Court Information

Ontario Court of Justice

Date: December 5, 2019

Court File Nos.: 18-14038-00 and 18-14039-00

Location: Brampton

Parties

Between:

Her Majesty the Queen

— AND —

Amritpal Singh

Judicial Officer and Counsel

Before: Justice Sandra Caponecchia

Trial Heard: October 29, 2019

Judgment Released: December 5, 2019

Counsel:

• M. Dykstra, counsel for the Crown
• A. Fried, counsel for the accused Amritpal Singh

Decision

CAPONECCHIA J.:

Introduction

[1] Mr. Singh is charged with theft from Walmart and possession of 0.2 grams of heroin and 0.15 grams of methamphetamines.

[2] A loss prevention associate employed by Walmart, Mr. Wolczyk, testified that at 10:10 p.m. on Nov 16, 2018 he observed Mr. Singh select a pair of boots and put them in a reusable plastic shopping bag. The same loss prevention officer observed Mr. Singh an hour later select a can of Red Bull near the check out and exit the store without paying for the boots and the drink. Mr. Singh was approached a few feet outside Walmart by Mr. Wolczyk and was asked to return inside. Mr. Wolczyk escorted Mr. Singh to an office and advised Mr. Singh he was under arrest for theft at 11:10 p.m. Numerous unpaid items in Mr. Singh's possession were seized by the loss prevention officer. Mr. Wolczyk also located a small vile believed to contain illicit drugs. Police were contacted shortly after 11:10 p.m. by Mr. Wolczyk. Mr. Wolczyk also took it upon himself to inform Mr. Singh of his right to counsel.

[3] Officer Gane attended approximately five hours later and arrested Mr. Singh. The police officer testified that he was dispatched to Walmart at 4:00 a.m. He explained that it was a busy Friday night and this call was given a low priority.

[4] The defence does not dispute the vile found in Mr. Singh's possession contained methamphetamines and heroine. The defence position is that Mr. Singh's rights were violated and the drugs should be excluded pursuant s. 24(2) of the Charter.

[5] A blended voir dire and trial took place on October 29, 2019. The Crown called the loss prevention associate, Mr. Wolczyk, and PC Gane. The defendant testified in support of his Charter application. The defence called no evidence on the trial proper.

Position of the Parties

[6] The defence argues:

(1) The defence urges me to find that the loss prevention associate held himself out as a police officer and was acting as an agent of the state when he arrested Mr. Singh. In so doing, the security officer violated Mr. Singh's s. 8, 9 and 10(b) rights.

(2) The defendants 10(b) rights were violated by PC Gane in two ways.

First, the police officer did not inform the defendant of his right to counsel immediately upon arrest as required by s.10(b).

Second, Mr. Singh presented with an obvious language barrier and PC Gane should have arranged to have his rights read to him in Punjabi and an interpreter should have been arranged to facilitate contact with duty counsel.

[7] The Crown submits:

Firstly, the Charter does not apply to the loss prevention officer and the evidence does not establish that Mr. Wolczyk was acting at the behest of the police.

Second, the defence has not established that PC Gane failed to inform or implement Mr. Singh's 10(b) rights. If the officer's conduct fell short, the Crown argues the drugs should not be excluded pursuant to s. 24(2) of the Charter.

Defence Argument #1

[8] Section 494 authorizes a civilian to arrest an individual without a warrant in the circumstances of this case. The obligation of anyone who does so, is set out in s. 494(3). They are required to forthwith deliver the person to a peace officer.

[9] When Mr. Wolczyk saw Mr. Singh leave Walmart in possession of numerous unpaid items, the witness had reasonable grounds to believe Mr. Singh had committed a theft.

[10] I am satisfied that Mr. Wolczyk complied with his duty to forthwith deliver Mr. Singh to a peace officer when he contacted the police immediately following Mr. Singh's arrest at 11:10 p.m. In short, Mr. Singh's arrest was lawful.

[11] By virtue of s. 32(1) of the Charter, the application of the Charter is confined to the actions of government actors. The Charter does however apply to the actions of non-government actors where they are acting as agents of government actors.

[12] The defence urges me to adopt the 1986 Alberta Court of Appeal decision in R. v. Lerke, 1986 ABCA 15, 24 C.C.C. (3d) 129 (Alta. C.A.). The Alberta Court of Appeal was of the view that a private citizen who conducts an arrest of another citizen is a "government actor" for the purposes of the Charter. The court went on further to hold that the Charter applied to private citizen's arrests.

[13] In Lerke the facts were that the accused entered a tavern and was asked for proof of age. He could not provide that proof and was requested to leave the premises. The accused returned to the premises and was asked by the manager to step into his office. The manager told the accused that he was under arrest for re-entering the premises. Another employee searched the accused's jacket pocket and found marijuana. The police were called. The accused was charged with an offence under the Liquor Control Act and for possession of marijuana. The Alberta Court of Appeal held that a private citizen making an arrest could conduct a search of an accused. However, the search must meet with the s. 8 Charter requirement of reasonableness. The court held that the search which produced the discovery of the marijuana was unreasonable, and therefore in violation of s. 8 of the Charter. The tavern employees did not perceive any danger to themselves which would cause a search for weapons. Nor was the search required to preserve evidence since the accused was being arrested for re-entering the tavern. The court did not consider whether the accused was entitled to other Charter protections such as the right to retain and instruct counsel without delay and to be informed of that right.

[14] Since the Lerke decision the Supreme Court of Canada decided R. v. Buhay, 2003 SCC 30, 174 C.C.C.(3d) 97. In Buhay a security guard at a bus depot smelled the odour of marijuana emanating from a locker and forced it open in order to search it. As he was not directed or encouraged by any police officers to open the locker, he was not acting as an agent of the state. His role of protecting private property could not be assimilated to the implementation of a government purpose or programme. The security guard was found to be acting as a private citizen and he was not obliged to respect the defendant's right to be free from unreasonable search and seizure, as set out in s. 8 of the Charter. The court did not, however, deal directly with the obligations of a citizen who carries out an arrest.

[15] Subsequently in a short endorsement by the Ontario Court of Appeal in R. v. N.S., 2004 OJ No. 290 (C.A.) the court held:

Assuming the conduct of security amounted to detention, an arrest or search, we are satisfied based on R. v. Buhay, 2003 SCC 30, 174 C.C.C. (3d) 97, para. 25-31, that the security guards could not be considered police agents or otherwise subject to the limitation of the Charter.

[16] I am not bound by the decision in Lerke. I am bound by the decision in Buhay and N.S. The operative paragraphs of Buhay state:

25 Section 32 of the Charter provides that its provisions apply to the Parliament and government of Canada, and to the legislature and government of the provinces. Accordingly, the initial search of the appellant's locker by the security guards can only come under s. 8 scrutiny if the guards can be categorized either as "part of government" or as performing a specific government function (Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624), or if they can be considered state agents (R. v. Broyles, [1991] 3 S.C.R. 595; M.(M.R.), supra)

30 Volunteer participation in the detection of crime by private actors, or general encouragements by the police authorities to citizens to participate in the detection of crime, will not usually be sufficient direction by the police to trigger the application of the Charter. Rather, the intervention of the police must be specific to the case being investigated.

31 While there has been a growing use of private security in Canada and while private security officers arrest, detain and search individuals on a regular basis, "[t]he exclusion of private activity from the Charter was not a result of happenstance. It was a deliberate choice which must be respected" (McKinney v. University of Guelph, [1990] 3 S.C.R. 229, at p. 262). It may be that if the state were to abandon in whole or in part an essential public function to the private sector, even without an express delegation, the private activity could be assimilated to that of a state actor for Charter purposes. This is not the case here. As for whether private security guards are "agents of the state", the test in Broyles, supra, invites a case-by-case analysis which focusses on the actions which have given rise to the alleged Charter breach by the security guards and the relationship between them and the state. [emphasis added]

[17] In other words, in Buhay the Supreme Court of Canada considered the arrest, detention and search functions of private security officers and stated that, unless there is a delegation or at least partial abandonment of the police power to the private sector, the conduct of a private security officer was not subject to the Charter. Based on the decision in Buhay I am satisfied that a private security guard's arrest function may be subject to Charter scrutiny only if, after a case specific analysis, it is determined that he acted explicitly or implicitly as a state agent.

[18] I do not find that Mr. Wolczyk held himself out as a police officer. I am satisfied that Mr. Wolczyk was acting in his private capacity as a Walmart employee when he arrested Mr. Singh and that there is no evidence from which I can reasonably infer that Mr. Wolczyk was acting as an agent of the state. There was no evidence as to what, if anything, the Peel Police dispatcher asked or instructed Mr. Wolczyk to do when he called them at 11:10 pm. Nor was there any evidence as to what, if anything, was communicated to the Walmart employee by the dispatcher when the police could not respond for over five hours. There was evidence from PC Gane which suggested he was not even sure if Mr. Singh was still at Walmart by the time he was dispatched. PC Gane testified that before making his way to Walmart at 4:00 a.m. he tried, unsuccessfully, to reach the complainant to find out if Mr. Singh was still there. I have no evidence from which to infer that there was any expectation or request by the police that the Walmart loss prevention associate would detain Mr. Singh indefinitely on behalf of the police.

[19] I have considered PC Gane's testimony that he arrived at Walmart to continue Mr. Singh's arrest knowing he had already been arrested by security guards. However, that evidence in and of itself does not satisfy me that the loss prevention officer was acting as an agent for the police. On the record before me I am simply unable to find that the police directly or indirectly expected Walmart security to act as their agent until an officer was able to attend. While the loss prevention officer took it upon himself to read Mr. Singh his rights, he was not asked to perform this function by the state. Therefore, any failing on Mr. Wolczyk's part in administering Mr. Singh's 10(b) rights is academic because as a private citizen he had no duty to inform or implement Mr. Singh's Charter rights.

[20] In conclusion, I am not satisfied Mr. Wolczyk was acting as an agent of the state and therefore his actions do not afford Mr. Singh with a Charter remedy.

Defence Argument #2

[21] Turning to the alleged breaches of s. 10(b) by PC Gane. Mr. Wolczyk testified that PC Gane arrived at 4:12 a.m. PC Gane did not have a note as to when he arrived, only that he was dispatched at 4:00 a.m. He estimated he arrived at Walmart at 4:26 a.m. based on a call summary that he did not generate himself. PC Gane explained that he arrested Mr. Singh within in a minute of arriving. He also testified that he arrested Mr. Singh at 4:30 a.m. After placing Mr. Singh under arrest PC Gane did not proceed to read Mr. Singh his s. 10(b) rights immediately. Instead, PC Gane proceeded to survey the property that was laid out on the loss prevention associate's desk. After observing the defendant's property to include burnt tin foil, a lighter and a vile with baggies wrapped in Kleenex, Mr. Singh was told he was also under arrest for possession of a controlled substance. PC Gane escorted Mr. Singh to his cruiser and began reading him his rights to counsel starting at 4:45 a.m. The officer also testified he left Walmart within the same minute, at 4:45 a.m.

[22] PC Gane understood Mr. Singh wanted to speak with duty counsel. After they arrived at the police station Mr. Singh was put in touch with a duty counsel by the name of Mr. Murphy at 5:04 a.m. According to PC Gane, at 5:08 a.m. the defendant told the officer he was satisfied with the advice he received. Following which Mr. Singh was placed in a cell. Mr. Singh's release documents attached to the information indicate Mr. Singh was released from the station after 10:00 a.m. PC Gane's shift ended at 7:00 a.m.

[23] In cross-examination PC Gane was asked whether he noticed Mr. Singh had difficulty speaking English. According to PC Gane, Mr. Singh spoke English "well enough." The officer did not take any steps to obtain the assistance of a Punjabi speaking officer or Duty Counsel. Nor did the officer endeavour to arrange for the services of an interpreter to facilitate Mr. Singh's conversation with a Duty Counsel by the name of Mr. Murphy.

[24] By contrast, Mr. Singh testified that he was not able to completely understand everything PC Gane told him. Mr. Singh testified that using his broken English he tried to tell PC Gane that he did not understand, and the officer told him all that was required was to simply give "yes or no" answers. Mr. Singh proceeded to follow the officer's lead and give him 'yes' or 'no' answers. Contrary to PC Gane's evidence, Mr. Singh denies being asked if he was satisfied with the advice of Duty Counsel.

[25] In cross-examination the defendant testified that he did not understand a word the police officer said to him. Mr. Singh testified with the assistance of an interpreter and I observed him to respond to one question posed in English before it was translated. Mr. Singh seemingly contradicted himself when he acknowledged that he understood a little bit of English. The defendant also agreed that he did not specifically request a Punjabi speaking duty counsel. The evidence also established that English is not Mr. Singh's first language. He came to Canada as a refugee in 2014. He did not go to school in Canada. He has worked in the trucking industry with people who mostly speak the same language as him. In re-examination Mr. Singh explained that he can communicate in simple terms with people in English.

[26] There is some confirmation for Mr. Singh's position that he did not have a good command of the English language. The loss prevention associate testified that he noticed a language barrier when communicating with Mr. Singh. Mr. Wolczyk described Mr. Singh's English as "not the greatest." In cross-examination Mr. Wolczyk described Mr. Singh's English as "limited." For his part, Mr. Wolczyk enlisted the assistant of Punjabi speaking security officer to deal with Mr. Singh. Mr. Wolczyk could not be precise as to what he asked his colleague to translate and if this included all or some of Mr. Singh's right to counsel. According to Mr. Singh, the Punjabi speaking loss prevention officer only asked him for his name and address in Punjabi.

[27] For the reasons that follow, I am satisfied on a balance of probabilities, that Mr. Singh's s. 10(b) Charter rights were breached in more than one way.

i. Without Delay

[28] For one, there was unreasonable delay in advising Mr. Singh of his 10(b) rights by PC Gane.

[29] Section 10(b) of the Charter guarantees to anyone arrested or detained the right "to retain and instruct counsel without delay and to be informed of that right." Section 10(b) imposes two duties on the police -- an informational duty and an implementational duty. The informational duty must be discharged "immediately" upon detention to minimize the risk of self-incrimination.

[30] The s.10(b) jurisprudence also recognizes that there may be specific circumstances that justify some delay in providing a detainee his rights to counsel. Those circumstances relate to police safety, public safety, or the preservation of evidence. Concerns of a general or non-specific nature cannot justify delaying access to counsel. The police may delay access only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel. Even when those circumstances exist, the police must also take reasonable steps to minimize the delay in granting access to counsel.

[31] In the Ontario Court of Appeal decision R. v. Culotta, 2018 ONCA 665, [2018] OJ No 3946, a s. 10(b) breach was found where the appellant was arrested at 3:17 a.m. but only informed of her s. 10(b) rights 38 minutes later at 3:46 a.m., because the officer did not want to interfere with the defendant's medical care. The Ontario Court of Appeal held that the officer may have had innocent -- even benevolent -- reasons for his delay, but there can be no doubt that this suspension violated the appellant's rights to retain and instruct counsel "without delay" or "immediately" upon detention.

[32] In Mr. Singh's case, if I accept PC Gane's evidence that he arrived at Walmart at 4:26 a.m. and Mr. Singh was under arrest at either 4:27 a.m. or 4:30 a.m., then there was 15 to 17 minutes of delay in advising Mr. Singh of his rights at 4:45 a.m.

[33] If I accept Mr. Wolczyk's evidence that PC Gane arrived at 4:12 a.m., then there was a 33 minute delay in advising Mr. Singh of s. 10(b) rights at 4:45 a.m. I accept Mr. Wolczyk's evidence on this point, because he took a note as to when PC Gane arrived. PC Gane did not make a note as to when he arrived. PC Gane only noted that he was dispatched at 4:00 a.m. and he told Mr. Singh he was under arrest at 4:27 a.m. PC Gane's estimate that he arrived at Walmart at 4:26 a.m. was based on a document that he did not create.

[34] When asked to explain the delay between placing Mr. Singh under arrest at either 4:27 a.m. or 4:30 a.m. and advising Mr. Singh of his rights at 4:45 a.m., PC Gane gave two explanations. One was that he used the time to survey the stolen property. PC Gane could not be precise as to how long it took him to do so, other than to estimate it took 15 minutes. The stolen property Mr. Wolczyk seized consisted of a single pair of boots, two hoodies, a DVD receiver, an electric shaver, 10 wrist watches and a can of Red Bull. PC Gane testified that he was interested in getting the stolen goods released back to Walmart and freeing up the loss prevention officer. PC Gane's second explanation for his decision to delaying informing Mr. Singh's of his right to counsel until 4:45 a.m. was that he wanted to do it in the controlled environment of his police car.

[35] The assessment of whether a delay of the right to counsel is justified involves a fact specific contextual determination. I find PC Gane's two explanations for delaying Mr. Singh's right to counsel to be generic and not specific to the defendant's circumstances. Mr. Singh had been detained over night in an office for over five hours waiting for the police to respond. Whether it was in the office or the cruiser, providing Mr. Singh with his rights immediately should have taken priority over freeing up the loss prevention officer and the property. There were no specific police or public safety issues. Nor was their any risk of losing evidence.

ii. Information and Implementation

[36] In addition to failing to inform Mr. Singh of his rights in a timely fashion, I am also satisfied that PC Gane fell short in fulfilling his informational and implementational duties on account of the language barrier that I accept Mr. Singh displayed.

[37] Satisfaction of the informational duty may be complicated in certain cases where the detainee positively indicates a failure to understand his or her rights to counsel. In such cases, the police cannot rely on a mechanical recitation of those rights; they must make a reasonable effort to explain those rights to the detainee. Absent special circumstances indicating that a detainee may not understand the s. 10(b) caution, such as language difficulties, police are not required to assure themselves that a detainee fully understands the s. 10(b) caution.

[38] The defendant testified, and I accept, that he tried to tell PC Gane in broken English that he did not speak English and the officer responded by telling him he only needed to give "yes or no" answers. Mr. Singh's evidence on this issue had the ring of truth and is confirmed by the loss prevention officer's evidence who described Mr. Singh's command of English as "not the greatest" and "limited." I am therefore satisfied that there were circumstances apparent to PC Gane that required him to take additional steps to ensure Mr. Singh understood his rights. I find that PC Gane's opinion that Mr. Singh spoke English "well enough" was not a sound or reasonable conclusion based on the totality of the evidence. PC Gane was required to take further steps to inform and implement Mr. Singh's s. 10(b) rights, including enlisting the assistance of a Punjabi speaking officer and arranging for Mr. Singh to receive advice from either a Punjabi speaking Duty Counsel or and English-speaking lawyer with the assistance of an interpreter service.

Section 24(2)

[39] I am satisfied on a balance of probabilities that PC Gane unreasonably delayed informing Mr. Singh of his right to counsel and special circumstances required that PC Gane do more to adequately inform and implement the defendant's right to counsel. The Crown did not seek to tender any utterances made by Mr. Singh to the loss prevention officer or PC Gane. The defence seeks to exclude the evidence of the drugs found in Mr. Singh's possession. The drugs were located by the loss prevention associate after he arrested Mr. Singh at 11:10 p.m. and seized by PC Gane from the loss prevention officer before Mr. Singh's s. 10(b) rights were administered.

[40] While there is no causal connection between the s. 10(b) breaches and the seizure of the drugs by police, there was a close temporal and contextual connection between the seizure of the drugs. A temporal and contextual connection were sufficient to engage s. 24(2) and exclude drug evidence in the case of R. v. Pino, 2016 ONCA 389.

[41] The exclusionary rule in s. 24(2) operates on the assumption that the routine admission of constitutionally tainted evidence has a long-term negative effect on the repute of the administration of criminal justice. As explained in R. v. Grant, 2009 SCC 32, 2009 S.C.C. 32, [2009] 2 S.C.R. 353, at para. 70:

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

(a) The seriousness of the state misconduct

[42] The three-pronged line of inquiry under s. 24(2) established in Grant is well-known. A court first looks to the seriousness of the Charter-infringing state conduct.

[43] PC Gane did not prioritize informing Mr. Singh's of his 10(b) rights immediately knowing he had been detained in the security office overnight for five hours. Minimizing any inconvenience to the loss prevention officer and inventorying property should have taken a back seat to advising Mr. Singh of his s. 10(b) rights, not the reverse.

[44] The breach resulting from PC Gane's decision to delay informing the defendant of his rights was compounded by his decision not to take additional steps when Mr. Singh's language barrier was apparent. This is particularly aggravating given the police officer's decision to take Mr. Singh back to the station for an indeterminate period of time as opposed to releasing him at the scene.

[45] My assessment is PC Gane's choices were the product of inexperience as opposed to indifference for the defendant's Charter rights. At the time he arrested Mr. Singh he was new on the job, within his first year. When he testified, he had been an officer for approximately two years. It appeared to me that PC Gane was going through a check list of the steps he was taught as opposed to critically reacting to Mr. Singh's personal circumstances. Nevertheless, it is simply not acceptable in a multi-cultural and diverse community such as Peel for an officer to take a mechanical approach to someone's right to counsel. An officer who makes a quick and cursory assessment that an individual's command of English is "good enough" does so at the risk of having his judgment called into question and evidence excluded.

[46] Repeated police practice like what took place in this case would bring the administration of justice into disrepute over time. I find the Charter-infringing conduct was serious and not merely technical.

(b) The impact on the appellant's Charter-protected interests

[47] I find the negative impact of the breaches to be moderate.

[48] As I have already acknowledged, there was no causal connection between the s. 10(b) breaches and the seizure of the drugs by police. This is a mitigating factor. That said, I am satisfied that the breaches impacted the security of the person interest protected by s.10(b). As the Ontario Court of appeal recognized in R. v. Rover, 2018 ONCA 745, [2018] O.J. No. 4646:

45 The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.

[49] In this case, when PC Gane arrived at Walmart Mr. Singh had been detained for five hours during the middle of the night waiting for police to respond. After Mr. Singh was taken to the police division he was detained for a further five hours, placed in a cell and not released from the division until after 10:00 a.m. A delay of this length, even when the persons in authority do not attempt to question the arrested person, has an impact on the arrested person's rights. The significant psychological pressure brought to bear on an individual from having been held without any end in sight or meaningful access to counsel for hours overnight must be considered in evaluating the harm done to his Charter-protected interests.

[50] Therefore, while the impact was not as serious as it would have been had there been a causal connection between the breach and the obtaining of the evidence, Mr. Singh's right to security of the person was clearly compromised.

(c) Impact of excluding the evidence

[51] The final consideration is the impact of excluding the evidence on society's interest in a trial on the merits. This factor clearly favours admitting the drug evidence. The evidence is reliable and crucial to the prosecution. To exclude the evidence is to allow a guilty person to go free on two charges of possession of a narcotic.

Conclusion on Section 24(2)

[52] Combined, the first two factors I must consider make a strong case for exclusion. Society's interests in an adjudication on the merits in this case does not tip the balance in favour of admissibility. In my view, this is one of those cases in which the long-term repute of the administration of justice requires the sacrifice of the short-term benefit of an adjudication on the merits of two counts of possession of a controlled substance.

[53] The drug evidence is excluded.

Result

[54] In the result, I find Mr. Singh guilty of theft and not guilty of both counts of possession of a controlled substance.

Released: December 5, 2019

Justice Sandra Caponecchia

Footnotes

[1] R. v. Harrer, [1995] 3 S.C.R. 562, at para. 12

[2] Harrer, at paras. 7 and 12

[3] R. v. Suberu, 2009 SCC 33, 2009 S.C.C. 33, [2009] 2 S.C.R. 460, at para. 41

[4] R v Rover, 2018 ONCA 745, [2018] OJ No 4646 para. 26, 27.

[5] R v Rover, 2018 ONCA 745, [2018] OJ No 4646, para. 27; R. v. Wu, 2017 ONSC 1003, at para. 78

[6] R v Culotta, 2018 ONCA 665, [2018] OJ No 3946 C.A. para. 29

[7] R. v. McGuffie, 2016 ONCA 365, at paras. 61-64.