Court File and Parties
Court File No.: CR-23-90000608 Date: 2024-07-23 Ontario Superior Court of Justice
Between: His Majesty the King, Respondent And: Sayzer Sherif, Applicant
Before: Nishikawa J.
Counsel: Kristan Jazvac and Ashli Pinnock, for the Crown Michael Wong, for the Applicant
Heard: May 26-28, 2024
Ruling on Charter Application
Overview
[1] On August 4, 2022, the Applicant, Sayzer Sherif, was pulled over by members of the Toronto Police Service while driving on Lakeshore Boulevard. The officers observed what they suspected was cocaine in the driver’s footwell of the vehicle. A search incident to arrest revealed approximately 270 grams of cocaine and $11,380 in Canadian currency in the vehicle.
[2] The Applicant is charged with one count of possession of a controlled substance and one count of possession of proceeds of crime.
[3] The Applicant has brought an application under ss. 7, 10(a) and 10(b) of the Charter to exclude the drugs and money located during the search. In brief, the Applicant alleges that:
(a) the police failed to inform him of the reason for the initial traffic stop;
(b) the police failed to inform him of the reason for his arrest;
(c) the police breached his right to counsel by delaying his access to counsel and by asking him questions after he had indicated that he wanted to speak with counsel;
(d) the police further breached his right to counsel by dissuading him from speaking with counsel before the strip search was conducted; and
(e) the police muted their body worn cameras (BWC) at various points during the investigation, thereby depriving him of evidence and disclosure.
[4] For the reasons that follow, I dismiss the application.
Factual Background
[5] At approximately 10:18 p.m. on August 4, 2022, PC Marsha Almond and PC Elijah Osei-Wusu of the TPS observed a white Volkswagen Passat driving erratically and at a high speed eastbound on Lakeshore Boulevard West. They initiated a traffic stop and pulled the vehicle over on Lakeshore Boulevard between Spadina Avenue and Rees Street.
[6] PC Almond approached the driver side and PC Osei-Wusu approached the passenger side of the vehicle. PC Almond observed Mr. Sherif alone, sitting in the driver’s seat of the vehicle. The Applicant rolled down the driver’s side window and PC Almond advised him that the officers’ BWCs were recording. While doing so, PC Almond shone her flashlight into the driver’s area of the vehicle and observed a small, clear bag containing a white substance on the floor next to the Applicant’s feet. PC Almond believed that the bag contained cocaine.
[7] Upon making this observation, PC Almond immediately directed the Applicant to “get out” of his vehicle. The Applicant cooperated with her demands. At 10:20 pm, he was removed from the vehicle and handcuffed by PC Osei-Wusu and PC Almond.
[8] At 10:21 pm, PC Almond began a search of the vehicle incident to arrest while PC Osei-Wusu escorted Mr. Sherif to the officers’ scout car. At that time, PC Osei-Wusu asked the Applicant two questions, as further detailed below. PC Osei-Wusu then conducted a pat down search of the Applicant and located a wallet containing the Applicant’s driver’s license in his pants pocket.
[9] At 10:22 pm, PC Osei-Wusu advised the Applicant that he was under arrest for possession of a Schedule I substance. PC Osei-Wusu then advised the Applicant that he had a right to contact Legal Aid and provided him with the telephone number. Following the pat down search, the Applicant was placed in the rear seat of the scout car.
[10] At 10:23 pm, PC Osei-Wusu read Mr. Sherif his rights to counsel from his memo book. The Applicant indicated that he would need to call “somebody.” PC Osei-Wusu told the Applicant that the police would facilitate a call to a lawyer at the station once they could afford him privacy. PC Osei-Wusu then returned to the vehicle to assist PC Almond with the search.
[11] At 10:24 pm, PC Osei-Wusu requested backup over the police radio. At 10:39 pm, PC Claude Moore arrived on scene. Two additional officers, PCs Borsboom and Rho, arrived at 10:50 p.m.
[12] During the search of the vehicle, PCs Almond and Osei-Wusu located 270 grams of cocaine, $11,380 in Canadian currency, two digital scales, and two cell phones in various locations in the vehicle and trunk. The cocaine was packaged in small clear bags and small clear glass vials; in total, there were 23 bags and 48 vials of cocaine throughout the vehicle.
[13] At 11:04 p.m., PCs Almond and Osei-Wusu transported Mr. Sherif to 14 Division, where he was booked and strip searched.
[14] At 12:30 am, PC Osei-Wusu placed a call to duty counsel and left a voicemail message. Duty counsel called back at 1:05 am and spoke to the Applicant for approximately 20 minutes.
Issues
[15] This application raises the following issues:
(a) Did the police breach the Applicant’s right to be informed promptly of the reason for his arrest pursuant to s. 10(a) of the Charter?
(b) Did the police breach the Applicant’s rights to counsel under s. 10(b) of the Charter by failing to hold off on questioning him until his right to counsel could be facilitated?
(c) Did the police breach the Applicant’s rights under s. 10(b) of the Charter by conducting the strip search before he could speak to counsel?
(d) Did the police officers’ muting of their BWCs breach the Applicant’s right to disclosure under s. 7 of the Charter?
(e) If the Applicant’s Charter rights were breached, should this court exclude the evidence seized from the Applicant’s vehicle?
Analysis
Were the Applicant’s Rights under Section 10(a) Breached?
The Applicable Principles
[16] Section 10(a) of the Charter guarantees every person arrested or detained the right to be informed promptly of the reasons for the detention or arrest. One aspect of s. 10(a) is to inform an individual why they are being detained; the other aspect is to inform the individual of the extent of their jeopardy so they can exercise their right to counsel in a meaningful way: R. v. Nguyen, 2008 ONCA 49, 232 O.A.C. 289, at para. 20. As a minimum requirement, individuals who are detained “must therefore be advised, in clear and simple language, of the reasons for the detention”: R. v. Mann, 2004 SCC 52, 187 Man. R. (2d) 1, at para. 21.
Application to the Facts
[17] In this case, the Crown concedes that the police breached Mr. Sherif’s s. 10(a) rights when the officers failed to advise him of the reason for the initial traffic stop. The Crown denies that the officers breached the Applicant’s s. 10(a) rights by failing to provide him with the reason for his arrest.
[18] The Crown argues that the s. 10(a) breach with respect to the reason for the traffic stop is minor because there was insufficient time for the officers to advise the Applicant of the reason for his initial detention before PC Almond formed grounds to arrest him for possession of a Schedule I substance.
[19] The recording from PC Almond’s BWC shows that at 10:19 pm, Mr. Sherif lowered the driver side window, and PC Almond informed him that they were being recorded. A few seconds later, she told the Applicant to “get out” twice without telling him why. PC Almond told Mr. Sherif to undo his seatbelt and then grabbed his arm. By this time, PC Osei-Wusu had also come around to the driver side of the vehicle. The Applicant stepped out of the vehicle with an officer holding each of his arms. As he was doing so, he asked, “Can I ask what’s going on?”
[20] The recording of PC Osei-Wusu’s BWC shows that at 10:21 pm, he told the Applicant he was under arrest for the possession of a Schedule I substance and that he would provide him with rights to counsel later. PC Osei-Wusu then advised the Applicant that he had a right to contact Legal Aid and provided him with the telephone number. Following the pat down search, the Applicant was placed in the rear seat of the scout car.
[21] At 10:23 pm, PC Osei-Wusu read Mr. Sherif his rights to counsel from his memo book. When asked if he understood his rights, the Applicant responded, “I heard you.” When asked if he wanted to speak with a lawyer, the Applicant responded, “I have to call somebody. Yeah.” PC Osei-Wusu told the Applicant that the police would facilitate a call to a lawyer once they were at the station.
[22] PC Almond explained in her testimony that after advising the Applicant that they were being recorded, she was about to advise him the reason for the traffic stop when she saw a baggie with a white substance that she believed to be cocaine in the driver’s side footwell. She then ordered the Applicant out of the vehicle. PC Almond admitted that she should have informed the Applicant of the reason for the stop. She further admitted that she should have told him the reason for the arrest as he was getting out of the vehicle. PC Almond explained that she neglected to do so because of inexperience. She had not previously made a traffic stop resulting in an arrest for possession of drugs.
[23] PC Almond further explained that she grabbed Mr. Sherif’s arm because, during a traffic stop earlier that day, the driver drove away and fled. Based on her candour and acknowledgement that she made a mistake, I find DC Almond to be a credible witness. Her testimony about how quickly the events unfolded is corroborated by the BWC recordings.
[24] As conceded by the Crown, the officers’ failure to inform Mr. Sherif of the reason for the stop was a breach of his s. 10(a) rights. The failure to advise the Applicant of the reason for the stop is to some extent explained by the rapidly changing nature of the investigation, which began as a traffic stop. PC Almond then formed grounds to arrest Mr. Sherif within approximately eight seconds of arriving at the vehicle.
[25] Instead of then advising the Applicant of the reason for his arrest, PC Almond ordered him rather abruptly out of the vehicle. The Applicant could not have known what was going on. As PC Almond admitted, the Applicant was “confused.” When Mr. Sherif asked if he could ask what was going on, neither officer responded. However, he was told the reason for his arrest approximately 30 seconds later.
[26] Mr. Sherif testified that he was confused and scared, because of a previous experience he had when a police officer pointed a gun in his face and searched his vehicle while he was working. Mr. Sherif stated that because of that experience, he tried to comply as much as possible but remained confused and did not understand what was going on.
[27] Strictly speaking, the failure to advise Mr. Sherif of the reason for his arrest was also a breach of s. 10(a). However, the breach was brief because after PC Osei-Wusu led the Applicant to the scout car, he immediately informed him of the reason for his arrest. The Applicant was thus advised of the reason for his arrest within a minute of being told to get out of the car. In addition, I accept DC Almond’s evidence that her failure to advise Mr. Sherif immediately the reason for his arrest was inadvertent. While the Applicant’s s. 10(a) rights were breached, I find that the breach was minor in nature.
Were the Applicant’s Rights under Section 10(b) Breached?
[28] The defence submits that the Applicant’s rights to counsel under s. 10(b) were breached in the following three ways:
(i) through the delay in facilitating his rights to counsel;
(ii) by asking him questions after he said he wanted to speak to counsel; and
(iii) by getting him to accede to the strip search before speaking to counsel.
[29] The Crown concedes the following breaches of the Applicant’s s. 10(b) rights:
(i) there was a delay of 14 minutes in facilitating rights to counsel;
(ii) the police asked four questions in breach of the duty to hold-off; and
(iii) the police suggested that the Applicant accede to a strip search before speaking with duty counsel.
[30] The Crown takes the position that in the circumstances, the s. 10(b) breaches were minor or inadvertent and had no impact on the Applicant.
The Applicable Principles
[31] Section 10(b) of the Charter guarantees that any person arrested or detained has the right to retain and instruct counsel without delay and to be informed of that right. In R. v. Bartle, [1994] 3 S.C.R. 173, at pp. 191–92, the Supreme Court of Canada reiterated that s. 10(b) of the Charter imposes the following duties on state authorities conducting an arrest or detention:
(1) 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;
(2) 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
(3) 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).
[32] The purpose of the s. 10(b) right is to “allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights…”: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 21. The right is meant “to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.” Ibid.
[33] Where an accused person requests to speak to counsel, the arresting officer is under a duty to facilitate the requested access to a lawyer at the “first reasonably available opportunity” including providing access to a telephone: Taylor, at paras. 24 and 28. The Crown bears the burden of demonstrating that a given delay was reasonable in the circumstances.
[34] The breach commences when the police fail to implement rights to counsel at the earliest opportunity: R. v. Keshavarz, 2022 ONCA 312, 507 C.R.R. (2d) 222, at para. 90. Courts have recognized that in specific circumstances, some delay is justifiable to ensure officer safety, public safety, the preservation of evidence, and the safety of others by securing the scene of an arrest or search. Such concerns must be case-specific as opposed to general: Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at paras. 26–27. Even if such circumstances exist, the police must take reasonable steps to minimize the delay in granting access to counsel: Rover, at para. 27.
[35] In addition, once a detainee has invoked the right to counsel, police must refrain from questioning the detainee “until such time as the implementational component of the right to counsel has been accommodated”: Keshavarz, at para. 75. This is also known as the duty to hold-off. A violation of s. 10(b) will occur when an officer attempts to elicit incriminating information, even in circumstances where the detainee declines to answer a question: R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at para. 71. The duty to hold-off does not prevent police from asking standard booking questions or other questions designed to assist the accused to exercise his rights, preserve his property, provide care for his family, or protect his health and safety or the health and safety of others”: R. v. Dupe, 2010 ONSC 6594, at para. 24.
Application to the Facts
Delay
(a) Roadside
[36] The defence takes the position that PCs Almond and Osei-Wusu could have permitted the Applicant to call duty counsel from the back of the scout car while they were still on scene and that their failure to do so resulted in an unreasonable delay.
[37] The Crown concedes a delay of 14 minutes from 10:50 pm, when Officers Borsboom and Roh arrived at the site of the arrest, to 11:04 pm, when PCs Almond and Osei-Wusu left the scene to transport Mr. Sherif back to the division. The Crown denies any delay before 10:50 pm on the basis that it was not possible to facilitate a call to counsel before that.
[38] The officers called for backup within a couple of minutes of arresting Mr. Sherif, at 10:24 pm. This was about as soon as they could have requested backup after realizing what they were dealing with. PC Moore arrived at 10:39 pm, shortly before PCs Borsboom and Roh.
[39] There will unavoidably be some “gap in time and place” from when the detained person asserts their wish to speak to counsel and the availability of the methods of implementing communication with counsel: R. v. Devries, 2009 ONCA 477, 95 O.R. (3d) 721, at para. 34. I accept the officers’ evidence that they had to wait for back-up because they could not leave the vehicle unattended and return to the division. During that time, the officers were searching the vehicle. When PC Moore arrived, she was alone. PC Osei-Wusu testified that PC Moore could not take the Applicant back to the division because two officers would be required for booking. He further testified that he had asked PC Moore to assist with having the vehicle towed. Moreover, PC Osei-Wusu’s BWC recording shows him search the front driver seat again between 10:50 and 10:51 pm. PC Osei-Wusu testified that he did that to ensure that the search was thorough before the vehicle was towed.
[40] After PCs Borsboom and Roh arrived at 10:51 p.m., all of the officers engaged in a discussion that was not recorded by their BWCs because they had their cameras muted. As noted above, PCs Almond and Osei-Wusu left for the station at 11:04 p.m.
[41] Based on the evidence of PCs Almond and Osei-Wusu regarding the foregoing sequence of events, I find that it was not possible for them to facilitate a call to counsel until PCs Borsboom and Roh arrived. PC Moore could not transport Mr. Sherif to the station on her own and, in any event, had been tasked with assisting with towing the vehicle. PC Osei-Wusu further searched the vehicle so that it could be towed. Unlike the situation in R. v. Galeano, 2023 ONCJ 227, 535 C.R.R. (2d) 350, the search of the vehicle did not take an inordinately long time.
[42] It was only when the two additional officers. PCs Borsboom and Roh, arrived that PCs Almond and Osei-Wusu were in a position to take the Applicant back to the station. The delay thus commenced at 10:50 p.m. for a total of 14 minutes.
[43] In addition, the arrest took place on the side of Lakeshore Boulevard West, a busy highway, at nighttime. There is audible traffic and noise in the BWC recordings. The only reasonable location for a call to counsel was from the scout car. However, the scout car is equipped with an in-car camera system (ICCS). The TPS ICCS Policy states that when the ICCS is activated, a police officer shall not deactivate it until the incident has concluded, except when the officer “no longer reasonably believes that the collection of audio/video media would support officer or public safety, and/or benefit the investigation”. PC Osei-Wusu testified that he did not believe this exception to apply because he had someone in his vehicle for whom he was responsible. I accept PC Osei-Wusu’s testimony that in the circumstances, he did not think it appropriate to turn off the ICCS to permit Mr. Sherif to make a call to counsel.
[44] In cross-examination, PC Osei-Wusu was asked why he did not ask PCs Borsboom and Roh if they could assist in facilitating the Applicant’s right to counsel. He admitted that he did not ask them if their scout car was equipped with an ICCS but assumed that it was because, with the exception of spare vehicles, most police vehicles are. I agree that it would have made sense to ask if they could assist in facilitating rights to counsel, whether by transporting the Applicant or allowing him to make a call from their vehicle. In any event, it is not necessary to make a finding because this is within the period for which the Crown concedes that there was a delay in facilitating rights to counsel.
[45] When PC Osei-Wusu advised the Applicant of his rights to counsel at 10:23 p.m., he told the Applicant that this would take place in private once they reached the station. While this does not justify or mitigate the delay, the Applicant was at least aware that he would have an opportunity to call counsel once it was feasible.
[46] Accordingly, the delay in facilitating Mr. Sherif’s rights to counsel before getting to the station was 14 minutes.
(b) At the Division
[47] PCs Osei-Wusu and Almond transported the Applicant to 14 Division and arrived at 11:22 pm. They waited in the sally port to begin the booking process. The booking process began at 11:37 p.m. The officers requested a strip search, which was granted by Staff Sergeant Peter Morris. The strip search was completed at 11:53 p.m. PC Osei-Wusu placed the call to duty counsel at 12:30 a.m. The total time from arrival at the division to the call to duty counsel was 78 minutes.
[48] The defence argues that PC Osei-Wusu ought to have placed a call to duty counsel shortly after booking and before performing other administrative tasks, which took him an additional 37 minutes.
[49] PC Osei-Wusu testified that he made the call to duty counsel at the first opportunity after logging the Applicant’s property, moving the scout car from the sally port, and going to the washroom. PC Osei-Wusu testified that he wanted to return to his desk to place the call to duty counsel, so that he could make the call without interruption in case duty counsel answered the call. PC Osei-Wusu stated that at the time he believed he was “moving as fast as I could.”
[50] When asked why PC Almond could not move the scout car, PC Osei-Wusu responded that he did not know what she was doing. PC Almond testified that after Mr. Sherif was booked, she went to log the items that were seized from the vehicle.
[51] Facilitating a call to counsel is an aspect of the constitutionally-protected right to counsel. While logging the Applicant’s property is a part of the booking process and helps ensure that it is returned to him upon release, tasks like logging property and moving the scout car should be a lower priority. I recognize, however, that leaving the scout car in the sally port could cause a delay to the processing of other individuals and their ability to speak to counsel.
[52] It strikes me that PCs Almond and Osei-Wusu ought to have discussed who would do which of the many tasks that remained to be completed and that had they done so, one of them could have placed a call to duty counsel sooner. While there may be efficiency reasons for the order in which PCs Almond and Osei-Wusu conducted their tasks, as a constitutional right, the call to duty counsel ought to have could have taken priority over other administrative tasks.
[53] I further note that when discussing whether a call could be made to duty counsel before the strip search, as discussed below, Staff Sergeant Morris assured the Applicant that the call could be made “as soon as” the search was done. Yet, Mr. Sherif had to wait another 37 minutes.
[54] In the circumstances, while there could be some reasonable delay between booking and placing a call to duty counsel, making the call 37 minutes after booking was not the “first reasonable opportunity”. While I am reluctant to second-guess how long such tasks should reasonable take, I would attribute an additional delay of 15–20 minutes at the station in facilitating Mr. Sherif’s right to counsel.
[55] The total delay in contact duty counsel, including the 14-minute delay roadside, was thus approximately 29–35 minutes.
The duty to hold off
[56] The officers asked the following four questions before Mr. Sherif had an opportunity to speak to counsel:
(i) [You’re] really sweaty.
(ii) Is there anything else I should be aware of?
(iii) Why is your belt undone?
(iv) Anything of value or weapons in the vehicle?
[57] The Crown concedes that even if the questions were not intended to elicit incriminating evidence, there was a risk that the Applicant could have provided incriminating responses.
[58] The first statement was made by PC Almond after she and PC Osei-Wusu handcuffed the Applicant. The Applicant said, “I mean, like, I don’t know… I’m a little confused right now.” PC Almond explained that she was noting her observations verbally for the BWC recording, as she had been trained to do. She testified that it could be relevant to an investigation for impaired driving that the individual was sweaty.
[59] In my view, PC Almond made an observation. Although the Applicant responded, it was not a question eliciting a response from the Applicant.
[60] PC Osei-Wusu asked the second question, “Is there anything else I should be aware of?” after the Applicant had been told that he was under arrest for possession of a Schedule I substance. The Applicant responded, “I don’t have anything on me sir.” PC Osei-Wusu testified that he asked the question before conducting a pat-down search because he wanted to know if the Applicant had a weapon or anything sharp that could injure him.
[61] In my view, the question was very broad and lacked any specific reference to anything that could pose a danger to the officer, whether on the Applicant’s person or in the vehicle. The question was lacking in context and could have elicited an incriminating response. While PC Osei-Wusu had told PC Almond that he was going to search and re-inform the Applicant of his rights to counsel, he did not specifically tell the Applicant that he was going to search him or that the question was being asked in that context. PC Osei-Wusu admitted that the question made no reference to something that could harm him and could have been asked in a much more specific manner. He denied, however, that he asked the question in a broad manner to see if the Applicant would volunteer further information that would assist the investigation.
[62] PC Osei-Wusu then asked the Applicant, just before commencing the pat-down search, “Why is your belt undone?” Mr. Sherif did not respond. At the hearing, PC Osei-Wusu testified that he believed the Applicant could be concealing additional drugs, and that he requested a strip search at the station for that reason. Given PC Osei-Wusu’s suspicions, asking the Applicant why his belt was undone could have elicited a potentially incriminating response.
[63] PC Osei-Wusu asked the fourth question after Mr. Sherif had been taken to the station, while they were waiting in the sally port for booking. The Applicant asked for assistance because he was uncomfortable in the back of the scout car. PC Osei-Wusu responded that the air-conditioning was on. At 11:31 pm, he asked the Applicant, “That vehicle, before we do anything with it, do you have anything of value… is there any weapons in that vehicle?” The Applicant responded, “nah bro.” PC Osei-Wusu then asked, “It’s just what we’ve located?” The Applicant responded, “I don’t have any weapons.”
[64] At the hearing, PC Osei-Wusu explained that he asked the questions because a decision had to be made about whether to have the vehicle towed to a public lot, as opposed to a protected facility. PC Osei-Wusu testified that although they had gone thoroughly through the vehicle, his mind was on public safety, and he wanted to ensure that there was nothing unsafe in the vehicle for which police could be held liable if it fell into the wrong hands. PC Osei-Wusu testified that as a result of the information provided by the Applicant, a decision was made to send the car to a public lot.
[65] On cross-examination, PC Osei-Wusu admitted that the question about whether there was anything other than what they had located was potentially incriminating. He further admitted that he had not told Mr. Sherif what they had located in the vehicle. As a result, when he asked if it was just what they found, Mr. Sherif would not have known how to answer the question and could have volunteered incriminating information, including the location of further contraband.
[66] To the extent that the question related to valuables, it was a permissible inquiry. While there could be a legitimate reason for asking about the presence of a weapon in the vehicle, PC Osei-Wusu testified that they had gone through the vehicle thoroughly. The question also raised the risk of eliciting an incriminatory response.
[67] I reject the Crown’s characterization of the s. 10(b) breach as minor. Aside from PC Almond’s comment, the questions posed by PC Osei-Wusu were problematic because they raised a real risk of the Applicant incriminating himself. In particular, the question about whether there was anything else that the officer should be aware of was so broad and lacking in context or specificity that it practically invited an incriminating response. Asking one such question could be seen as inadvertent or lacking in care as to how the question was worded. Asking three such questions raises a concern that PC Osei-Wusu was attempting to prod the Applicant toward providing information or incriminating himself.
[68] If the duty to hold-off is to have meaning, it must be respected. It is not appropriate to use permissible inquiries as an opening to elicit incriminating information. Moreover, it is not enough to say that the Applicant did not give any incriminating responses.
Failure to facilitate access to counsel before strip search
[69] The defence submits that the police breached Mr. Sherif’s s. 10(b) rights when Staff Sergeant Morris suggested that he accede to the strip search before speaking with duty counsel.
[70] The Crown concedes that this was a “minor breach” of s. 10(b).
[71] The Applicant was paraded before Staff Sergeant Morris at 11:34 pm. During the booking process, PCs Osei-Wusu and Almond requested a strip search of the Applicant because his belt was undone when he was arrested, and they were concerned that he was concealing further substances. The Applicant was frisk searched at 11:42 pm. At 11:46 pm Staff Sergeant Morris advised the Applicant that he was granting the strip search and asked the Applicant if he continued to understand his rights as they were read to him earlier, including the right to call a lawyer or duty counsel. On the videorecording of the booking hall, Staff Sergeant Morris is heard explaining multiple times that the Applicant has a right to speak with a lawyer before the strip search.
[72] The Applicant indicated that he wanted to speak with counsel. He also said that he had to go to the bathroom. Staff Sergeant Morris advised the Applicant that he could not allow him to use the bathroom before the strip search because this would give him an opportunity to consume or destroy any concealed items. Staff Sergeant Morris told the Applicant that they could put a call in to duty counsel but that it could take a long time for them to call back. Staff Sergeant Morris mentioned that duty counsel takes calls for the whole province of Ontario. He also said that the strip search would happen irrespective of what duty counsel would say. PC Osei-Wusu added that calling duty counsel would “delay the process.”
[73] The Applicant asked whether he could use the washroom while supervised by an officer. Staff Sergeant Morris told him this would not be authorized. He then suggested that the Applicant proceed with the strip search so that he could use the washroom sooner and that they would call duty counsel as soon as the strip search was done.
[74] The Applicant agreed to have the strip search conducted prior to speaking with counsel. Mr. Sherif testified that he agreed to do the strip search first because he was not sure how long it would be before he could go to the washroom. PCs Osei-Wusu and Rho commenced the strip search at 11:49 pm and concluded at 11:53 pm. No additional evidence was located during the strip search. Following the strip search, the Applicant was lodged in a cell at 11:54 pm.
[75] In my view, the Applicant acceded to the strip search before speaking to duty counsel because he understood from the discussion with officers that it would be futile to speak to counsel and that waiting to speak to them would only delay his ability to use the washroom. In effect, the Applicant’s expressed desire to speak with counsel was undermined by the discussion with the officers.
[76] Although a discussion with duty counsel was not likely to change the officers’ decision to conduct a strip search, the Applicant was deprived of the opportunity to seek advice that would have been beneficial to him before undergoing that process. That advice would include the applicable guidelines to ensure that the search was conducted in a reasonable manner, the ability to challenge the grounds for the strip search, and the ability to request that the authorizing officer provide a full account of their reasons on the booking hall video: R. v. Tonkin, 2020 ONSC 5206, at para. 32.
[77] Moreover, in my view, the Applicant’s decision to proceed with the strip search before speaking with duty counsel was based on incomplete information.
[78] In cross-examination, PC Osei-Wusu admitted that there was a soundproof room in the booking hall and that a private call with counsel could have taken place in that room. He admitted, however, that he had “no idea” how this would be done because he had never seen it done before. Staff Sergeant Morris testified that had they placed a call to duty counsel during the booking process, they would have to keep Mr. Sherif in the booking hall and supervise him, rather than lodging him in the cells. When asked how long it could take for duty counsel to call back, Staff Sergeant Morris testified that they had waited for as long as 45 minutes for counsel to call back. In other words, it was not impossible but, rather, inconvenient to the officers to place the call to duty counsel from the booking hall.
[79] It is also worth noting that in justifying why he did not place the call to duty counsel until after he completed the administrative tasks, PC Osei-Wusu testified that duty counsel sometimes pick up the call and he wanted to be back at his desk for that. It was thus not a foregone conclusion that Mr. Sherif could not speak to duty counsel before the strip search was conducted.
[80] The Applicant had been told that it often takes a long time for duty counsel to call back but was not told how long or that police are sometimes able to reach duty counsel. It is not clear what Mr. Sherif understood a “long time” to be, whether hours or less than an hour. He was not told that there was a soundproof room in the booking hall where he could have had a private call with duty counsel. If he had been informed of the potential outcomes, he might have decided to wait to use the washroom and have the officers call duty counsel for him. Staff Sergeant Morris testified that he did not think that Mr. Sherif needed to use the washroom urgently.
[81] This is not to suggest that police are required to detail all the potential scenarios as to when and how a call to duty counsel might take place. In the circumstances of this case, however, it was inappropriate to suggest only that there would be a lengthy delay and that speaking with duty counsel would be futile. This one-sided information left the Applicant with the impression that he had little choice but to accede to the strip search before speaking with counsel. While the officers did not pressure Mr. Sherif into acceding to the strip search before speaking with duty counsel, the effect of their comments was to dissuade him from exercising his constitutional rights. In my view, this was not appropriate and was in breach of the Applicant’s s. 10(b) rights.
Summary
[82] Based on the foregoing analysis, the Applicant’s s. 10(b) rights were breached by the delay of 29–35 minutes in facilitating the Applicant’s right to counsel; by failing to hold-off on questioning the Applicant before he had an opportunity to speak to counsel; and by dissuading him from exercising his rights to counsel before the strip search. The Applicant was deprived of legal advice when it could have been helpful to him and was put in a position where he could have incriminated himself. As a result, I reject the Crown’s characterization of the s. 10(b) breaches as minor in nature.
Did the Muting of the Body Worn Cameras by Police Result in a Breach of the Applicant’s Section 7 Rights?
[83] The Applicant submits that the officers muted their BWCs in breach of his right to disclosure under s. 7 of the Charter.
[84] The Crown takes the position that there was no s. 7 breach because there was no obligation to create the recordings.
The Applicable Principles
[85] A defendant’s right to disclosure of relevant information in the possession of the Crown is a component of the right to make full answer and defence. As a result, the failure to preserve information which would be disclosable to the defence will constitute a breach of an accused’s constitutional right to disclosure, as protected by s. 7 of the Charter: R. v. Bero (2000), 39 CR (5th) 291 (Ont. C.A.), at para. 32.
[86] In general, a failure by police to create a recording does not constitute lost evidence: R. v. Virk, 2021 ONSC 3750, 83 M.V.R. (7th) 267, at paras. 22 and 30. In cases where the issue of whether the police have an obligation to record interactions with accused persons has been considered, courts have consistently concluded that, absent evidence of a deliberate, bad faith choice to avoid gathering evidence, failure to activate a camera or other recording device does not amount to a breach of the Charter: R. v. Kurmoza, 2017 ONCJ 139, 376 C.R.R. (2d) 187, R. v. McCoy, 2016 ABQB 240, 32 Alta. L.R. (6th) 73. That is because there is no constitutional or common law requirement for the police to record their interactions with individuals: R. v. Moulton, 2023 ONCJ 140, 524 C.R.R. (2d) 168, at para. 158. See also: R. v. Deesasan, 2018 ONSC 4180, 35 M.V.R. (7th) 322, at paras. 34–35.
Application to the Facts
[87] At 10:33 p.m., PC Osei-Wusu advised PC Almond that he would make a call to the Major Crime Unit. On the BWC recording, PC Osei-Wusu is seen pulling out his cell phone and typing in a phone number. He then muted his BWC. It remained muted until the officers departed for the division. PC Osei-Wusu admitted that after he had muted his BWC, he forgot to unmute it.
[88] PC Almond continued the search while PC Osei-Wusu was on the phone. At 10:46 pm, at the direction of PC Osei-Wusu, PC Almond muted her body-worn camera for approximately one minute. During that time, she did not continue to search the vehicle. PC Almond muted her BWC again at 10:49 pm and it remained muted for the remainder of the recording. PC Almond testified that both times she muted her BWC, it was at PC Osei-Wusu’s request. PC Almond could not recall why her BWC remained muted after she muted it the second time but would not admit that she forgot to unmute.
[89] Both PCs Almond and Osei-Wusu testified that when they muted their BWCs, they believed they were acting in accordance with the TPS Body-Worn Camera Policy because they were discussing investigative techniques. When asked to elaborate, PC Almond testified that she and PC Osei-Wusu discussed matters such as collecting, documenting and processing the evidence, towing the vehicle, and next steps in the investigation. PC Osei-Wusu testified that he told PC Almond to mute her BWC because he wanted to discuss investigative techniques with her but could not recall specifically what.
[90] At 10:51 pm, PCs Borsboom and Rho arrived. All five officers gathered next to the vehicle and had a conversation that lasted until 11:03 pm. The officers’ BWCs were muted during this time. PC Borsboom is seen on the BWC recordings speaking at length. PC Almond testified that during the discussion with PCs Borsboom and Roh, she advised what they had found and PC Borsboom, who had more experience with drug investigations, provided guidance about handling the drugs and how to proceed.
[91] PC Osei-Wusu testified that he and PC Almond discussed logistics such as how to sort all the evidence and take it to the station with PCs Borsboom and Roh. During that discussion, PC Osei-Wusu is seen on the BWC recording looking into the vehicle a few more times. He denied, however, that they spoke about searching the vehicle.
[92] The TPS Body Worn Camera Policy states that once an officer’s BWC is recording, it “shall not be stopped, muted or deliberately repositioned until the event has concluded or your involvement in that event has concluded”. The policy then lists exceptions, including “discussions between Service Members about protected investigative techniques, where those discussions are taking place away from any member of the public”.
[93] Based on the testimony of PCs Almond and Osei-Wusu, it is not clear to me that the officers were always discussing “protected investigative techniques” when their BWCs were muted. Not all steps in an investigation are protected investigative techniques. Logistics such as labelling, sorting and transporting evidence or towing the vehicle would not constitute investigative techniques. In my view, the officers interpreted protective investigative techniques more broadly than the exception provided for in the TPS BWC Policy.
[94] Both officers also neglected to unmute their BWCs once their discussions were concluded. PC Osei-Wusu admitted that he forgot to unmute. While PC Almond did not admit that she forgot, she could not recall why she did not unmute her BWC. Muting the audio of a BWC is problematic because, as is evident, it is too easy to forget to unmute, which then defeats the purpose of the BWC recording.
[95] Nonetheless, in the circumstances, I find that the officers’ failure to record audio was not a breach of the Applicant’s right to disclosure under s. 7. The police had no constitutional obligation to create the recording. The TPS BWC Policy is an internal policy, not a statutory obligation, and it does not create a constitutionally protected right to an audio and video recording: Kurmoza, at para. 17, citing R. v. McCoy, 2016 ABQB 240, 32 Alta. L.R. (6th) 73.
[96] While the defence relies on R. v. Azfar, 2023 ONCJ 241, 530 C.R.R. (2d) 279 to support its position, that case involved a deliberate choice by police to mute an already running camera to avoid capturing evidence they knew was important to the investigation and would be disclosable to the defense: at para. 25. In this case, there is no evidence of mala fides.
[97] Moreover, under the TPS BWC Policy, the primary objective of BWC recordings is to document officers’ interactions with members of the public during the execution of their duties. Neither PC Almond nor PC Osei-Wusu interacted with Mr. Sherif while their BWCs were muted. PC Osei-Wusu did open the rear passenger door of the scout car once to check on the Applicant while the BWC was muted. However, he opened the door for such a short time period that it is unlikely that any interaction took place. PC Osei-Wusu did not recall any discussion between them at that time.
[98] The officers deployed their BWCs to capture evidence they knew was relevant and disclosable. While they intended to mute only during discussions of protected investigative techniques, as they understood them, they neglected to unmute their BWCs. The evidence of what was said during the approximately 30 minutes that PC Osei-Wusu’s and PC Almond’s BWCs were muted is, however, available to the Applicant through their testimony and the testimony of other officers on scene.
[99] The defence argues that if the officers discussed facilitating rights to counsel while their BWCs were muted, this could impact the Applicant’s ability to make full answer and defence in relation to his Charter application. However, neither PC Almond nor PC Osei-Wusu recalled discussing facilitating rights to counsel during those conversations. Given that PC Osei-Wusu told the Applicant that a call to counsel would be facilitated at the division, and that he did not turn his mind to having PCs Borsboom and Roh facilitate rights to counsel, I find it unlikely that such a discussion took place.
[100] Accordingly, I find that the muting of the BWCs by the officers did not result in a breach of the Applicant’s s. 7 right to disclosure.
Should the Evidence be Excluded?
The Applicable Legal Principles
[101] Section 24(2) of the Charter allows the court to exclude evidence obtained in a manner that violated an individual’s Charter rights, where admitting the evidence would bring the administration of justice into disrepute.
[102] In determining whether evidence was “obtained in a manner” that infringed on a Charter right, the connection between the evidence and infringement need not be causal in nature. The connection may be temporal, contextual or causal, or a combination of the three. In this case, the Crown concedes that there is a contextual connection between the breaches and the discovery of the evidence.
[103] The second issue is whether the admission of the evidence would bring the administration of justice into disrepute. In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71, the Supreme Court of Canada held that in determining whether the admission of evidence would bring the administration of justice into disrepute, the court must balance the following three factors:
(i) The seriousness of the Charter-infringing state conduct;
(ii) The impact of the breach on the Charter-protected interests of the accused; and
(iii) Society’s interest in the adjudication of the case on its merits.
[104] In assessing the seriousness of the breach, the court is required to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct: Grant, at para. 72. The overarching concern is to maintain public confidence in the rule of law and its processes.
Application to the Facts
[105] The first line of inquiry focuses on the extent to which the state conduct at issue deviates from the rule of law.
[106] The defence does not suggest any deliberate attempt to infringe the Applicant’s rights, but argues that the cumulative effect of the Charter breaches amounts to gross negligence. In my view, while the Applicant’s ss. 10(a) and 10(b) rights were breached, I have found no wilful or reckless disregard of Charter rights that would have a negative effect on the public confidence in the rule of law and bring the administration of justice into disrepute. The 10(a) violation was brief, largely inadvertent and arose from the fast-changing circumstances after the initial traffic stop. The s. 10(b) violations, while not inadvertent, are on the moderate end of the spectrum and would not undermine public confidence in the rule of law.
[107] In terms of the impact of the breaches on the Applicant’s Charter-protected interests, Mr. Sherif testified that he was confused and felt helpless as a result of the officers’ initial failure to inform him of the reason for the stop and arrest, and the delay in being able to speak to counsel. However, the Applicant’s confusion is not entirely attributable to the officers’ conduct because they advised him of the reason for arrest and when he would be able to speak to counsel. Moreover, the breaches of ss. 10(a) and 10(b) did not lead the Applicant to incriminate himself and there is no causal connection between the breach and the discovery of evidence: R. v. Hamouth, 2023 ONCA 518, 167 O.R. (3d) 682, at para. 54–55. The drugs had already been located in the course of a lawful search of the vehicle. The Applicant provided no inculpatory evidence in response to PC Osei-Wusu’s questions at the roadside, nor at any other point in the investigation. In my view, the impact of the breaches on the Applicant’s Charter-protected interests was limited.
[108] In respect of the third prong of the Grant inquiry, the evidence is reliable and is essential for the adjudication of the merits of the charges against Mr. Sherif. The Crown submits that the seized evidence is necessary for the prosecution. The exclusion of relevant and reliable evidence can undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective — thereby bringing the administration of justice into disrepute. The exclusion of highly reliable evidence impacts more negatively on the repute of the administration of justice when such exclusion “effectively guts the prosecution”: Grant, at paras. 81 and 83.
[109] While the investigation was imperfect, no bad faith can be found with the police conduct in the circumstances. In my view, the reputation of the administration of justice would be more likely to suffer from the exclusion of the evidence than by its admission.
[110] Accordingly, my weighing of the Grant factors favours the inclusion of the evidence as opposed to exclusion of the evidence.
Conclusion
[111] For the foregoing reasons, the application is dismissed.
“Nishikawa J.” Released: July 23, 2024