Court File and Parties

Court File No.: 15-5722

Date: March 21, 2017

Ontario Court of Justice

Between:

Her Majesty the Queen

— AND —

Mohamed Hamed

Before: Justice Julie Bourgeois

Heard on: September 1st, 2016, November 7-8th, 2016 and January 19th, 2017

Reasons for Judgment released on: March 21st, 2017

Counsel:

• Mr. S. Fitzpatrick — counsel for the Crown
• Mr. L. Russomanno — counsel for the accused Mohamed Hamed

Introduction

[1] Mohamed Hamed is charged that on August 31, 2015, he possessed 30 grams or more of cannabis marijuana contrary to s. 4(4) of the Controlled Drugs and Substances Act; that he resisted Cst Boldirev's arrest contrary to s. 129(a) of the Criminal Code and finally that he possessed without justification counterfeit 100$ bills of Canadian and American currency, contrary to s. 450(b) of the Criminal Code.

[2] The officer and the accused provide two different versions of events but this matter revolves around the arrest of the accused after the officer pulled him over as a result of what was described as an abrupt lane change, a pungent odor of fresh marijuana and observations of flakes inside the vehicle and the officer's concerns for his safety coupled with the flight risk of the accused, resulting in two full force punches to the accused's face. The contraband was located inside the vehicle and the wallet of the Defendant following his arrest.

[3] Counsel on behalf of Mr. Hamed argued that his client's Charter-protected rights pursuant to s. 7, 8, 9 and 10 were breached and the trial proceeded by way of a blended voir-dire in this regard. The Crown conceded a breach of s. 10(b) as the right to counsel was not provided immediately after the arrest. The nature, possession and continuity of the substance were admitted. The counterfeit nature of the bills was also admitted but the possession was disputed. The identity, date and jurisdiction are not disputed. The sole issues were the lawfulness of the seizure of those items and the exclusion of the evidence pursuant to s. 24(1) or (2) of the Charter.

[4] The questions are as follows:

1. Was the arrest lawful?
2. Was the warrantless search reasonable?
3. Were the reasons for detention provided and was the right to counsel implemented?
4. Did the officer use excessive force?
5. Should the evidence be excluded pursuant to s. 24(1) or (2)?

The Evidence

The evidence of Cst Nikolas Boldirev

[5] Two witnesses were heard: the investigating officer, Cst Nikolas Boldirev and the defendant, Mr. Mohamed Hamed.

[6] Cst Nikolas Boldirev testified that he has been employed as a police officer for 11 years. For five years prior to his employment with the Ottawa Police Services, he was employed by the Canadian Forces Police.

[7] On the night of August 31, 2015, at 1:52 am, while in his marked cruiser on Baseline Road, east of Woodroffe Avenue, he observed a vehicle, ahead of him by two or three car lengths, traveling westbound on Baseline, west of Woodroffe Avenue perform an abrupt lane change from what he described as lane two (on the left) to lane one (on the right), closest to the curb, without signaling. He testified that Baseline Road, west of Woodroffe Avenue has three lanes. He did not agree with the suggestion that the lane in which the vehicle was in merges into the right lane. He could not tell how long the vehicle had been on Baseline Road for or the speed limit on that segment of the road or the speed the vehicle was travelling at, but it was not speeding.

[8] He noted that the roads were dry, the visibility was good and there was no traffic on the road or any pedestrians. The lane change without signaling did not cause him to maneuver or alter his path. There was no other reason to stop the vehicle other than this lane change without signaling. At the end of the cross-examination, he agreed that not signaling a lane change if no other vehicles or pedestrians are around, might not be an offence but then he added that in this case, it was enough to bring his attention to it because it was very abrupt and he added that it was more a veer or a swerve. He agreed that it was not characterized as such in his notes but he did have an independent recollection of it. He still confirmed that he did not have to take any actions whatsoever and he was not affected by this lane change.

[9] He activated the emergency equipment to conduct the traffic stop and the vehicle stopped in the parking lot of an apartment complex on the north side of Baseline road. He testified that he approached the driver's side and began speaking to the driver, advising him of the reason for the stop and requesting his driver's license, the ownership for the vehicle, and the proof of insurance. He testified that while speaking to him, he was shining his flashlight inside the vehicle. Mr. Hamed provided the requested documents and he noticed that the permit was not signed in ink. There might have been other questions such as who the vehicle belonged to or where he was coming from or going to. He testified that it was not necessarily his intention to issue a ticket for this lane change infraction as he takes into account the cooperation of the driver in answering his questions.

[10] He testified that he then observed what he described as a "pungent" odor of fresh or vegetative marijuana inside the vehicle at this point. He explained that throughout his career, he dealt with marijuana hundreds of times and during his training he was exposed to both vegetative and burnt marijuana and as a result he is familiar with both states and able to distinguish the smell of both states.

[11] With the use of his flashlight and by introducing his head slightly inside the fully opened window of the vehicle, very close to the driver at that point, he testified that he was able to observe flakes of what he believed to be marijuana on the floor of the van between the door and the driver's seat. The vehicle was otherwise perfectly clean and in re-examination, he explained that this was why those flakes stood out. He testified in cross-examination that he was of course concerned for his safety being in a vulnerable position, close to the person but that sometimes an officer has to put himself at risk in order to gain more facts. He also testified that he did not question Mr. Hamed but rather he alerted him to his observations of the smell and the flakes. He explained that he was not concerned with his answer as he knew what he was observing but he made a note in his notebook that Mr. Hamed denied the odor and the flakes.

[12] Cst Boldirev testified that he then requested that Mr. Hamed exit the vehicle and he arrested him at 1:54 am. He took physical control of him and placed him in handcuffs behind his back and walked him to his cruiser, where he searched him, locating two cellular phones and a wallet. He intended to place him in the rear of his cruiser with the intention to then go search his vehicle.

[13] The officer testified that when he went to place him in the rear of his cruiser, Mr. Hamed began resisting by physically tensing and becoming rigid, planting his feet and therefore making it obvious to him that he did not want to go inside the police vehicle. In chief, he testified that he forced him inside the cruiser by pulling, pushing and twisting him eventually inside the cruiser. In cross-examination, he testified that he believes he issued the following verbal commands: "stop resisting" and "get into the vehicle".

[14] The officer testified that once he used the "empty hand soft technique" (characterized as pulling, pushing and twisting) and was able to place his body in the cruiser but his legs and feet were outside of the cruiser and he attempted to get up.

[15] At this point in his examination in chief, the officer says that he wanted to stop for second and talk about placing someone in a cruiser. He testified that he has arrested hundreds of people and was present for the arrest of hundreds more. He describes that a vital point of the arrest is when the person is placed in the cruiser for what he learned were two reasons: 1- because it is that person's last glimpse of freedom and he could flee if he chose to; 2- because the officer is very exposed: the door is opened and sometimes the detainee requires a bit of assistance in placing his feet inside the cruiser because of the limited space so the officer has to square off to the detainee and the detainee can spit, bite and kick the officer in the face or "where the sun does not shine". So it is a vital time.

[16] He then resumed his testimony where he had left it off to provide the court with this information and repeats that at this point Mr. Hamed attempted to get up. He testified that this was a good opportunity for him to get hurt as Mr. Hamed was trying to get out of the cruiser without having received such directive from the police. He concluded that Mr. Hamed was trying to escape. As a result, he issued two distractionary strikes to the head, face or neck area. He concluded it was successful as Mr. Hamed entered the cruiser without further incident. In cross-examination, he confirmed that the strikes were full force, as hard as he could, on a scale of 1 to 10, the force he used was 10. He confirmed that at no point did Mr. Hamed attempt to assault him. He then testified that he had never met Mr. Hamed and did not know what he was capable of doing, not knowing if, for example, he had a military training or MMA (mixed martial arts) training, so even though he was cuffed to the back, it did not mean that he was unable to hurt him or escape as he has seen many people handcuffed with very limited space being able to get their hands in front. But he agreed with counsel, that Mr. Hamed had not done so here.

[17] In re-examination, he explained the "use of force continuum" describing the various levels of police interactions and how all components are fluid to respond to the changing behavior of the subject. He summarized that he used the verbal command initially to get him into the vehicle, then the soft technique of pulling and pushing and finally the "open hand hard control" with the two strikes to the head or facial area when Mr. Hamed attempted to get up.

[18] Cst Boldirev testified that once he succeeded in securing Mr. Hamed into the cruiser, he then searched the vehicle and seized three or four flakes he was able to gather from the floor of the vehicle and place them in an evidence bag. He then testified that he observed a backpack in plain view, on the floor behind the seat and the main pouch zipper was open. He searched the bag and found two Ziplocs containing what he estimated at the time to be approximately 200 grams of marijuana; a scales and a grinder with residue or dust of marijuana. Unfortunately, he lost the grinder but he seized the marijuana, the scale and the backpack. As he searched the wallet, he located, in an inner pocket compartment found in the middle fold, Canadian and American currency bills and seized them both.

[19] At 2:05 am, approximately 11 minutes after the arrest, he read Mr. Hamed his rights to counsel and Mr. Hamed responded that he wanted to speak to a lawyer. Mr. Hamed was not provided with the opportunity to consult with counsel. Cst Boldirev explained that due to officer's safety related to hygiene he does not allow a detainee to use his personal phone. He does not allow detainees to use their own phone either because he does not know if they are indeed calling a lawyer and finally, he is unsure about the reasonable expectation of privacy in a police car. The officer testified that for as long as he has been a police officer, he has never heard of, seen it or himself never allowed a detainee to contact a lawyer at the roadside. In re-examination, he also added that Mr. Hamed did not ask him to make a call to a lawyer and did not ask for his cell phone to be return at this point. He testified that he did not ask any question to Mr. Hamed related to the criminal investigation.

[20] Ultimately, Mr. Hamed was released to his father, after the officer confirmed Mr. Hamed had no warrant for his arrest but indeed neither any history nor any mug shot of him in the police databank or system. The officer testified that even though he was able to determine that the permit was valid and that he was driving his father's vehicle, because he did not have a photograph to confirm his identity (his driver's license was a sheet of paper at that time), he asked Cst Keenan, who had just attended his location, to get Mr. Hamed's father to confirm who he said he was. He returned the iPhone he had seized following Mr. Hamed's arrest but he suspected the BlackBerry phone with a damaged screen was stolen and did not return that one.

[21] He testified that the accused was not happy with him and considered him a little abusive verbally, filming the officers with the use of his iPhone. In chief, he testified that Mr. Hamed was trying to get a further altercation but that his father was able to calm him down and it ended after two or three minutes. In cross-examination, he explained that he does not recall what were Mr. Hamed's words or how he tried to get a further altercation but concluded that was his intention from his tone and his demeanor.

[22] The officer prepared a "Use of Force Report" in relation to this incident.

The evidence of the defendant, Mohamed Hamed

[23] Mr. Hamed was 19 years of age at the time of these events and 20 years old when he testified. He has no criminal record, was never charged with a criminal offence prior to these events and had been the subject of four to six traffic stops.

[24] Earlier that evening, he had been to his friend's house near the Bayshore area. He and approximately five of his friends had plans to go to a cottage the next day for a week since this was the last week of the summer for them. They had all contributed 140$ each and at around 9:00 pm or late that afternoon, he purchased the marijuana for him and his friends for their week at the cottage. When he purchased the drug, it was in that Ziploc bag. He hung out with his friends and consumed some marijuana but not from that bag. In fact, he testified that he did not open that bag of marijuana and the marijuana he smoked that evening with his friends was already twisted into a cigarette. He placed the Ziploc bag in his backpack and did not take it out of that backpack while driving. He had placed the backpack underneath the passenger's seat.

[25] He testified that him and one of his friend benefited from a special offer at a business off Merivale road that day in the morning to clean and vacuum his father's vehicle. He testified that he never smoked in his father's vehicle and always made sure it was clean because his father would be upset at him if he found out about drugs in his vehicle. Once, after his father found out he was smoking marijuana he had been unpleased with him, describing him as "freaking out" when he caught him. He did not want to disappoint his father and if his father was to find crumbs or flakes in his vehicle he would never let him drive it again. He also explained that he would use air fresheners hanging on the mirror in the vehicle and body spray to leave a fruity or laundry-like smell when he would come into the car or leave the car.

[26] He left his friend's house around 1:00 am, taking the highway onto Pinecrest, east bound. He exited onto Woodroffe Avenue and turned right onto Baseline Road. There was no one else around at that time. He had noticed a car but did not know it was a police car as it was further away when he first noticed it. He noticed it was a police vehicle when he was on the bridge on Baseline road (from the Google maps filed as Exhibit 6, the bridge is approximately 100 meters from the merging right lane from Woodroffe onto Baseline and approximately 25 meters before the entrance to the parking lot of the apartment building where he resides with his family). He explained that the apartment complex is located less than a minute from the intersection. Even though he always uses his flashing signal by habit and uses that road every day, he testified that he honestly could not remember specifically if he had used it that night as it happened one year prior to trial.

[27] He saw the officer's emergency lights in his mirror just as he was about to pull into the driveway where he lives. He pulled into his parking lot and when the officer approached him, he lowered his window completely. He testified that he was not trying to "suck up" but he was trying to be good by asking the officer how he was doing. He testified that the officer did not respond to his inquiry but rather advised him he had made an illegal lane change. He was surprised as he did not think he had. The officer asked for his documentation. He then explained that the officer put his head slightly inside the vehicle through the window frame and asked him what he had in the vehicle and that he had seen him move when he pulled him over. Mr. Hamed did not think he had moved. He asked the officer what he meant and this is when the officer ordered him to get out of the car. Mr. Hamed testified that he asked him why since even though he did not want to be perceived as "cocky", he wanted to show the officer that he knew his rights. He testified that the officer did not tell him about any smell of marijuana or about observing marijuana in the vehicle. The officer unlocked the door and opened it. Mr. Hamed testified he was shocked by this.

[28] He thought this situation had gotten serious quickly. He took the clue and got out of his vehicle. He described the officer as charging at him at that moment. He felt the officer was really mad at something. He testified that the officer took his arm and wrist and placed it behind his back, shoving him onto the cruiser and handcuffed him. He testified that the officer did not advise him of the reason for his arrest but rather he asked the officer why he was being arrested at that point. The officer told him to spread his legs and started moving his bum cheeks and clothing really hard, making his clothing somewhat sagging once he was done. Mr. Hamed thought the officer believed he was hiding something in that area. He explained that he had his iPhone on him and the officer seized it along with his wallet and placed his wallet on the top of the police car.

[29] He asked him again why he was under arrest but he testified the officer did not say anything. Mr. Hamed testified that if the officer would have communicated with him, he would have been calmer because he would have understood what was happening. He testified not really feeling stressful but rather scared. He thought the officer was not a "normal cop". He felt the officer was having a bad day or was upset at something and he was taking it out on him.

[30] After the search of his person was completed, he then described the officer placing his right hand on top of his head and pushing him face first inside the cruiser with his legs still outside. He kept repeating and asking in a loud voice, what had he done and why the officer was pushing him and that he was not getting away with this. He felt he was talking to a wall as the officer was not answering his questions. He had mixed feelings of fear; he was upset, and angry. Mr. Hamed testified that the officer gave him a slap behind the head. Yelling at the top of his lungs he asked the officer who thought he was to treat him like that and that he had just assaulted him. Mr. Hamed testified that this is when the officer said: "you think that's an assault? This is not an assault." And he punched him twice in the face and pushed his legs inside the cruiser. Neither one of them said anything anymore.

[31] He described that he felt dazed and out of it for a few seconds, not feeling what was going on around him; he could not feel his nose but thought it was bleeding. The officer did not ask him if he required medical attention.

[32] He testified that he had no reason to resist his arrest: everything the officer asked him to do, he did; he did not move away; his house was just there; he had answered all verbal commands.

[33] After punching him twice in the face, the officer went to search his vehicle. He testified that he did not care anymore about the drugs in the vehicle. He just wanted to be away from this officer as he was afraid he was going to get beaten up. The officer returned to the cruiser with the backpack and the drugs and he found the counterfeit money in his wallet. He testified that he takes full responsibility for those items.

[34] In relation to the counterfeit bills, he explained that approximately a week prior to this event, he had sold a dirt bike to a man from Arnprior who paid him in cash, including an old Canadian 100$ bill and an American 100$ bill. He thought the bills looked old but was happy to sell the dirt bike. While he was at a restaurant with his friends, they pointed out in no unclear terms that those two bills were counterfeit. He communicated by text with the purchaser to confront him about those bills and threatened him to call the police about it. They arranged to meet for him to receive the money he was owed in legitimate bills. The purchaser did not ask for his counterfeit bills to be returned and he had put them far away in his wallet, not too sure what to do with them but he testified he was not going to use them in any event. He had forgotten about them at the time of this incident.

[35] He testified that the officer was then telling him he was in trouble and asking him whether he would find more if he went to his house. He was asking to speak to his lawyer and he testified that this is when the officer told him that anything he said would be held against him and then he officially read from a card. He kept telling him that he wanted to talk to a lawyer. The officer did not tell him he was going to be released and not taken to the police station.

[36] He testified that he had identification on him since he had his health card in his wallet. He does not understand why his father had to be involved since he provided his name and address and the officer had his wallet with all its content. He did not want to disappoint his father and he cares what his father think of him but he was not going to resist his arrest over this. When the officer released him to his father and returned his iPhone, the first thing he could think of doing was to film or record the officers as he was frustrated about the officer making him feel like an animal, as if he had no rights and he did not want him to get away with what he had done to him.

The Analysis

[37] When assessing the credibility of the witnesses, I am guided by the principles set out in Supreme Court of Canada's decision in R. v. W.D. I am also instructing myself that on the Charter Application, the onus is on the applicant to demonstrate, on a balance of probabilities, that his rights were violated. In relation to an allegation of an unreasonable search and seizure, the onus is on the Crown to demonstrate, beyond a reasonable doubt that the warrantless search was reasonable.

[38] Here, we have two competing narrative to the encounter between the officer and the defendant. I will review their evidence in order of presentation at trial.

[39] The ring of truth to Cst Boldirev's testimony is not resounding loud enough for this court to hear it. The credibility of his evidence is deficient.

[40] The first obstacle that was noted during his testimony in-chief was while he was describing the moments just prior to the administration of the punches to the facial area of Mr. Hamed. As the Crown was guiding the testimony of his witness to unfold the circumstances of these events, Cst Boldirev, took it upon himself to stop the flow of his testimony to the point where he says Mr. Hamed attempted to get up, to talk about what he considers "the vital point" of "placing someone in a cruiser". Nowhere in his evidence does he describe what Mr. Hamed did precisely to conclude that he attempted to get up from the back seat of the cruiser but he thought it was important for him to explain to the court this "vital time" in the process of arresting an individual. It seems he was so anxious to provide this interlude in his evidence that no evidence of any verbal command was heard here and no description of what the defendant did for him to conclude Mr. Hamed indeed attempted to get up. Only a bald conclusion that he did attempt to get up. In other words, the court is left in a position to simply accept this officer's conclusion that Mr. Hamed attempted to get up. The officer then further jumps to the conclusion that as a result of the defendant's attempt to get up at this "vital time", without being directed by the police to get out of the cruiser, means that Mr. Hamed was trying to escape.

[41] The difficulty with this leap of faith that Mr. Hamed was attempting to get up, rendering the officer vulnerable given his position towards the detainee and that Mr. Hamed was trying to escape, is not only linked to this interlude about the "vital time" theory but it is also met during the cross-examination. The officer agrees that Mr. Hamed has not tried to kick him or even attempted to assault him in anyway at any point. But he expresses concerns that just because Mr. Hamed, this 19 years old man, cuffed behind his back, sitting on the back seat of his cruiser with his legs outside, might have military or MMA training and therefore, "you never know" he says, he might be able to kick him or run off and even get hit by a vehicle driving by.

[42] This explanation or reasoning is completely ridiculous in this context. There is absolutely nothing on this record or about that evening of August 31, 2015 or about the interaction between this officer and this defendant that would allow even considering this kind of possibility. On his own evidence, he described Mr. Hamed as compliant when ordered to exit his vehicle or during the arrest and the pat down search. Even his own description of placing him in the police vehicle did not require more than pulling, pushing and twisting without more and with absolutely no indication of any difficulty doing so. In fact, he testified that he was alone until the release process when Cst. Keenan stopped by just to ensure he did not need assistance and was safe but he did not call upon his colleagues to come for assistance or to ensure officer's safety.

[43] I am unable to share his conclusion that Mr. Hamed attempted to get up nor do I share his conclusion or even the possibility that Mr. Hamed could have escaped. There is no evidence on this record to allow this court to support such conclusions or inferences. Indeed, as stated by Mr. Hamed, he was not going anywhere, his residence was right there. He is cuffed to the back and sitting in the back of the cruiser with his legs outside.

[44] I also have difficulty with the officer's evidence in relation to this unsafe lane change or abrupt lane change. As his evidence evolved, it became very abrupt, more of a veer or a swerve. In re-examination, when the Crown delicately tried to soften this element, the explanation the officer provided for not having made note of this detail in his duty notebook was because he was driving at that time. I do not accept his evidence that it was a veer or a swerve and I do not accept his evidence that it did not find its way to his notebook because he was driving during this observation. He chose to indicate the details of this abrupt lane change. Indeed, he was driving at this time also…it is the same period of time. It certainly appears, from the unfolding of his testimony that he was attempting to justify his view of the appropriateness of the Highway Traffic Act offence pursuant to section 142.

[45] His evidence on this lane change was confused to the point that when confronted with the Google Map (Exhibit 6) of that intersection and area, he had to admit that he might have made a mistake in describing a change from lane 2 to 1 given the layout of that segment of the road and the merging lane from the intersection. But he had refused to accept the suggestion that the vehicle might have merged rather than abruptly change lane by answering "absolutely not".

[46] Also, I found that Cst. Boldirev was unable to agree or had difficulty conceding the obvious. For example, when counsel for Mr. Hamed discusses the timing of the right to counsel, the sequence of events is put to him and he agrees with this part: take physical control of the defendant, take him to the cruiser, pat down search, seizing of wallet and telephone and then the intention to search the vehicle. Counsel then asks if he advised him of his right to counsel and he answers that it did not take place until a couple of minutes later, in fact after the search of the vehicle. Counsel then summarizes the sequence of events as being the arrest, the pat down search, placing the defendant into the cruiser and the right to counsel come only after the search of the vehicle so about 10 minutes later and the officer answers: "I would not say that long." In fact, he is presented with the document of the details of the arrest, a document produced with the information he inputs into the communication system and the time registered as when he says he informed Mr. Hamed of his right to counsel is 2:05 am, 11 minutes after the arrest at 1:54 am.

[47] A similar situation took place when defense counsel read section 142 of the Highway Traffic Act (HTA) to the officer to inquire what he thought the traffic violation was that Mr. Hamed committed that night. The officer testified that he believed there might be other wording to the section. He conceded that it may not be an offence not to signal a lane change if no other vehicles or pedestrians are around but it was enough to bring his attention to it (It is in this segment of his testimony that he advised that even though he had no note of it, he had an independent recollection of a veer or swerve as discussed earlier.) In the end, he testified that he totally disagreed that this was not an improper lane change and he still believed there was an offence pursuant to section 142 of the HTA.

[48] Another example where he did not want to admit the obvious can be found during the cross-examination when the sequence of events in relation to the moment the officer would have described as the "vital time" when placing a detainee in the police vehicle. Counsel for Mr. Hamed suggests after confirming the details he provided in-chief that his client was tensing his body but at no point he had attempted to assault him. The officer responded: "Not at that point." Counsel then suggest that at no point was his client attempting to assault him. The officer's response again was: "Not at that point." Counsel then specified, asking if at any point his client attempted to assault him and only then does he answers: "No." This exchange could be characterized as an attempt to deceive this court, allowing the possibility that at some later point the defendant attempted to assault the officer. It could also be characterized as a demonstration of being argumentative with counsel. In any event, it does affect the credibility of the officer's testimony and the overall reliability of the officer's evidence.

[49] Mr. Hamed's evidence, on the other hand, came across as truthful, genuine, logical, and consistent. There is no apparent reason on this record to reject his evidence or qualify him as an unreliable or incredible witness.

[50] He started his testimony by speaking fast and unfolding the entire evening within just a few minutes and sometimes jumping from one detail to the other and not in chronological order, making it challenging to keep up with his evidence and understand where each segment belong. But after settling in, calming down and guidance or structuring with the assistance of counsel, he was able to deliver his evidence in clear and precise terms, describing not only what took place from his perspective but also how he felt throughout, at each step of the events.

[51] At times, he offered his perception of what he thought the officer was thinking. For example, when he testified that because of the way he was dressed and the late hour of the evening, he thought the officer treated him like a "hood rat" when he asked him what he had in the car. Or again, when he testified that he felt like the officer had a bad day or felt the officer was really mad at something and was taking it on him. Of course that was not part of the officer's evidence and of course this witness does not know what is inside the officer's mind at that time. This is not evidence for the truth of its content but it is simply this witness' perception of the situation as it unfolded. He was trying to understand what was happening and why it was happening as he described it did. It seems he was trying to make sense of the situation.

[52] He also testified about his own emotions throughout the unfolding of the events. For example he described initially feeling surprised by his interception, wondering why the officer was stopping him. He did not think he had made an illegal turn or change of lane. He then explained being shocked at the question of what he had in the car and being accused of having moved or shifted on his seat just prior to being stopped. He explained not wanting to be "cocky" but trying to show that he knew his rights when the officer ordered him to get out of the car, by questioning him as to the reason for it. He testified that he felt things got serious quickly and when the officer unlocked his door, he took the clue and got out of his car. He also testified that he felt really mad when he was being cuffed and searched without understanding what for. He was indeed getting mouthy and perhaps even excited with the officer at this point. I accept his evidence that if the officer would have talked to him, he would have been calmer because he would have understood what was happening to him.

[53] His evidence shows he has insight into the situation he found himself in. He was able to describe the evolution of his emotions as the situation evolved also.

[54] In the end, he was not shaken in cross-examination. He did not contradict himself and answered all questions in a forthwith and spontaneous fashion. He did not try to paint himself in a more favorable portrait, readily admitting, for example the purchase of the marijuana earlier and the actual possession of the counterfeit bills.

[55] Now, returning to the questions as identified at the outset:

1. Was the arrest lawful?

[56] Section 142 of the Highway Traffic Act (HTA) reads:

The driver or operator of a vehicle upon a highway before turning to the left or right at any intersection or into a private road or driveway or from one lane for traffic to another lane for traffic or to leave the roadway shall first see that the movement can be made in safety, and if the operation of any other vehicle may be affected by the movement shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement.

[57] The evidence on this record clearly indicates no other vehicles were on the road apart from the defendant's and the officer's. The officer's evidence was clear on this point, the lane change, where ever it was on that short segment of the road, did not interfere or affect his driving. In fact, I do not accept the officer's evidence that the vehicle veered, swerved or abruptly changed lane. As described earlier, his initial evidence was simply that the driver failed to signal his lane change but his evidence evolved by the end of the cross-examination to describe something almost dramatically different. In any event, the lane change did not affect or cause a risk that may have affected the driving of the officer, the only other vehicle on the road at that time (see York (Regional Municipality) v. Switzer 2017 ONCJ 86, an appeal heard by my colleague J.F. Kenkel J.)

[58] It seems the officer had a misunderstanding of this section or of the application of this section of the HTA. It is difficult to imagine why he would have pulled this vehicle over under these circumstances of simply failing to signal his right turn, pursuant to this section. He did not testify that he pulled him over for the purpose of verifying the validity of his documentation as a driver or his sobriety but rather for the very specific reason he indicated as being an unsafe lane change pursuant to s. 142 of the HTA. His grounds to do so, as per this section, appear to be lacking. He believed he had grounds to detain the motorist but his belief was grounded on, at best, a misunderstanding of the section.

[59] I accept the defendant's evidence that he had been with friends earlier that day, planning to attend a cottage. I accept his evidence that even though he consumed marijuana earlier that evening, it was not from that bag he had just purchased. That bag was not opened that evening but rather placed in his backpack and stowed underneath the passenger's seat. I also accept his evidence that he had cleaned his father's vehicle earlier that day and did not want to leave any traces of drugs inside the vehicle not to disappoint his father with his consumption at the time but also not to anger him and see him refuse access to his vehicle.

[60] From the Google Maps filed as exhibits and his description of where he was coming from and where his residence is located, there is no reason for him to have used any other lane than the merging lane and the right lane it merges into, to the entrance of the apartment building. He denied being intoxicated or impaired and there is no evidence to suggest it either. I accept his evidence that he did not over take the second lane or that there was anything foul with is driving. I found his evidence to be honest, reasonable, and logical that he could not remember specifically, almost one year later, whether he had used his flasher to indicate a lane change as he uses that route regularly and it becomes a habit.

[61] However, if this was the only issue raised in this matter, I doubt much would have turned on it.

[62] The issue of the grounds for intercepting the vehicle is compounded by the officer's evidence that he observed a few flakes of what he believed was marijuana after observing a pungent smell of fresh vegetative marijuana inside the vehicle. His evidence on this very point raises two areas of concern.

[63] Firstly, the mere fact that he was able to observe and seize three or four flakes of marijuana between the door and the left leg of the driver leaves me doubtful. He testified that he had to lean into the car, merely centimeters away from the driver. But what would cause him to look at that specific location, exposing himself to this apparent risk of danger of harm? His evidence was that there was nothing else out of place inside that vehicle and therefore those flakes stood out. What about an opened backpack in plain view as per his evidence, containing a Ziplock bag with approximately 200 gr of marijuana? Mr. Hamed's position is that there were no such flakes on the floor of his father's vehicle because not only did he vacuum it that very same day but he did not consume any marijuana inside his father's vehicle and he did not open the Ziploc bag he placed inside his closed backpack, tucked underneath the passenger's seat either. I do not accept the officer's evidence that he observed a few flakes on the floor of the vehicle between the door and the left leg of the defendant.

[64] This leaves us with the smell. He would have noticed this pungent smell of fresh vegetative odor of marijuana. Following his description of the sequence of events, he would have been conversing with the driver as he would have explained the reason for the stop and requested the documentation, noticing that the permit was not signed in ink when he then observed that pungent smell. This, in itself, seems contradictory. A pungent smell by nature means a strong or powerful smell. From his own evidence, it is hard to imagine that he did not detect it immediately. He did not testify that he smelt the burnt smell of marijuana even though the defendant admits smoking it earlier that same evening. Be that as it may, I need to be able to rely on his testimony to accept his evidence that he indeed smelt this pungent odor.

[65] It is in this context that J. Rosenberg's comments, at paragraphs 13 to 16 in R. v. Polashek, come into play. Here, it is not only an unreviewable discretion in the hands of the officer but it does seem to be or lend itself to the argument of tailored evidence to mask what the defendant referred to as a "shake down". The olfactory observation described by the officer leave much doubt when considering the circumstances he says he made such observation. The court has no other way to come to its own conclusion than by relying on the officer's testimony that he made this olfactory observation of the odor described as pungent. I would have to accept that this pungent odor was not observed immediately upon engaging with the driver through the completely opened window but rather only moments later and came from the marijuana, albeit 208.5 grams, found inside the closed Ziploc, inside the backpack, located underneath the passenger's seat of the defendant's father's vehicle, in which he uses fresheners specifically to mask the odor of his use of marijuana.

[66] The defendant specifically testified that the officer did not tell him about this olfactory observation. Indeed he specifically testified that he kept asking the officer why he was ordering him out of the vehicle and why he was arresting him and what for. Indeed, had the officer shared his observation or stated his observation to the defendant as he testified he did, it seems the evidence of the defendant on the repeated inquiry for the reason for his ordering out of his vehicle or for his arrest, his testimony of feeling like a child in a store asking a parent but not obtaining a response would be completely out of thin air and coming from nowhere. The defendant's evidence did not yield this impression or conclusion. To the contrary, it had the ring of truth, especially when coupled with his forthwith description of purchasing the substance for himself and his friends' consumption while at the cottage the following week.

[67] In the context of the credibility concerns raised earlier in officer Boldirev's evidence, I simply cannot share his conclusion or rely on his evidence of observation on this point.

[68] In the end, I conclude the detention of Mr. Hamed was arbitrary and his arrest was groundless and unlawful and therefore in breach of section 9 of the Charter.

2. Was the warrantless search reasonable?

[69] There was no basis for the arrest and therefore the search ought not to have been conducted without a warrant. The search of the vehicle and of the defendant's person and wallet was conducted in breach of the defendant's section 8 Charter protection.

3. Were the reasons for detention provided and was the right to counsel implemented?

[70] Both witnesses seem to agree Mr. Hamed was made aware the reason for the vehicle stop was as a result of his failure to signal his lane change. Mr. Hamed testified that when the officer approached the driver's side door, Mr. Hamed initiated the conversation by asking the officer how it was going and the officer responded by advising him he had made an illegal lane change. Cst Boldirev also testified that upon approaching the vehicle on the driver's side he began speaking with the driver, advising him the reason for the stop was because of the lane change.

[71] It is after this point that their evidence diverges. Cst Boldirev testified that he alerted Mr. Hamed of his observations of the smell and the flakes of marijuana prior to requesting him to exit his vehicle. Mr. Hamed on the other hand testified that no such conversation took place and rather the officer reached in to unlock and open the door and ordered him to exit without telling him the reason for it.

[72] I accept Mr. Hamed's evidence that he was neither informed of the reason for his detention nor for his arrest at this time. At no time was he made aware of the investigative change from the HTA infraction to the criminal investigation. This is why indeed Mr. Hamed was resisting the order to exit his vehicle as he did not know the reason for it and was attempting to demonstrate to the officer that he "knew his rights" by asking him for the reason. I accept his evidence that the officer unlocked the door and opened it. In fact, it appears the officer did so because Mr. Hamed was not responding as expected by the officer to the order to exit the vehicle. As stated by Mr. Hamed, he was not exiting the vehicle because the officer did not tell him why; did not advise him of his observations of the odor and the flakes of marijuana; did not tell him he was under investigation for possession of marijuana; and did not inform him he was under arrest for it either.

[73] Section 10(a) of Mr. Hamed's Charter protected right was breached.

[74] The crown recognizes that the right to counsel, pursuant to section 10(b) of the Charter was not fully complied with. In fact, I would qualify it as merely superficially complied with the informational component of it.

[75] On Cst Boldirev's own evidence, he only informed Mr. Hamed of his right to retain and instruct counsel 11 minutes after his arrest. He was arrested upon exiting the vehicle, then cuffed and searched. One would expect the right to counsel to follow immediately at this point to conform with the intention and purpose of section 10(b), as stated by the Supreme Court of Canada in R. v. Suberu, 2009 SCC 33. Rather the officer saw it best to delay the defendant's right to counsel until he placed him in his cruiser and further search his vehicle, gathering further evidence in the process.

[76] Mr. Hamed was left alone in the police cruiser during this time. He had access to a phone as in fact two were seized from him. I accept Mr. Hamed's evidence that upon the officer's return to the cruiser, pursuing his search of his wallet and questioning him as to whether he would find more contraband at his home, he kept repeating the word: "lawyer".

[77] Again, on Cst Boldirev's own evidence, even though Mr. Hamed responded affirmatively to wanting to speak to a lawyer, he indicated that in the hundreds of arrests he made, he never implemented the right to counsel at the roadside and in the hundreds of arrests he saw being done by colleagues, he has never seen it done or even heard of situations where it had been done or ought to be done at the roadside. He testified that during his training as a police officer, the topic of facilitating access to counsel at the roadside was never discussed and he does not receive court decisions impacting on police work or duties.

[78] I conclude that Mr. Hamed's section 10(b) rights were also breached.

4. Did the officer use excessive force?

[79] There is no dispute with the fact that Cst Boldirev administered two full force punches to Mr. Hamed's head or facial area, while his hands were cuffed to the back and he was sitting in the back of the police car with his legs and feet outside of the vehicle.

[80] The question is whether the officer was justified in doing so, hence the question as to whether that force was excessive.

[81] As stated by the Supreme Court of Canada in R. v. Nasagoluak, [2010] 1 S.R.C. 206, at paragraph 32:

While, at times, the police may have to resort to force in order to complete an arrest or prevent an offender from escaping police custody, the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness. Courts must guard against the illegitimate use of power by the police against members of our society, given its grave consequences.

[82] Lebel, J. also stated at paragraph 35:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary, the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

[83] I accept Mr. Hamed's version of events leading to the punches he received to the face. Indeed, he was questioning the officer as to the reason for his arrest, continuously as the officer was not informing him promptly of the reason for his arrest. He was searched while cuffed and still Mr. Hamed was questioning the officer about the reason for his arrest but to no avail. Mr. Hamed admitted raising his voice to the officer, wanting to know what he had done wrong. He testified that he told the officer that he was not getting away with this. He also stated that the officer gave him a slap behind the head and he then yelled at the top of his lungs asking him who he thought he was and that he had just assaulted him. He also testified that the officer, after searching him, pushed him inside the cruiser.

[84] Cst Boldirev testified that Mr. Hamed was compliant up until he attempted to place him inside the cruiser, after being cuffed and searched. From the officer's description, the extent of the Mr. Hamed's attempt at resisting was tensing his body, therefore becoming rigid and planting his feet. It is not even clear, let alone convincing, from the officer's evidence that he even used verbal commands at this point. In fact, this is what Mr. Hamed complained of: the officer was not talking to him. What comes of the officer's evidence is that he had use what he referred to as "soft techniques" such as pulling, pushing and twisting Mr. Hamed to place him inside the cruiser. There is absolutely no evidence that he used verbal commands after this point to have Mr. Hamed place his legs and feet inside the cruiser.

[85] I accept Mr. Hamed's evidence that the officer gave him a slap behind the head. Not only was the slap behind the head unnecessary but the circumstances in which it took place, while the defendant was cuffed and questioning the officer as to the reason for his arrest, lead me to conclude that it was done to either spike the situation or in a spirit of "teaching this young man a lesson". Either way, it was unprofessional and unnecessary.

[86] The two punches to Mr. Hamed's facial area were completely contrary to the principles of proportionality, necessity and reasonableness. Mr. Hamed's hands were cuffed to the back. He was sitting on the back seat of the police cruiser with his legs and feet outside the car. He was completely vulnerable. Cst Boldirev was not in a vulnerable position. There was no emergency to the situation. He was not reacting quickly to an emergency either. The risk of Mr. Hamed escaping, while sitting in the back seat of the cruiser with his legs out but his hands cuffed to the back is about nil. The officer was not in any particular danger of harm from this situation. Mr. Hamed had not demonstrated any sign of aggressively or violence towards the officer. The officer did not have to stand close to the defendant at this moment. He could have taken a step backward, issue a verbal command to place his legs and feet inside. Cst Boldirev felt it necessary to explain to the court the danger at this vital time. Part of that danger he says was as a result of the limited space, the detainee sometimes requires assistance to place his or her legs in. Because the officer would have to square off to the detainee and be close to him or her, the officer would be in a vulnerable position for getting spat on or hit or kicked. This was not the case here at all. There is no evidence that Cst Boldirev was close to Mr. Hamed to assist him in placing his legs and feet inside the cruiser at this moment. To the contrary, his evidence was that Mr. Hamed attempted to get up and therefore he concluded he wanted to escape.

[87] Not even one punch was necessary, let alone reasonable in this case. But Cst Boldirev did not administer one but rather two punches, full force, 10 out of 10 on his scale of force to the facial area of Mr. Hamed. This was completely disproportional to the situation at hand.

[88] As indicated by our Supreme Court, "police actions should not be judged against a standard of perfection". But Cst Boldirev's actions in this case was well below the standard expected of a police officer in similar circumstances. Even accepting and recognizing the inherent risk an officer is often exposed to during the performance of their duties, even if I was to accept the inherent risk involved in placing an arrestee inside a police cruiser, there was nothing here to justify those two punches to Mr. Hamed's face.

[89] The force Cst Boldirev used in these circumstances was excessive, it was unnecessary, unreasonable and disproportionate.

5. Should the evidence be excluded pursuant to s. 24(1) or (2)?

[90] The Supreme Court of Canada stated the criteria relevant to determining when the admission of evidence obtained by Charter breaches would bring the administration of justice into disrepute: R. v. Grant, 2009 SCC 32. In assessing and balancing the effect of admitting the evidence on society's confidence in the justice system, the court must consider:

1. The seriousness of the Charter-infringing state conduct;
2. The impact of the breach on the Charter-protected interests of the accused; and
3. Society's interest in the adjudication of the case on its merits.

[91] Mr. Hamed's sections 7, 8, 9, 10(a) and (b) rights were infringed. He was stopped without justification; detained and arrested without grounds; he was not advised of the reason for his arrest and was not afforded an opportunity to consult with a lawyer despite his expression to do so; excessive force was used against him in the process, ultimately he was assaulted; and evidence was obtained through a warrantless and groundless search.

[92] That the officer maybe erroneously thought it was an offence against section 142 of the HTA not to signal a lane change would not be considered serious. Not advising a driver that the investigation has shifted from a traffic infraction to a criminal matter might not be considered so serious either in a flowing situation. But a police officer, with 11 years of experience, not knowing his duties in relation to the rights to counsel to the extent Cst Boldirev was lacking, is very serious.

[93] Cst Boldirev's behavior in this aspect alone of Mr. Hamed's right to counsel was cavalier to say the least, depicting a complete ignorance of the purpose of section 10(b) rights and more importantly of his duties in this regard. Cst Boldirev checked off the right to counsel on his list of things to do just like one would do on a grocery list. The officer even testified that once Mr. Hamed advised he wanted to speak to a lawyer after he provided the number for Legal Aid, he did not ask him to make a phone call and did not ask for his cell phone to be returned. The officer had absolutely no idea of his obligation or duty to implement Mr. Hamed's right to counsel. This is unacceptable.

[94] He had no idea of the necessity to advise Mr. Hamed immediately upon detention or at least upon his arrest of his right to counsel. He waited 11 minutes after arrest to do so. During those 11 minutes, he assaulted Mr. Hamed by punching him full force twice in the face and searched his vehicle to find evidence against him. To add insult to injury, he testified that during his 11 years as a police officer, not only did he never implemented the right to counsel at the roadside but also he never seen it done or heard of it. This is obviously an indication of a systemic problem, especially when considering that McGuffie (2016 ONCA 365) and Pino (2016 ONCA 389) both also involved officers from the Ottawa Police Services in relation to issues with section 10(b) rights.

[95] The administration of the punches to the face is, of its own, at the very serious end of the continuum of police misconduct described at paragraph 74 of R. v. Grant and compelling the exclusion of the evidence. As stated at paragraph 75:

Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence.

[96] That Mr. Hamed was not seriously injured seems to be pure luck. But that the officer did not even inquire if he required medical attention after testifying that he administered these two punches to the head or facial area with full force, 10 out of 10 on the scale of force, is mind boggling.

[97] This is certainly such a case requiring the exclusion of the evidence.

[98] The impact of the breaches on the Charter-protected interests of Mr. Hamed is also very serious.

[99] A warrantless and groundless search is always unreasonable, even in a vehicle where an individual enjoys a lesser expectation of privacy than a home for example. A slap behind a head while cuffed always demeans one's dignity. Not suspending an investigation and indeed ignoring one's right to counsel and uncovering contraband in this context will always "signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute." (Grant, paragraph 76).

[100] Again, the administration of the punches to the face while cuffed to the back and sitting in the police cruiser, of its own, will have a very serious negative impact on section 7 Charter-protected interest of a person to security.

[101] The pull towards the exclusion of the evidence on this second criterion is also very strong.

[102] As indicated by the Court of Appeal of Ontario in McGuffie, at paragraph 63: "If the first and second inquires make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favor of admissibility." It is certainly the case here.

[103] Finally, applying the guideline of Court of Appeal in Pino, at paragraph 72, the entire evidence ought to be excluded, that is the contraband found in the vehicle and in Mr. Hamed's wallet – the marijuana and the counterfeit bills.

[104] Having excluded the evidence pursuant to section 24(2) and having accepted the evidence of Mr. Hamed that he was not resisting him arrest (but also having concluded that the arrest was groundless), there is no need to address section 24(1).

[105] Indeed, having excluded the evidence obtained by Cst Boldirev in breached of Mr. Hamed's Charter-protected rights, I find Mr. Hamed not guilty of all counts.

Released: March 21st, 2017

Signed: Justice Julie I. Bourgeois