Publication Ban Warning

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15; 2015, c. 13, s. 19

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court of Appeal for Ontario

DATE: 20231218 DOCKET: C69863 Thorburn, Coroza and Copeland JJ.A.

BETWEEN

His Majesty the King Respondent

and

Safwat Sadek Appellant

Counsel: Nathan Gorham and Breana Vandebeek, for the appellant Rebecca De Filippis, for the respondent

Heard: December 11, 2023:

On appeal from the convictions entered on August 26, 2021 by Justice Lawrence Feldman of the Ontario Court of Justice.

REASONS FOR DECISION

[1] The appellant appeals from his convictions for criminal harassment, uttering a threat to cause death, four counts of impersonating a peace officer, and four firearm/weapons offences.

[2] The offences arose out of an extramarital affair between the appellant and the complainant that ended badly. The complainant alleged that the appellant stalked and harassed her, that he had a gun and on more than one occasion pointed it at her and threatened to kill her, and that he claimed to be a police officer and drove around in a vehicle with flashing lights. The complainant’s evidence of harassment was corroborated by screenshots from her phone of texts sent by the appellant and of repeated phone calls to her within very short time periods on various dates. The complainant’s evidence of the appellant impersonating a police officer was corroborated by the evidence of four security guards from her apartment building, who testified that a man, who the trial judge found to be the appellant, attended at the building in a vehicle with flashing red and blue lights claiming to be a police officer. Physical evidence seized from the appellant’s two vehicles provided further corroboration. In the appellant’s Chrysler, the police found a BB-gun (which it was agreed is a “firearm” as defined in s. 2 of the Criminal Code of Canada, R.S.C., c. C-46), ammunition, and a blue and white “light package”. In his Nissan, the police found a stun gun (which it was agreed is a “prohibited weapon” as defined in s. 84 of the Criminal Code), a balaclava, and a set of handcuffs.

[3] The sole ground of appeal relates to the admissibility of the evidence found in the searches, conducted with warrants, of the vehicles.

[4] After hearing oral submissions from the appellant, we did not call on the Crown to respond and dismissed the appeal with reasons to follow. These are our reasons.

Background and the trial judge’s Charter ruling

[5] The central Charter issues in this case arise out of police reliance on a purported authority to “freeze” the appellant’s apartment and vehicles before search warrants were obtained. On this basis, officers entered and stayed in the appellant’s apartment and seized his Chrysler by towing it, prior to search warrants being issued. The officers were stationed in the apartment through the evening and overnight until they were permitted to execute the search warrant. [1]

[6] On the morning of September 2, 2019, the complainant attended at 42 Division and made the allegations outlined above. Based on the information she provided in a two-hour statement, the police believed they had grounds to arrest the appellant.

[7] The police attended at the appellant’s apartment shortly after 1:00 p.m. He was not home, but they spoke to his wife. The appellant’s wife contacted the appellant by phone, and the appellant then called the police at the division. They told him the nature of the allegations and asked him to attend at the division. The appellant drove to the division in his Nissan. He was arrested shortly after 2:00 p.m. The lawfulness of the arrest was not challenged at trial.

[8] The officers who attended at the apartment at 1:00 p.m. left the apartment after speaking to the appellant’s wife. They went to the common underground parking garage of the condominium to locate the appellant’s vehicles. They found the appellant’s Chrysler there.

[9] Officers commenced steps to obtain search warrants for the apartment and both vehicles. However, asserting that they were concerned about preservation of evidence, officers entered the appellant’s apartment just before 3:00 p.m. on September 2. There was dispute about whether the appellant’s wife invited them into the apartment. The trial judge found that, in any event, she did not give informed consent to the officers staying in the apartment. At least two officers stayed in the apartment throughout the night, while the appellant’s wife was sleeping. Although they mainly stayed in the foyer, the officers went into the kitchen and other parts of the apartment from time to time to see the appellant’s wife and hear if she was doing anything inside her room.

[10] The police action in relation to the vehicles was as follows. On the evening of September 2, the police placed seals on the exterior of the Nissan that the appellant drove to the station, pending obtaining a search warrant. With respect to the Chrysler, initially, the police stationed an officer in the condominium garage to watch the vehicle, pending a search warrant being obtained. However, at some point in the afternoon of September 2, the police decided to tow the Chrysler to the division, pending obtaining a search warrant. When the tow truck arrived, it did not fit in the garage. The officers obtained the keys to the Chrysler from the appellant’s wife and an officer drove the vehicle out of the garage to the tow truck. The officer who drove the Chrysler out saw light bars in plain view inside the vehicle when he was in it. He did not seize the light bars at that time. The Chrysler was sealed prior to being loaded on the tow truck. Both vehicles were searched the next day pursuant to search warrants.

[11] The trial judge found that the officers staying in the apartment, from the time of the entry in the afternoon until the next morning when the search warrant was executed, infringed the appellant’s s. 8 Charter rights. He found that there were no exigent circumstances to justify the police entering and staying in the apartment. He also found that entering and staying in the apartment was not justified by the need to preserve evidence pending the issuance of the search warrant, as the evidence did not support a finding of imminent danger of loss, removal, or destruction of evidence. The types of evidence reasonably expected to be in the apartment were physical items of the sort that the appellant’s wife would not be able to dispose of without leaving the apartment (and the apartment did not have a balcony). The trial judge found there were less intrusive means to address any asserted concerns about preserving evidence pending the search warrant, such as by stationing an officer outside the unit. We pause to note that the Crown does not challenge this factual finding on appeal.

[12] The trial judge excluded the evidence seized from the appellant’s apartment. He recognized the high expectation of privacy in a home and the intrusiveness of the police staying in the apartment throughout the afternoon and night. He found that the breaches related to the apartment were rooted in police ignorance of applicable Charter standards. His reasons are forcefully critical of the police for their actions in relation to the apartment. In light of his finding that there were no exigent circumstances and no need to stay in the apartment in order to preserve evidence pending the execution of the search warrant, the trial judge found that the breach was sufficiently serious that the items seized from the apartment must be excluded.

[13] The trial judge found that the delays in making a report to a justice, pursuant to s. 489.1(1) of the Criminal Code (three days for the Chrysler and two months for the Nissan), infringed the appellant’s s. 8 Charter rights. Further, in relation to the Chrysler, the trial judge found that the police decided to tow the vehicle to the division merely for convenience. Stationing an officer with the vehicle would have been sufficient to address concerns of preserving evidence pending obtaining a search warrant. However, he found that the seizure of the vehicle was lawful under s. 489(2) of the Criminal Code. The trial judge characterized the officer seeing the light bars in plain view when he entered the Chrysler to drive it out of the garage as “effectively a search” (although the light bars were not physically seized at that time) in breach of s. 8 of the Charter.

[14] The trial judge declined to exclude the items seized from both vehicles when they were searched the next day pursuant to search warrants. He characterized the Charter breaches in relation to the vehicles as “technical”, and not supporting exclusion under s. 24(2) of the Charter.

[15] No challenge was taken at trial to the search warrants which authorized the searches of the vehicles.

Analysis

[16] The appellant argues that the trial judge erred in failing to consider the seriousness of the breaches in relation to the apartment in his analysis of whether the evidence seized from the vehicles should be excluded. He argues that the breaches in relation to the apartment were very serious, and that the evidence seized from the vehicles was contextually, temporally, and causally connected to the Charter breaches related to the apartment. Thus, the evidence seized from the vehicles was “obtained in a manner” that was connected to the Charter breaches relating to the apartment in the sense described in cases such as R. v. Strachan, [1988] 2 S.C.R. 980, at pp. 1005-06; R. v. Plaha (2004), 188 C.C.C. (3d) 289 (Ont. C.A.), at para. 45; and R. v. Pino, 2016 ONCA 389, 337 C.C.C. (3d) 402, at para. 74. The appellant also argues that the seizure of the Chrysler prior to obtaining the search warrant was not within the scope of the powers of seizure under s. 489(2) of the Criminal Code, and that the trial judge erred in so finding.

[17] The Crown concedes that the evidence seized from the vehicles is at least contextually and temporally connected to the Charter breaches involving the appellant’s apartment such that, in addition to any breaches directly related to the vehicles, the evidence from the vehicles was “obtained in a manner” that is tied to the Charter breaches in relation to the apartment. However, the Crown argues that the trial judge did not err in declining to exclude the evidence seized from the vehicles. The breaches directly related to the vehicles were not serious and the evidence obtained from the vehicles was reliable. Exclusion of the evidence from the apartment, which had a more compelling contextual link to the serious Charter breaches relating to the apartment, was sufficient to signal that the courts do not condone the serious breaches in relation to the apartment. The Crown further argues that, even if the evidence from the vehicles were excluded, the convictions should be upheld relying on s. 686(1)(b)(iii) of the Criminal Code.

[18] Although the trial judge found that the seizure of the Chrysler was lawful pursuant to s. 489(2) of the Criminal Code, there was limited argument on this issue before him. For purposes of the analysis that follows, we assume, without deciding, that s. 489(2) was not applicable in the circumstances. The result of this assumption is that there was no lawful authority for the police to remove the Chrysler from the garage before the search warrant was issued and doing so infringed s. 8 of the Charter.

[19] The trial judge’s s. 24(2) analysis regarding the items seized from the vehicles was brief compared to his 24(2) analysis for the items seized from the apartment. He did not expressly advert to the question of whether the items seized from the vehicles were “obtained in a manner” connected to the Charter breaches related to the apartment. In fairness, no submissions were made at trial regarding the “obtained in a manner” issue; although, the defence did rely at trial on the argument that there was a pattern of Charter breaches as a factor aggravating the seriousness of the breaches.

[20] We accept that the evidence seized from the vehicles was at least contextually and temporally linked to the Charter breaches involving the apartment. However, we do not accept the appellant’s argument that it would bring the administration of justice into disrepute to admit the evidence seized from the vehicles.

[21] In light of the temporal and contextual connection between the Charter breaches related to the apartment and the later seizure of the items from the vehicles, the Charter breaches in relation to the apartment must be weighed in the s. 24(2) balance for the items seized from the vehicles. However, we see no error in the trial judge’s conclusion that the evidence seized from the vehicles should not be excluded. In our view, even taking into consideration the breaches related to the apartment, and assuming that the removal of the Chrysler from the garage was not within the scope of s. 489(2), and thus was a s. 8 Charter breach, the s. 24(2) balancing does not support excluding the evidence seized from the vehicles, applying the analysis from R. v. Grant, [2009] 2 S.C.R. 353.

[22] Under the first Grant factor, the Charter breaches by the police in relation to the apartment were serious, but their connection to the items seized from the vehicles was remote as compared to the connection to the items seized from the apartment. The Charter breaches related to the apartment were intrusive of the right to privacy in the home – a highly valued privacy interest: R. v. Silveira, [1995] 2 S.C.R. 297, at pp. 363, 367-68; R. v. Feeney, [1997] 2 S.C.R. 13, at pp. 45-47. But that intrusiveness as it related to the home did not carry over to the vehicles.

[23] Under the second Grant factor, although the breaches in relation to the apartment had a significant impact on the appellant’s privacy interest in the apartment, they had no impact on his privacy interest in the vehicles.

[24] Further, the impact on the appellant’s Charter rights from the Charter breaches related to the vehicles was negligible, for two reasons.

[25] First, the appellant’s privacy interest in the vehicles was less than in the apartment – the appellant’s home.

[26] Second, the Charter breaches that related directly to the vehicles were much less serious than the breaches related to the apartment. They were closer to the technical end of the spectrum: Grant, at para. 76. The only Charter breach in relation to the Nissan was the delay in making a report to a justice, pursuant to s. 489.1(1) of the Criminal Code. While there is no question that the failure to make a timely return under s. 489.1(1) infringes s. 8 of the Charter, as the trial judge recognized, that infringement had little impact on the appellant’s Charter protected interests.

[27] Regarding the Chrysler, the impact on the appellant’s Charter rights of the officer briefly driving the vehicle out of the garage and then prematurely towing it was minimal. Although the officer who drove the Chrysler out of the garage saw the light bars, he did not seize them. Rather, once the Chrysler was driven out of the garage, officers sealed the vehicle pending obtaining the search warrant. We agree with the trial judge’s finding that the police ought not to have seized the Chrysler by towing it prior to obtaining a warrant when they could simply have stationed an officer in the garage until the warrant was obtained. That said, the impact on the appellant’s Charter protected interests was very low in light of the fact that the police did not search either vehicle until they obtained the search warrants. The validity of the search warrants was not challenged. Nor did the appellant argue, or lay an evidentiary foundation at trial to suggest, that the reasonable and probable grounds in support of the search warrants relied on information obtained as a result of the Charter breaches.

[28] Under the third Grant factor, the evidence was reliable real evidence, although not essential to the Crown having a viable prosecution.

[29] Considering all of these factors together, admitting the evidence obtained in the searches of the vehicles would not bring the administration of justice into disrepute. The trial judge excluded the fruits of the search of the appellant’s apartment and expressed strongly that the conduct in relation to the apartment was an intrusive breach of Charter rights and was unjustified. We see no error in the conclusion that it would not bring the administration of justice into disrepute to admit the evidence seized from the vehicles. The exclusion of the items seized from the apartment, which had a close connection to the serious Charter breaches related to the apartment, was sufficient to express that the courts, as institutions responsible for the administration of justice, do not condone the intrusive Charter breaches by the police directly related to the apartment: Grant, at para. 72; R. v. O’Brien, 2023 ONCA 197, 424 C.C.C. (3d) 108, at paras. 31, 61.

[30] As we find that that trial judge did not err in declining to exclude the evidence obtained in the searches of the vehicles, it is not necessary to consider the Crown’s argument that, even if the evidence seized from the vehicles were excluded, the convictions should be upheld using the curative proviso.

[31] The appeal is dismissed.

“Thorburn J.A.”

“S. Coroza J.A.”

“J. Copeland J.A.”

[1] The search warrant for the apartment was obtained shortly after 11:30 p.m. However, it did not permit night entry. The police executed the warrant the next morning at approximately 8:30 a.m.