaguar was rented to an individual in Oakville. However, the company representative explained that the Jaguar was fitted with a Global Positioning System (GPS), which showed that the vehicle was, at that very moment, located at 123 Sandyhook Square in Toronto.

[8] The Crown contends that the police then attended at 123 Sandyhook Square, where the unoccupied silver Jaguar was located, with a tarp spread over its front, concealing any damage to the front of the vehicle. Further investigations by the police revealed that some seven people lived at the residence, including the accused, Jameal Johnson.

[9] Later that same day, the police arranged a photograph “lineup,” and the complainant positively identified the photograph of the accused as the person who was driving the Jaguar that night, and who rammed him with his car, and who shot a gun in his direction.

[10] On July 7, 2019 a Justice of the Peace granted search warrants to permit the police to search the residential premises at 123 Sandyhook Square and the silver Jaguar motor vehicle. During the execution of these search warrants, the police located a 0.4 calibre casing on the rear floor on the driver’s side of the Jaguar; as well as the Jaguar key, personal belongings of the accused, and mailing documents in the name of Jameal Johnson in the residential premises.

III

The Validity of the Search Warrants

1. The Governing Legal Standard

[11] While the applicable legal standard for this application is well-settled, it is of some importance in the present case to keep this standard squarely in mind, so as to avoid any potential confusion.

[12] Search warrants, once issued, are presumed to be valid. Accordingly, the party challenging the search warrant bears the burden of demonstrating its invalidity. See R. v. Cusick, 2019 ONCA 524, 146 O.R. (3d) 678, at para. 43, R v. White, 2022 ONCA 538, at para. 14. At the outset of this analysis, I will note that I have concluded that the accused has not met this burden.

[13] When a trial judge is asked to review the sufficiency of an Information to Obtain (ITO) used to obtain a search warrant, the judge must not approach the question of the issuance of the search warrant de novo, substituting his or her own view for that of the issuing justice. Rather, the reviewing judge must determine, based on the record that was before the issuing justice, as amplified and/or edited on the review, whether the issuing justice could properly have issued the search warrant. The question is not whether the reviewing judge would have issued the search warrant, but rather whether there was sufficient reliable information that could have permitted the authorizing justice to conclude that there were “reasonable grounds” justifying the issuance of the search warrant. See: R. v. Garofoli, [1990] 2 S.C.R. 1421, 60 C.C.C. (3d) 161, at pp. 1452, 1454; R. v. Grant, [1993] 3 S.C.R. 223, 84 C.C.C. (3d) 173, at p. 251; R. v. Bisson, [1994] 3 S.C.R. 1097, 94 C.C.C. (3d) 94, at p. 1098; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 19, 36, 40, 50-61; R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 8, 30; R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 20, leave denied, [2010] 1 S.C.R. ix; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 39-43; R. v. Sadikov, 2014 ONCA 72, 314 O.A.C. 357, at paras. 37-38, 83, 88; R. v. Liew, 2015 ONCA 734, [2015] O.J. No. 5687, at paras. 33-34; R. v. Green, 2015 ONCA 579, [2015] O.J. No. 4428, at paras. 14-18, 25-30; R. v. Daniels, 2015 ONSC 283, 326 C.R.R. (2d) 57, at para. 7; R. v. Lacroix, 2015 ONSC 6258, [2015] O.J. No. 5259, at paras. 27-32; R. v. Hall, 2016 ONCA 13, 128 O.R. (3d) 641, at paras. 47-48; R. v. McKenzie, 2016 ONSC 245, [2016] O. J. No. 294, at para. 14; R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721, at paras. 20-21.

[14] In R. v. Boussoulas, 2014 ONSC 5542, [2014] O.J. No. 4525, affirmed, 2018 ONCA 222, [2018] O.J. 1163, I sought to outline more fully, at paras. 5-22, the legal principles governing applications to quash search warrants. Without repeating all of those principles again, I will seek to apply them in the factual circumstances of this case.

[15] Further, in order to assess the sufficiency of an ITO used to obtain a search warrant, the court must determine whether, in the totality of the circumstances, the ITO reveals the necessary “reasonable grounds.” This standard does not require proof beyond a reasonable doubt, or even the establishment of a prima facie case. Instead, this standard is one of credibly-based probability, and requires proof of reasonable probability or reasonable belief. At the same time, it requires more than an experienced-based “hunch” or reasonable suspicion. In other words, if the necessary inferences concerning the legal pre-conditions necessary for the issuance of the search warrant were reasonable on the facts disclosed in the ITO, then the search warrant could have issued. See Hunter v. Southam, [1984] 2 S.C.R. 145, 14 C.C.C. (3d) 97, at p. 167; R. v. Storrey, [1990] 1 S.C.R. 241, 53 C.C.C. (3d) 316, at p. 250; R. v. Law, 2002 BCCA 594, 171 C.C.C. (3d) 219, at para. 7; Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 114; R. v. Jacobson (2006), 207 C.C.C. (3d) 270 (Ont.C.A.), at para. 22; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at paras. 17, 21-23; R. v. Loewen, 2010 ABCA 255, 260 C.C.C. (3d) 296, at para. 18, affirmed, 2011 SCC 21, [2011] 2 S.C.R. 167; R. v. Bush, 2010 ONCA 554, 245 C.C.C. (3d) 137, at paras. 37-38; R. v. Spence, 2011 BCCA 280, at para. 31; R. v. Sadikov, at para. 81; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 85; R. v. Boussoulas, 2014 ONSC 5542, at para. 21, affirmed 2018 ONCA 222; R. v. Grant, 2015 ONSC 1646, at paras. 90, 92; R. v. Herta, 2018 ONCA 927, at para. 20.

2. The Validity of the Search Warrants Based on the “Information to Obtain”

[16] I must say that, applying the governing legal standard, I have no difficulty concluding that the impugned search warrants in the present case could properly have been issued in the present case. Indeed, I fail to see how they might not have been issued based upon the information put before the issuing justice.

[17] In his ITO, the affiant, Detective Constable Cristian Sirbu, of the Toronto Police Service (TPS), outlined his reasonable and probable grounds for: (1) believing that certain specified firearms offences had been committed by Jameal Johnson; and for (2) believing that a list of certain potential evidence would be found in the proposed specific locations to be searched. More particularly, in the ITO, the affiant outlined all of the following:

• In section 4.1 of the ITO, the affiant outlined the details of the “radio call” to the emergency 911 number that the complainant made, outlining how the dispute had started, and how the driver of a silver Jaguar (with partial license plate number of CFMK), had rammed his vehicle from behind, and then “discharged a firearm” at him – but he indicated, as well, that the complainant was not sure whether the suspect “shot in the air or shot at the victim;”
• In section 4.2 of the ITO, the affiant outlined the police response to this 911 phone call, from his review of the ICAD report that generated the information about the police units that had responded to the call;
• In section 4.3 of the ITO, the affiant outlined the details of the “initial investigation” by the police, from a report prepared by Detective Constable Brittney Sunega of the TPS, and which explained: (1) how the dispute had arisen; (2) how the driver of the silver Jaguar had engaged in various attempts to “cut him off,” which forced the complainant to drive in particular directions; (3) how a second vehicle, a black Mazda 3, had appeared following a phone call from the suspect in the silver Jaguar, and how both vehicles had followed him northbound on Victoria Park Avenue, and had tried to force him off the road; (4) how the driver of the silver Jaguar had deliberately “rear ended” him and then fired a gun at him; (5) how Marcus Ragobeer had been “unable to remain stationary” as he “feared for his safety;” (6) how the police observed the “extensive damage” that had been done to the complainant’s vehicle; and (7) how the complainant had subsequently “provided an interview” to another police officer.
• In section 4.4 of the ITO, the affiant outlined the details of the investigation undertaken by the “Criminal Investigation Bureau” of the TPS and the “victim statement” that was provided by the complainant (on July 6, 2019), from the report that was prepared by Detective Christopher Burke, one of the officers who was involved in the interview. According to the affiant, this report by Detective Burke outlined that the complainant explained: (1) how he had purchased some food at a McDonald’s restaurant at Danforth Avenue and Coxwell Avenue; (2) how he came to be stopped at the traffic lights at Main Street as he subsequently headed east on Danforth Avenue; (3) how the dispute arose between he and the driver of the Jaguar vehicle; (4) how the driver of the silver Jaguar followed him southbound on Main Street, and how the complainant had seen him talking on his phone; (5) how the driver of the Jaguar had engaged in various attempts to “cut [him] off,” which forced the complainant to drive in particular directions; (6) how a second vehicle, a black Mazda 3 with blue LED lights, had appeared following a phone call from the suspect in the silver Jaguar, and how both vehicles had followed him northbound on Victoria Park Avenue, and had tried to force him off the road; (7) how the driver of the silver Jaguar had “deliberately rammed” his vehicle at a high rate of speed, “attempting to force the vehicle” being driven by the complainant “off the road;” (8) when the complainant slowed his vehicle to try to assess the damage done to his vehicle, how the driver of the Jaguar “pulled along side” and “pointed a firearm at him through the passenger side” and “fired one shot at the victim;” (9) how the complainant then called 911, while “still being pursued” by the driver in the Jaguar; and (10) the “extensive damage” that was done to the complainant’s vehicle.
• In sections 4.7 to 4.10 of the ITO, the affiant outlined information about the “suspect motor vehicle”, namely, a silver, 2009 Jaguar XF, with a particular Vehicle Identification Number (VIN), and bearing Ontario license plate number CFMK 913. In this part of the ITO, the affiant also included information about how the vehicle had been operated in a “dangerous” fashion in a separate incident on January 10, 2019, and how the driver of the vehicle had “fled from police.” The affiant also explained that the vehicle was owned by a company named “Lecos Auto Sales” and that a representative of that company, when contacted, had admitted that it owned the vehicle, but that it was currently leased to an individual in Oakville. The representative also indicated, however, that the “tracking device” that had been installed on the vehicle in order to monitor compliance with the contractual terms of the lease, showed that the vehicle was in the vicinity of 124 Sandyhook Square in Toronto. The affiant indicated, in this part of the ITO, that when police officers attended at this area, they found the Jaguar unoccupied and parked in the driveway of the residence located at 123 Sandyhook Square, in the area of Steeles Avenue and Birchmount Road in Toronto, with a “tarp” covering it.
• In section 4.11 of the ITO, the affiant outlined information concerning the seven “residents of 123 Sandyhook Square” in Toronto. The accused, Jameal Johnson, was one of those residents.
• In section 4.12 of the ITO, the affiant outlined information concerning the “potential suspect – Jameal Johnson,” including a number of photographs of him, the details of his “extensive criminal record,” the details of some of his “reported incidents” outlined in the Versadex system, the fact that he currently has “six firearm prohibitions,” that there is an outstanding warrant for his arrest (from Halifax), and that his driver’s license was currently suspended. The lengthy criminal record of the accused consumes nearly four full pages of the ITO. The affiant also indicated that the accused does not possess a firearms license, and that no firearms are registered to him.
• In section 4.13 of the ITO, the affiant outlined information about the “photo line-up” that was conducted by the police on July 6, 2019. More particularly, the affiant indicated that the complainant reviewed some 12 photographs of males who looked “similar” to the accused, and that the complainant “positively identified” the photograph of the accused as being a photograph of the person who was operating the Jaguar, and who “discharged the firearm at the victim.”
• In the remaining sections of the ITO, the affiant outlined his reasonable and probable grounds to believe that certain offences were committed by the accused in Toronto, on July 6, 2019, why he believed that the items proposed to be seized would be located at the places proposed to be searched, and why the things proposed to be seized will afford evidence of the alleged offences.

3. The Additional Specific Defence Arguments

[18] Apart from his arguments that the search warrants should be quashed due to their general alleged legal inadequacy, defence counsel for the accused advanced a number of specific arguments regarding the validity of the impugned search warrants. I reject all of them.

[19] First, defence counsel argued that because the video recording of the interview statement of the complainant taken on July 6, 2019, has been subsequently lost, the search warrants must be quashed. Defence counsel suggested that the search warrants had to be quashed because the issuance of the warrants depended entirely upon that video recorded interview statement. I disagree.

[20] The impugned search warrants do not depend at all upon the video recorded interview statement of the complainant. Indeed, there is simply no mention made anywhere in the ITO of the affiant, of any video recording of any police interview statement of the complainant. The contents of that interview are predictably referred to by the affiant, in the ITO, in summarizing the “reports” that were prepared by Detective Constable Sunega and Detective Burke, but there is no mention made of any video recording of that interview statement.

[21] Accordingly, it would simply make no sense to now quash search warrants because a piece of evidence, that was not in any way relied upon in the ITO used to obtain the search warrants, was subsequently lost. Of course, the interview itself clearly took place, and its contents were predictably referred to in the ITO, but the subsequent loss of the video recording of that interview cannot justify the quashing of the search warrants.

[22] Second, defence counsel argued that the affiant had failed in his duty to make full, fair and frank disclosure to the issuing justice in his ITO, as he had failed to advise the justice, in his ITO, that the complainant then faced a charge of “threatening.” I agree that, if the complainant faced a criminal charge of “threatening” at the time the affiant prepared the ITO seeking the search warrants in this case, this information should have been gathered by the affiant and included in the ITO given to the issuing justice. This information touches upon the credibility and reliability of the complainant. See, for example: R. v. Titus, [1983] 1 S.C.R. 259, 2 C.C.C. (3d) 321; R. v. Davison, DeRosie and MacArthur (1974), 6 O.R. (2d) 103, 20 C.C.C. (2d) 424 (C.A.).

[23] The affiant, Detective Constable Cristian Sirbu of the TPS, was permitted to give evidence on this subject. In so doing, he readily agreed that he should have included any relevant information in his ITO touching upon the credibility and reliability of the complainant, including any information about any potential criminal record and/or any outstanding criminal charges, and that he was not trying to hide anything from the justice. Indeed, Detective Constable Sirbu testified that he had been trained in the duties of an affiant, seeking the issuance of a search warrant, and it was his practice to include just such information in an ITO. Detective Constable Sirbu explained, however, that in this case he mistakenly did not conduct this usual check, or include any such available information in his ITO in the present case. He explained that this was an “oversight” on his part, given that he had to prepare the ITO in a hurry, and that there was a lot of “pressure” on him, given that there were many police officers waiting for the proposed search warrants in the vicinity of 123 Sandyhook Square in Toronto on the night of July 6-7, 2019. Detective Constable Sirbu testified, that while he had “missed” checking on the background of the complainant at the time he drafted the impugned ITO, he now knew that the complainant had no criminal record. I accept all of this candid, honest evidence.

[24] While the amplification of the ITO by this evidence provides a small piece of evidence that potentially provides some negative information about the credibility and reliability of the complainant, I have no hesitation concluding that the search warrants still could properly have been issued by the justice in this case. Even if the complainant had already been convicted of this outstanding alleged “threatening” offence, as well as other offences, and was not presumed innocent of the alleged offence, I fail to see how the justice could realistically have refused to issue the proposed search warrants in the present case. In this regard, it must be recalled that the complainant called the 911 emergency number while the offences were unfolding, and the damage done to the complainant’s Toyota Camry is exactly what one might reasonably expect from the “ramming” of his vehicle that the complainant described. In short, in my view, whether or not there was an outstanding charge of “threatening” against the complainant, was of very little consequence in the issuance of these two search warrants.

IV

The Lost Evidence

The Video Recording of the Complainant’s Interview Statement

[25] As I have already mentioned, the video recording of the interview statement of the complainant taken on July 6, 2019, has been subsequently lost. Accordingly, this video recording is not available for disclosure to defence counsel for the accused. Defence counsel contends that the loss of this evidence should result in: (1) all of the criminal proceedings against the accused being immediately stayed; or (2) the exclusion of virtually all of the evidence in this case, including the viva voce testimony of the complainant and the physical evidence obtained by the police as a result of their execution of the search warrants.

[26] I reject the suggestion that the loss of this evidence should result in the exclusion of any other evidence. Further, in my view, the suggestion that the proceedings in this case should be permanently stayed should be heard at the conclusion of this case, after the verdict is rendered by the jury, if the accused is found guilty, and if the accused is still then inclined to seek the stay of proceedings. In short, in my view, the defence application to stay the proceedings in this case is premature. That said, I will provide some brief comments on the evidence that I have heard on this issue so far.

[27] Constable Stephen Mugford, a 13-year veteran of the TPS, and the original Officer-in-Charge of this case, was permitted to give viva voce testimony in this case, concerning how it came to be that the video recording of the complainant’s interview statement on July 6, 2019, was eventually lost and ultimately could not be disclosed to defence counsel for the accused.

[28] Constable Mugford testified that, on July 6, 2019, at approximately 10:00 a.m., the complainant was interviewed by two of the investigating officers in this case. This took place in one of the three interview rooms at the 55 Division station that was, at the time, outfitted with three different systems for potentially recording interview statements. First, there was the digital “DVAMS” system. Second, the computer system present in each room had a DVD burner, so that the interview could be recorded on a blank DVD. Third, there was the “Jenn Tech” system that automatically video recorded a statement.

[29] Constable Mugford testified that, while he was not in any way engaged in taking the interview statement of the complainant on July 6, 2019, he sought to get a copy of the video recording of that statement in December of 2020, when a disclosure request was first made in this case. Constable Mugford explained that, at that point, he was simply unable to obtain a digital copy of the complainant’s video recorded interview statement.

[30] Constable Mugford explained that, when he made inquiries about the availability of this interview statement, he was told, by the TPS “IT” officers, that the DVAMS system was “not operational” at the time of the interview statement, and that the Jenn Tech system only maintained the video recording for one year and one day before it was automatically purged from the system. Constable Mugford testified that he did not know any of this – he did not know that the DVAMS system had not been operational on July 6, 2019, and he did not know that the Jenn Tech system had a retention period of only one year and one day and that video recorded statements kept longer than that retention period would be automatically purged from the system. Constable Mugford thought that the Jenn Tech system saved recorded interviews “forever.” He thought that there was simply no risk that any recorded statement could be lost. He clearly learned differently in December of 2020. Further, Constable Mugford testified that the officers who conducted the interview of the complainant on July 6, 2019, simply did not create a DVD of the interview at the time it took place. I accept all of this evidence.

[31] Further, I am satisfied, based upon the explanatory evidence of Constable Mugford, that this video recorded interview statement was lost by virtue of the combination of technological problems and human error. In my view, it was not lost as a result of any “unacceptable negligence” on the part of any police officer, nor was it lost as a result of any “abuse of process.” The fact that an understandable human error has contributed to the loss of certain evidence – even certain important evidence – does not automatically mean that the evidence was lost due to “unacceptable negligence” on the part of a police officer. See: R. v. La, [1997] 2 S.C.R. 680, 116 C.C.C. (3d) 97; R. v. St. Clair, 2023 ONCA 266.

[32] Nevertheless, as I have indicated, the defence argument that the proceedings in this case should be permanently stayed should be heard at the conclusion of this case, after the verdict is rendered by the jury, if the accused is found guilty, and if the accused is still then inclined to seek the stay of proceedings.

V

Timely Implementation of the Right to Counsel

[33] Defence counsel argued that there was a violation of the accused’s right to counsel in this case, in violation of s. 10(b) of the Charter of Rights, when the police did not promptly take any reasonable steps to try to implement the accused’s assertion of his right to counsel. I agree with this submission.

[34] On this aspect of this application, I heard the viva voce testimony of a number of police officers with the TPS, and I accept their evidence. Without reviewing the details of all of their evidence, the key aspects of this evidence reveal the following facts:

• On October 13, 2020, Constables El Halabi and Lam of the TPS were tasked by their superior from 55 Division to travel to the Central North Correctional Centre in Penetanguishene, to arrest the accused and then return him to the 55 Division station in Toronto. It seems that the accused was present at this facility serving a sentence, and he was about to be released. The two officers left the Toronto area at 7:13 p.m., and arrived at the Correctional Centre at 9:24 p.m. Accordingly, the trip took them well in excess of two hours to complete.
• The TPS police officers took physical custody of the accused, almost immediately upon their arrival, and certainly with a couple of minutes of 9:24 p.m., and they placed him under arrest. Constable Lam then advised the accused of his right to counsel, as required by s. 10(b) of the Charter. This took place in the “sally port” entrance to the facility, at approximately 9:30 p.m. The accused indicated that he understood his right to counsel, and he asked to speak to his own lawyer, namely, Glenn Orr. The accused made it clear that he did not wish to speak to duty counsel. Constable Lam told the accused that he would be put in touch with his lawyer as soon as possible.
• Neither of the two TPS officers made any inquiries of any of the staff at the Central North Correctional Centre about: (1) the ability of the facility to permit the accused to speak privately with his lawyer over the phone; and/or (2) the ability of the facility to provide the officers with a computer that they could use to get the phone number for defence counsel. Accordingly, neither of the officers knew if this was possible or not. They knew, however, that they could not provide the accused with the necessary privacy to have a conversation with his lawyer in the “sally port” of the correctional facility.
• In any event, the two arresting TPS officers then travelled, with the accused in their custody, from Penetanguishene to Toronto, leaving Penetanguishene at approximately 9:32 p.m., and ultimately arriving at the 55 Division station at 11:18 p.m.
• This was the general practice of Constable El Halabi whenever he was tasked with the transportation of a prisoner. He always waited to get back to his own police station before he sought to implement any discussion between the accused and their counsel.
• During the course of this trip, neither of the TPS officers asked the accused any questions, nor sought to elicit any information from him about any of the alleged offences. The officers simply transported him to Toronto.
• The officers (and the accused) arrived at the “sally port” entrance to the 55 Division station at 11:18 p.m. They waited there until they were summoned into the Division, and the accused was paraded before the Booking Sergeant at 11:55 p.m. The booking process was completed at 12:08 a.m. on October 14, 2020, and the accused was placed in a cell in the Division at 12:12 a.m.
• It was at that point in time, 12:12 a.m. on October 14, 2020, that one of the arresting TPS officers sought to contact one of the police investigators in this case (i.e. Detective Constable Khan), and also began to take steps to try to contact defence counsel for the accused, Mr. Glenn Orr.
• At 12:48 a.m. Constable El Halabi placed a telephone call to Mr. Orr and, not being able to contact him at that time of night through his business phone number, left him a voice mail message to contact the 55 Division station regarding the accused.
• Shortly thereafter, at 1:00 a.m., the two arresting TPS officers went off duty. No one communicated to the accused about what had been done in relation to the implementation of his right to counsel, and what steps had been taken to contact Mr. Orr. The arresting TPS officers thought that someone else would “follow up” to see that the accused was able to eventually get in touch with his lawyer, but they took no steps to ensure that was done.
• The accused was never contacted by defence counsel and no further calls were placed to Mr. Orr, or any other counsel, on behalf of the accused. This fact is reflected in the “detention record,” which tracks any and all calls involving the accused. Detective Costello testified that while TPS officers are required to make “reasonable efforts” to contact counsel on behalf of an accused, there was no established protocol that suggested, for example, that a call had to be made to counsel every hour.

[35] Based upon this evidence, I find the key facts to be as follows. The accused was arrested by members of the TPS, at the Central North Correctional Centre, at approximately 9:24 p.m. on the evening of October 13, 2020. Within a few minutes, by 9:30 p.m., the accused was properly advised of his right to counsel under s. 10(b) of the Charter of Rights, and the accused indicated that he wished to exercise that right by speaking to his lawyer, Glenn Orr. The TPS officers knew that it would be approximately a two-hour trip back to Toronto, as they had just made that same trip (in reverse), so they knew that it would be no sooner than 11:30 p.m. before any steps could be taken to try to put the accused in contact with his lawyer, even if Mr. Orr was available and awake at that hour of the night, and there were no delays in returning to the 55 Division station.

[36] In these circumstances, in my view, the TPS officers ought to have realized that simply waiting to return to Toronto would not likely be an effective and timely implementation of the accused’s important constitutional right to counsel. Accordingly, the arresting TPS officers should have, at a minimum, taken steps to try to ascertain the practical availability of facilities at the Central North Correctional Centre for the timely and effective implementation of the accused’s right to counsel. The TPS officers could not, of course, guarantee the practical availability of such facilities. For example, they might have been told that such facilities were not, or could not be made available. But, the TPS officers were obliged, in my view, to at least make the effort to find out. Instead, by failing to try to contact Mr. Orr on behalf of the accused until 12:48 a.m. in the early morning hours of October 14, 2020, when Mr. Orr would, predictably, have been asleep in bed, not answering his business phone, and not returning any messages left on that business phone, the TPS officers failed to act in a way that sought to implement the accused’s right to counsel in a timely fashion, in violation of s. 10(b) of the Charter of Rights.

[37] As I indicated in R. v. Mensah, 2022 ONSC 5091, at paras. 30-31, once an accused has been arrested, and is in the custody of the police, the police are obliged to comply with an accused’s expressed desire to speak with counsel “with dispatch,” as the “constitutional rights of the accused must be complied with in a timely fashion.” Further, s. 10(b) of the Charter expressly states that everyone has the right, on arrest or detention, “to retain and instruct counsel without delay” and to be informed of that right. This constitutional provision makes it clear that the police must provide the accused with his or her right to counsel “without delay” (i.e. immediately) – and that is not achieved simply by telling the accused about this right without delay. See also: R. v. Black, [1989] 2 S.C.R. 138, 50 C.C.C. (3d) 1, at pp. 152-153; R. v. Smith, [1991] 1 S.C.R. 714, 63 C.C.C. (3d) 313, at p. 728; R. v. Borden, [1994] 3 S.C.R. 145, 92 C.C.C. (3d) 404, at p. 166; R. v. Suberu, 2009 SCC 33, 2 S.C.R. 460, at paras. 2, 37-42; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at paras. 2, 21, 24-29; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 20-26; R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at paras. 24-34.

VI

The Admissibility of the Evidence

[38] I have concluded that the accused was unconstitutionally deprived of his right to counsel, in violation of s. 10(b) of the Charter of Rights, on the evening of October 13-14, 2020. This is the only Charter violation that I have found on this application by the accused. Nevertheless, given my conclusion regarding s. 10(b) of the Charter of Rights, I must determine the admissibility of evidence under s. 24(2) of the Charter.

[39] Defence counsel argues that, in the result, I should exclude all of the evidence in this case, including all of the physical evidence that the police seized when they executed the impugned search warrants on July 7, 2019. Otherwise, defence counsel contends, s. 10(b) of the Charter “has no teeth.”

[40] With respect, this argument by defence counsel sounds very much like the proposed application of a rule of “automatic exclusion.” Such a rule simply has no application in Canada.

[41] One need look no further than the provisions of the Charter of Rights itself to appreciate that clear and unmistakeable reality. According to s. 24(2) of the Charter of Rights, where an accused has brought an application, under s. 24(1) of the Charter, for an “appropriate and just” remedy for an alleged violation of his or her “rights or freedoms,” and the court has concluded that “evidence was obtained in a manner that infringed or denied any rights or freedoms” guaranteed by the Charter, the evidence “shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute” [emphasis added]. Accordingly, it is apparent that, no matter how “generous” the interpretation may be of the language in s. 24(2) of the Charter, evidence can only be excluded if that evidence was “obtained in a manner that infringed or denied” some right or freedom protected by the Charter of Rights [emphasis added].

[42] The Crown argues that I should not exclude any evidence in this case. In her submissions on this issue, Ms. Hebert quite accurately noted that any violation of s. 10(b) of the Charter in the present case did not result in the police gathering any evidence. The TPS officers did not question the accused, or in any way try to elicit any information or evidence from him during the course of their lengthy return trip to Toronto. In short, the TPS officers fully honoured their duty to “hold off” trying to elicit any evidence from the accused pending his private discussion with counsel. Further, the Crown contended that there was absolutely no connection – temporal, contextual, causal, or otherwise – between: (1) the events of July 6, 2019 and the execution of the search warrants the next day; and (2) the violation of the right to counsel, which took place well more than a year later, and which did not result in the police obtaining any evidence.

[43] I must say that I agree with the position advanced by the Crown in relation to this issue. In the result, no evidence will be excluded in this case. See: R. v. Boutros, 2018 ONCA 375, 361 C.C.C. (3d) 240, at paras. 24-26, at paras. 7-30; R. v. Hobeika, 2020 ONCA 750, 153 O.R. (3d) 350, at paras. 69-90; R. v. Do, 2019 ONCA 482, at para. 9; R. v. Desilva, 2022 ONCA 879, at paras. 90-91; R. v. Daye, 2022 ONCA 675, at paras. 7-8; R. v. Tim, 2022 SCC 12, at paras. 78-80.

[44] In R. v. Hobeika, Doherty J.A., delivering the judgment of the Court of Appeal for Ontario, stated, as follows, at paras. 76-78:

[Defence counsel] … submitted that once Hobeika demonstrated a breach of s. 10(b), he was entitled to a remedy under s. 24(2), meaning at least some part of the evidence against Hobeika should be excluded. I disagree. Section 24(2) does not create an automatic rule of exclusion applicable to evidence obtained in a manner that infringed a constitutional right. Instead, s. 24(2) requires the accused to establish “having regard to all the circumstances the admission of it [the evidence] in the proceeding would bring the administration of justice into disrepute”: see R. v. Lenhardt, 2019 ONCA 416, at para. 11.

Given the very broad reading favoured by the courts, of the phrase “obtained in a manner” in s. 24(2), the breach of Hobeika's s. 10(b) rights could trigger the exclusion of evidence obtained in the searches of the two condominium units and Hobeika's vehicle: see R. v. Pino, 2016 ONCA 389, at paras. 50-78; R. v. Wittwer, …, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21; R. v. Rover, 2018 ONCA 745, at para. 35; R. v. Lichtenwald, at paras. 54-63. Any violation of Hobeika's s. 10(b) rights could not, however, constitutionally taint evidence obtained by the police through the execution of subsequent lawful warrants and production orders days or even weeks later: R. v. Boutros, 2018 ONCA 375, at paras. 24-26.

The admissibility of evidence under s. 24(2) falls to be determined by the now well-known three-pronged line of inquiry laid down in R. v. Grant, …, 2009 SCC 32, [2009] 2 S.C.R. 353. The focus of that inquiry is identified at para. 70 of Grant:

Finally, s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

[emphasis added – some citations omitted]

[45] These conclusions apply with at least equal force in the present case. Here, the violation of s. 10(b) of the Charter took place more than a year after the alleged offences and the execution of the lawfully issued search warrants, and resulted in the police obtaining no further evidence against the accused. To now exclude evidence wholly unconnected to the subsequent breach of s. 10(b) of the Charter could only be accomplished by a rule of automatic exclusion designed to punish the police, without regard to the long-term repute of the administration of justice.

[46] Similarly, in R. v. Do, 2019 ONCA 482, [2019] O.J. No. 3018, the Court of Appeal for Ontario considered the question of the admissibility of evidence that was obtained by the police through their execution of a valid search warrant, even though, later that same day, but after the execution of the search warrant, the police violated the implementation component of the accused’s right to counsel under s. 10(b) of the Charter, by their three hour delay, following his arrest, in putting him in touch with counsel. However, the Court of Appeal concluded, as follows, with respect to the admissibility of the evidence obtained by the police during the earlier search, at paras. 9-11:

The earlier seizure of the drugs and other items under a valid search warrant properly executed was a transaction largely completed at the time of the appellant’s arrest, and was not precipitated by it, as in Pino. It was causally, temporally and contextually distinct and separate from the arrest, in the sense captured by Doherty J.A. in R. v. Plaha (2004), … , 188 C.C.C. (3d) 289 (Ont. C.A.), at para. 45:

The evidence will be “obtained in a manner” that infringed a Charter right if on a review of the entire course of events, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct. The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal or a combination of the three. The connection must be more than tenuous: R. v. Goldhart (1996), … , 107 C.C.C. (3d) 481 (S.C.C.) at 492-97.

The facts in this case are quite unlike those in Pino, where Laskin J.A. noted, at para. 73:

Here, the two s. 10(b) breaches along with the s. 8 breach meet the “obtained in a manner” requirement. The marijuana seized from the trunk of Ms. Pino’s car and all three Charter breaches are part of the same transaction. That transaction or the common link between the evidence and the breaches is Ms. Pino’s arrest.

Because the earlier seizure of the drugs and other items under a valid search warrant properly executed was a transaction largely completed at the time of the appellant’s arrest, it was causally, temporally and contextually distinct and separate from the arrest. Any possible breach of s. 10(b) in the time following the appellant’s arrest does not attach to that evidence.

[emphasis added – some citations omitted]

[47] Again, these conclusions apply with at least equal force in the present case. In this case, the violation of s. 10(b) of the Charter took place more than a year after the alleged offences and more than a year after the execution of the lawfully issued search warrants and the evidence obtained by the police at that time. The subsequent breach of s. 10(b) of the Charter of Rights resulted in the police obtaining no additional evidence against the accused. In short, there was not even a “remote” or “tenuous” connection between: (1) the evidence obtained by the police on July 6-7, 2019; and (2) the subsequent breach of s. 10(b) of the Charter on October 13-14, 2020. To now exclude the evidence lawfully obtained by the police over a year before the violation of the accused’s right to counsel, would serve only to harshly punish the investigating police officers for reasons unconnected to their investigative conduct, while providing the accused with an undeserved, constitutional “windfall.” The long-term repute of the administration of justice prevents the making of any such extravagant and needless exclusionary order. See also: R. v. Goldhart, [1996] 2 S.C.R. 463, 107 C.C.C. (3d) 48; R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235; R. v. Tim, at paras. 78-80.

[48] In short, the denial of the right to counsel in this case, under s. 10(b) of the Charter, was wholly unconnected, in any meaningful and effective way, with the gathering of any evidence by the police in this case. Accordingly, I need not engage in any further consideration of the potential application of s. 24(2) of the Charter in the circumstances of this case.

VII

Conclusion

[49] Accordingly, in the result, this omnibus pre-trial application by the accused under the provisions of the Charter of Rights, is dismissed. The trial of this matter will proceed upon its merits, and none of the evidence gathered by the police will be excluded.

Kenneth L. Campbell J.

Released: June 12, 2023

COURT FILE NO.: CR-21-10000-498 DATE: 20230612 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING - and - JAMEAL JOHNSON Pre-Trial Charter Ruling K.L. Campbell J. Released: June 12, 2023