Court Information

Ontario Court of Justice

Central East Region

Date: March 9, 2020

Parties

Between:

Her Majesty the Queen

— and —

Riyad Hamidu, Zakaria Husen and Elias Farah

Judicial Officer and Counsel

Before: Justice J. Bliss

Heard on: February 10, 11, 12 and 13, 2020

Reasons on Charter application released on: March 9, 2020

Counsel:

• J. Armenise — counsel for the Crown
• C. Levien — counsel for the accused Riyad Hamidu
• G. Pannu — counsel for the accused Zakaria Husen
• K. Soles — counsel for the accused Elias Farah

Overview

[1] On July 5, 2017, officers with the Barrie Police Service Community Response Unit were patrolling the downtown core. A few days earlier they had received an email from their supervisor of concerns from local residents and businesses of drugs being discarded and prostitution in the area. Cst. Vanschubert and his partner, Cst. Boehler, were asked to pay particular attention to anyone hanging out in the area around Dunlop Street West and High Street. They were in uniform but driving an unmarked police cruiser, a black or navy blue Dodge Charger, with tinted windows and a spotlight mounted on the driver's side door.

[2] At the northeast corner of Dunlop street and High street is a Pizza Pizza. There is street parking on the east side of High Street just north of the intersection. That is where the Toyota Camry that Zakaria Husen was driving, parked. When police drove by, there was no-one in the driver's seat, but there were two passengers in the vehicle. Elias Farah was in the front passenger seat. Riyad Hamidu was seated in the rear on the driver's side. As the police vehicle passed them, their reaction attracted the officers' attention. The police reversed back and parked in front of the Camry at an angle close to the front bumper. Both officers exited their cruiser and approached the Camry. Cst. Vanschubert questioned the front passenger while Cst. Boehler spoke with the rear passenger. Their inquiries of the passengers' identification and purpose for being in Barrie raised the officers' suspicions so they decided to wait to speak with the driver. When the driver returned to the car, Cst. Vanschubert spoke with him and obtained his name. When he broadcast a request for dispatch to check the name, another officer, Cst. Osborne, overheard Zakariah Husen's name and radioed the officers to hold Mr. Husen as he wanted to speak with him about an unrelated investigation. While waiting for Cst. Osborne to arrive, Cst. Vanschubert and Cst. Boehler continued to speak with the passengers and look inside the car with their flashlights.

[3] Once Cst. Osborne arrived, Cst. Vanschubert left Mr. Husen to look in the car. He observed a plastic bag that he believed contained drugs. He ordered the two passengers out of the car, and all three defendants were arrested for possession of a controlled substance. Cst. Boehler and Vanschubert then conducted a search of the vehicle incident to arrest. Under the centre console were more baggies with suspected drugs. Under the drugs was a cocked and loaded Colt 1911 .45 calibre semi-automatic handgun.

[4] Zakaria Husen's trial before me was on eight counts related to his alleged possession of the handgun: Careless storage, weapons dangerous, possessing a firearm without being the holder of a licence contrary to s. 91(1) of the Criminal Code, possessing of a firearm knowing he was not the holder of a licence contrary to s. 92(1) of the Criminal Code, being the occupant of a motor vehicle in which he knew there was a firearm, possessing a loaded restricted firearm, possessing a restricted firearm together with readily accessible ammunition capable of being discharged in the firearm and not being the holder of an authorization or licence under which he may possess the firearm, and removing a serial number on a firearm without lawful excuse.

[5] Elias Farah was arraigned on charges of wilfully obstructing Cst. Vanschubert, a peace officer engaged in the execution of his duty by providing a false name, and failing to comply with his recognizance by having in his possession more than one cell phone or one cell phone SIM CARD registered in his name. The Crown invited me to dismiss the obstruct peace officer charge.

[6] Like Mr. Farah, Riyad Hamidu was charged with obstructing a peace officer, Cst. Boehler, by providing a false name, and like Mr. Farah, the Crown invited me to dismiss that charge. That left Mr. Hamidu facing two counts of failing to comply with his recognizance by not remaining outside the City of Barrie unless he is with one of his sureties, and by having in his possession any cell phone, pager or personal digital assistance.

[7] Riyad Hamidu alleges violations of his ss. 8, 9 and 10 Charter rights. He submits that he was arbitrarily detained, denied his right to counsel, questioned about his identity, subject of an unreasonable search by the police database, and that only through the observations and inquiries made during the course of his unlawful detention did police discover that he was subject to a recognizance with conditions that he was clearly breaching.

[8] Elias Farah similarly alleges that police breached his rights under ss. 8, 9, and 10(b) of the Charter and submits that the evidence of his identity and observations of him that support the charge of breaching his recognizance should be excluded.

[9] Zakaria Husen argues that police breached his s. 8, 9 and 10(b) Charter rights and that it was only through the violation of those rights that police were able to make observations of the interior of the vehicle, discover suspected drugs and, more importantly for the trial before me, the firearm.

[10] The defendants argue that all of the evidence, including any utterances, that implicates them in their respective charges were the result of their Charter rights being violated. Riyad Hamidu and Elias Farah argue that the evidence of their identification, and the discovery of the recognizances they were subject to, should be excluded since admission of that evidence in the face of the constellation of Charter violations would bring the administration of justice into disrepute. Mr. Husen submits that the violations call for the exclusion of the firearm pursuant to s. 24(2) of the Charter. The Crown concedes the police violated the defendants' Charter rights, but argues that admitting the evidence would not bring the administration of justice into disrepute.

The Events Leading to the Charter Breaches

[11] Admission or exclusion of the impugned evidence against each defendant pursuant to s. 24(2) of the Charter involves an assessment of the seriousness of the Charter-infringing state conduct, impact on the Charter-protected interests of the accused, and society's interest in an adjudication on the merits (R. v. Grant 2009 SCC 32, [2009] S.C.J. No. 32). To understand my conclusions in respect of each defendant's claims requires a more detailed recitation of the events than the overview set out above.

[12] Cst. Vanschubert described part of his job with the Community Response Unit as speaking to people and see what they are doing in the downtown area. He was very familiar with the area in question. He described High street and Dunlop street as a high traffic area with vehicles and people going in and out of the area. On the night in question, he was working a 4:00 p.m. to 4:00 a.m. shift with Cst. Boehler. Part of their job was to respond to complaints of drugs being discarded and prostitution in the area. His intent was to speak to individuals and see what they were doing in the area. That night, before coming across the defendants, he and his partner had done many circuits around Dunlop and High Street but had not stopped and investigated anyone else or any other vehicle.

[13] At 11:35 p.m., Cst. Vanschubert was driving an unmarked Dodge Charger. He was travelling south on High street at 30 km/h when he noticed a black Toyota Camry parked on the east side of High street facing north. Two black males were sitting in the vehicle; one in the front passenger seat and one in the rear behind the driver's seat. As he passed the Camry, he testified that he saw the males "kind of slouch down and move around in the car like they were trying to get below the door."

[14] Cst. Boehler was with Cst. Vanschubert. His evidence was that when they passed the Camry, both males turned their heads to watch the unmarked police vehicle drive by. He found that suspicious as they looked "alerted". He immediately made a comment to his partner about the males which caused his partner to back up to where the Camry was, shine their spotlight at the vehicle, and park their cruiser at an angle in front of the vehicle. Cst. Vanschubert explained the use of the spotlight as a practice he engages in with all vehicles for their safety and his own. While Cst. Vanschubert was of the view that if the driver of the Camry wanted to leave he could by reversing, the reality was that the Camry was effectively blocked from leaving. He denied the suggestion that he had targeted this vehicle because the individuals were young or black, but testified that he did so because police were responding to community complaints. Both officers conceded that when they exited their police vehicle and approached the Camry, there was no evidence to suggest that the occupants were committing any criminal offence.

[15] Cst. Boehler testified that his suspicion was raised when the police spotlight was turned on and pointed at the two males in the vehicle. Instead of looking away, the men looked back wide-eyed, and then as soon as the officers got out of their vehicle, the males slouched down. He testified that it was not the fact that the men were black that they were targeted but because they were younger and in an area known for prostitution. He thought that maybe they were in the area for "a good time". He did not believe they were pimps but thought "they might be purchasers". While I am ultimately unable to say that these men were targeted because they were black, it is curious that, as Cst. Boehler conceded, the officers observed a number of individuals in vehicles who were approaching prostitutes that evening, but they did not stop and investigate those individuals or their vehicles, only the defendants.

[16] Cst. Vanschubert walked directly to the front passenger side of the Camry. The passenger, Elias Farah, leaned towards the steering wheel and turned the keys and put his window up. Mr. Farah's act of turning the key in the ignition to close his window because he did not want to speak to police, was described by Cst. Boehler as the passenger seeming nervous, touching the centre console, then quickly returning as police approached.

[17] Cst. Vanschubert knew that there was no obligation for the passenger to speak with police. He admitted that he took Mr. Farah closing the window to be him expressing that he did not wish to speak with police. The officer testified that "it took a bit of persuasion" to have him put the window down so he could speak with him, but eventually Mr. Farah complied. It is clear from the video of the interaction captured by the security camera across the street that Cst. Vanschubert had positioned himself right at the passenger window and that if Mr. Farah had opened his door, he would have struck the officer. Between the police vehicle blocking the Camry from driving forward, and the officer, in full uniform and with a taser and firearm blocking the passenger door, Mr. Farah was not going anywhere. Although he testified that he would have stepped back if Mr. Farah had opened the door, that was not what the officer's position suggested, nor was it something the officer told Mr. Farah. Despite testifying at trial that he would have let the passenger get out of the vehicle if he wanted, Cst. Vanschubert's preliminary hearing testimony, which I accept, was that he did not want the passenger to get out of the car.

[18] Cst. Vanschubert told Mr. Farah of the complaints of criminal activity in the area and wanted to know what he was doing in the area. Mr. Farah told the officer that he was waiting for his friend, the driver, who was in Pizza Pizza. The officer asked what the driver's name was. Mr. Farah said he didn't know. Cst. Vanschubert asked Mr. Farah his name and where he was coming from. Mr. Farah told him his name was Jamal Mohammed and provided a date of birth of July 28, 1995. He said he was coming from Georgian College and had been looking at the campus. The officer observed cell phones in his hand, but while multiple cell phones could be the tools of a drug trafficker's trade, Cst. Vanschubert testified that the thought did not cross his mind and did not set off any alarm bells. He ran both passengers' names to confirm there were no warrants or breaches of any recognizances. Both names came back as having no criminal charges or records. The officer disputed that the men were detained, that running their names constituted an investigation, or that the men were subject to an investigative detention. He testified that it is his practice to ask for the names of all individuals he comes into contact with and, while he agreed that Mr. Farah did not have to identify himself, he did not advise him of this.

[19] When Cst. Boehler exited the police cruiser, he went directly to the rear passenger door and leaned against it which blocked the passenger exiting from that door. The rear passenger, who was later identified as Riyad Hamidu, appeared very nervous. He was looking around and breathing heavily and had a cell phone in his hand. Cst. Boehler conceded that the passenger was physically detained. He did not tell the passenger that he could go or that this was a voluntary conversation. The officer acknowledged that detained individuals have a right to speak with counsel but no rights to counsel were provided. Mr. Hamidu identified himself as Ziad Hamidu with a date of birth. Police checks of that name were negative. Mr. Hamidu had, in fact, falsely identified himself as his brother, but police only learned of this later at the police station after Mr. Hamidu had been arrested. Cst. Boehler asked the passenger why he was in Barrie and Mr. Hamidu said they were here for Canada Day. At almost the same time, he heard the front passenger tell his partner, in response to the same question, that they were in Barrie to visit Georgian College. The two officers looked at each other over the car and "sort of snickered like they had given conflicting stories". According to the police, the passengers were not subject of any criminal investigation and he had no reason to continue questioning them. They were free to leave, but Cst. Vanschubert wanted to wait to speak with the driver.

[20] At 2338 hours, the driver, Zakariah Husen, approached the vehicle asked if he could help. Cst. Vanschubert's attention then turned to the driver. The officer told Mr. Husen that police had received complaints of prostitution and drugs and pimps sitting in vehicles directing girls. Apart from a known prostitute coming up to the police complaining that their presence was hurting business, there was no evidence of anyone approaching the Camry or anyone from the vehicle communicating with any prostitute. Mr. Husen identified himself and explained that he was the driver of the vehicle and had gone into the Pizza Pizza. He was asked for the name of the front passenger, and he gave a different name than the one the passenger had provided.

[21] Cst. Vanschubert remained with Mr. Husen on the sidewalk while he radioed dispatch to check for any warrants or conditions that were being breached. At 2343 hours, when the inquiry was made and Zakariah Husen's name was broadcast over the air, Cst. Osborne contacted Cst Vanschubert because he wanted to speak with Mr. Husen about an unrelated investigation. Cst. Vanschubert did not know what Cst. Osborne wanted to speak to the defendant about. His evidence was that he asked Mr. Husen if he would mind waiting for an officer who wanted to speak with him. His evidence was that Mr. Husen was fine with that, and if he had said "no", he would have been free to go. Mr. Husen was not told that he was free to go or that he did not have to answer any questions. Cst. Vanschubert denied that Mr. Husen was detained, but Cst. Boehler's testimony was that Cst. Osborne said that "[he] need[ed] to speak to this male or hold onto this male or not to let the male go", and Cst. Osborne's evidence was that when he heard the query for Zakaria Husen, he asked them to hold the person so he could speak with him.

[22] Cst. Vanschubert and Cst. Boehler talked about the different answers the passengers had provided about why they were in Barrie and how the driver had said the passenger's name was Elias which was not the name the passenger had provided. Cst. Vanschubert approached the passenger and asked him what his name was. This time, he said his name was "Elias Mohammed". That person was Elias Farah. Even still, Cst. Vanschubert testified that he gestured to his partner that they "had nothing".

[23] While waiting for Cst. Osborne, Cst. Vanschubert stood with Mr. Husen and Cst. Boehler "shooting the breeze". At 2347 hours, Cst. Osborne arrived and parked his cruiser close to the Camry's rear bumper. While Cst. Osborne was speaking with Mr. Husen, Cst. Vanschubert was more to the rear than the front of the Camry. The police cruiser's spotlight was still aimed at the vehicle and he used his flashlight to look inside the vehicle to make sure the passengers, who were essentially being kept confined in the vehicle, were not doing anything unlawful as "they were in a high crime area" and the officers' suspicions had increased with Mr. Farah's responses. Cst. Vanschubert then saw the rear passenger reach towards the centre console. That drew his attention to the area. Using his flashlight, he saw a white plastic ball packaged how he believed drugs to be packaged. Cst. Boehler was close by Cst. Osborne's cruiser checking Ziad Hamidu's name. It appeared to Cst. Vanschubert that the passenger was reaching for this package so he opened the back door, grabbed the package, and called out what he had found. He told the other officers to arrest all of the individuals. When Mr. Farah was arrested, he had cell phones in his hands.

[24] At 2351 hours, Cst. Vanschubert arrested Mr. Husen for possession of a controlled substance, escorted him to his police vehicle, patted him down, and handcuffed him. At 2353 hours, he provided Mr. Husen with his rights to counsel. Mr. Husen wanted to speak with legal aid. The officer went back to search the Camry for further evidence and identification since the front seat passenger had provided two names. In the area where he found the first baggie, he found a second in yellow wrap. In the centre console area between the gear shift and the armrest was a tray portion that appeared loose. He lifted up the tray and directly under it was a large silver handgun, a Colt 1911 .45 calibre semi-automatic handgun.

[25] Cst. Osborne testified that when he was searching the vehicle, he observed a change dish in the centre console that appeared askew. When it was removed, drugs and the firearm was located. The hammer was cocked and it was loaded. Cst. Osborne removed his gloves and proved the gun safe. In the vehicle's trunk was a target like one would find on a shooting range and a security uniform. He advised the defendants that that they would be charged with possession of a restricted weapon. At 12:01 a.m., he again provided Mr. Husen with his rights to counsel and caution. Cst. Vanschubert took possession of the drugs and Osborne took the handgun, and they returned to the station to process the defendants.

The Law

[26] The Crown has conceded that the defendants' Charter rights were violated as alleged: That they were arbitrarily detained, not provided with their rights to counsel, questioned about their identities, subject to unreasonable searches through the police database, and that their vehicle was subject of an unreasonable search which led to the discovery of suspected drugs and a firearm. There is no issue that Elias Farah and Riyad Hamidu were breaching their respective recognizances, and that a loaded and cocked firearm was found in the vehicle that Zakariah Husen was operating. The question is whether the police conduct was such that admitting the evidence that was discovered as a result of those Charter violations would bring the administration of justice into disrepute. While the police interaction with the driver and the discovery of the suspected drugs and handgun differs from the issues that arise from the police conduct towards the passengers, the entirety of the police officers' interaction with the vehicle and its occupants can be viewed as a continuum of Charter violations. The factors engaged by the s. 24(2) analysis apply to all of the defendants, but there are different considerations that apply to the passengers than apply to the driver.

[27] The question is how far can police go in their interaction with members of the public before evidence that is discovered as a result of that interaction offends Charter rights and brings the administration of justice into disrepute. In R. v. Omar 2019 SCC 32, [2019] S.C.J. No. 32, a police stop of Mr. Omar, who was walking late at night, led to the discovery of a loaded handgun, ammunition and cocaine. At trial, despite finding that the stop breached the appellant's s. 9 Charter right not to be arbitrarily detained, that the search violated his s. 8 right to be secure against unreasonable search and seizure, and that his s. 10(b) right to be informed of his right to counsel without delay was violated, the trial judge refused to exclude the evidence pursuant to s. 24(2) of the Charter. That was overturned by a majority of the Court of Appeal, but the convictions were restored by the Supreme Court of Canada "substantially for the reasons of Brown J.A." (2018 ONCA 975, [2018] O.J. No. 6346 (C.A.)).

[28] In the Court of Appeal's decision, Brown J.A. noted that "[i]n R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, the Supreme Court stated, at para. 3, that "[s]ection 9 of the Charter does not dictate that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime", but recognized, at para 78, that "nevertheless, neighbourhood policing gives rise to a "complex situation": Grant at paras. 38 and 40. Part of that complexity lies in ascertaining when a police interaction with a member of the public crosses the line to create a psychological detention." (Omar, supra, para 77-78)

[29] While the Charter violations were conceded in the present case, the references in Omar (supra, para 78) that Brown J.A.'s makes to R. v. Mann 2004 SCC 52, [2004] 3 S.C.R. 59 is relevant to the issues before me. Brown J.A. wrote that "[t]he complexity inherent in that line-drawing exercise was described by the Supreme Court in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 15-16 and 19:

As stated earlier, the issues in this case require the Court to balance individual liberty rights and privacy interests with a societal interest in effective policing...

Nowhere do these interests collide more frequently than in the area of criminal investigation. Charter rights do not exist in a vacuum; they are animated at virtually every stage of police action. Given their mandate to investigate crime and keep the peace, police officers must be empowered to respond quickly, effectively, and flexibly to the diversity of encounters experienced daily on the front lines of policing.

"Detention" has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to "detain", within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be "detained" in the sense of "delayed", or "kept waiting". But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.

See also Suberu, at para. 23

[30] The difference between the result in Omar (supra) and the case before me, as the prosecution recognized, is that the police stop here did involve "significant physical and psychological restraint" of the passengers. Cst. Vanschubert's view notwithstanding, he parked the police cruiser in front of the vehicle Elias Farah and Riyad Hamidu were sitting in and blocked it from moving forward. One officer then approached and stood in front of the front passenger door while the other stood in front of the rear driver's side door.

[31] Section 9 of the Charter requires that a person detained for investigative purposes be advised, in clear and simple terms, the reason for his detention. (Mann, supra, para. 21) The police maintained that the defendants were not being investigated for any criminal investigation but they were caught up in what may be described as "community" or "neighbourhood policing". The problem here was that the police could not articulate any crime they reasonably suspected the passengers to have been engaged in notwithstanding the community complaints that the police were acting on. The passengers were detained and that was a breach of s. 9.

[32] Once an individual is detained for investigative purposes, s. 10(b) of the Charter is engaged and guarantees the right to retain and instruct counsel without delay and to be informed of that right "immediately" upon detention. (Suberu, at paras. 37-42). The vehicle's passengers were not advised of those rights because the police were of the view that the occupants were not detained. Mr. Farah made clear that he did not wish to speak with police but that was not heeded. While the officers explained the community complaints that led them to approach the men, the passengers' responses to the police questioning and request they identify themselves was then used to check those names on the police database for any warrants or breach of recognizances despite there being no evidence, or even suspicion, that they had committed any criminal offence. When those checks, based on false names, came back negative and the police admitted they "had nothing", instead of ending their investigation or interaction, the police kept the passengers detained in the vehicle until the driver returned. Even after the driver returned, the passengers remained under police detention even as the driver was being held for Cst. Osborne's investigation.

[33] In R. v. Pinto, [2003] O.J. No. 5172 at para 55 (S.C.J.), Hill J. wrote that "Mathew Pinto was entitled to sit in the front passenger seat of the Honda and be left alone while the car's driver was processed in some fashion for the alleged s.75(4) Highway Traffic Act violation. In a lawful traffic stop, as a general rule, a vehicle passenger cannot be subjected to non-consensual dragnet or general investigative questioning or identification production. Constable Smith was not engaged in the lawful execution of duty in proceeding as he did to request Pinto's identification."

[34] In R. v. Harris 2007 ONCA 574, [2007] 87 O.R. (3d) 214 at para 40 (C.A.), Doherty J.A. wrote that "a person under police detention who is being asked to incriminate himself has more than a reasonable expectation of privacy with respect to the answers to any questions that are put to him by the police. That person has a right to silence unless he or she makes an informed decision to waive that right and provide the requested information to the police: R. v. Hebert, [1990] S.C.J. No. 64. In the circumstances, Harris's identification in response to the officer's question constitutes a seizure and attracts s. 8 protection".

[35] In R. v. Whyte [2009] O.J. No. 3557 (C.J.), Pringle J. found multiple breaches from the police interaction with Mr. Whyte, who was a passenger in a vehicle that had been stopped for an HTA investigation, and ultimately excluded the evidence. The officer had asked Mr. Whyte for his name because he was investigating him and wanted to record the name of someone he had placed in handcuffs in his notes, and ran his name through CPIC. The Crown submitted that the officers were entitled to ask Mr. Whyte for his name as a part of their investigative detention. Pringle J. wrote that "in cases of legitimate detention where a suspect has been properly advised of his right to counsel, that it may be that there is nothing wrong with that request. However, that was not the situation here." She found that "the detention was arbitrary because it was based on a hunch and could not be justified on the basis of officer safety. Mr. Whyte was not given his right to counsel before the officer questioned him about his identity, and one of the purposes of asking his name was to run it through CPIC." (Whyte, supra, para 26-27)

[36] At paragraph 28 of Whyte, Pringle J. referred to Doherty J.A.'s reasons in Harris (supra at para 38-40) where he found that "the police officer's request for the name of a passenger during a Highway Traffic Act investigation of the driver amounted to a search:

... Harris was under police detention. [The officer] was not asking Harris to identify himself out of some sense of curiosity or so he could greet Harris by name should they meet again. [The officer] had a very specific purpose in mind when he asked for identification. He intended to use that identification to access a wealth of personal information about Harris before allowing Harris to proceed on his way ...

... A person under police detention who is being asked to incriminate himself has more than a reasonable expectation of privacy with respect to the answers to any questions that are put to him by the police. That person has a right to silence unless he or she makes an informed decision to waive that right and provide the requested information to the police: R. v. Hebert (1990), 57 C.C.C. (3d) 1 (S.C.C.). In the circumstances, Harris's identification in response to the officer's question constitutes a seizure and attracts s. 8 protection.

[37] In Mr. Whyte's case, he was arbitrarily detained. He was questioned during a criminal investigation without being given his right to counsel, and his name was requested so that the police could check his background on the police computer. The demand for his name was found to be an unreasonable search and seizure. Pringle J. concluded that "[t]he impact to Mr. Whyte's liberty interest was significant, as was the impact of his uninformed decision to mislead the police about his identity. While Mr. Whyte was clearly lying in this case, the long term repute of the administration of justice would suffer if this kind of police conduct during a motor vehicle stop was condoned." (Whyte, supra, para 29, 39)

[38] If police had stopped the vehicle for purposes of a valid HTA investigation, the s. 10(b) rights would not be triggered (Harris, supra, at para. 47). Here, the passengers were detained from the outset and they remained detained while subject to a criminal investigation if only into whether they were wanted for any criminal offences or subject to a recognizance. In those circumstances, police were obliged to advise the passengers of their right to retain and instruct counsel immediately.

[39] In R. v. Mlongo 2017 ONCA 562, [2017] O.J. No. 3439 (C.A.) at para 51, the trial judge had relied on Harris (supra) and R. v. Johnson, 2013 ONCA 177 to conclude that the police officers request for identification for purposes of a general criminal investigation, rather than a valid HTA-investigation, constituted a breach of the appellant's right to be protected from unreasonable search and seizure. The request for identification, in circumstances of the appellant's detention pursuant to the traffic stop, amounted to a warrantless seizure without reasonable cause.

[40] At para 52 of Mlongo, the Court wrote: "As Doherty J.A. explained in Harris, at paras. 40-41 and 44:

In the circumstances, Harris's identification in response to the officer's question constitutes a seizure and attracts s. 8 protection. The seizure was unreasonable. As in Mellenthin, [the police officer] had no reason to suspect Harris (the passenger) of anything when he questioned him and requested his identification. The purpose for the stop and the consequential detention of Harris and the other occupants of the vehicle had nothing to do with the request for Harris's identification. The purpose of the stop did not justify an at large inquiry into Harris's background or his status in the criminal justice system. That was the effect of the request for identification. Just as in Mellenthin, [the police officer] expanded a Highway Traffic Act stop into a broader and unrelated inquiry. Harris's identification of himself provided the entrée into that broader and unrelated inquiry. I conclude that Harris was subject to a seizure when he gave [the police officer] his identification. The seizure was warrantless and without reasonable cause."

[41] Like the situation in Mhlongo (supra), despite the request for identification, both Mr. Farah and Mr. Hamidu remained detained following the CPIC and Niche searches. Had they been free to leave, it would not have been discovered that each were on recognizances of bail they were clearly breaching.

[42] In R. v. Grant 2009 SCC 32, [2009] S.C.J. no. 32, the Supreme Court set out the three lines of inquiry relevant to the s. 24(2) analysis: The seriousness of the Charter-infringing state conduct, impact on the Charter-protected interests of the accused, and society's interest in an adjudication on the merits.

[43] The passengers were held unlawfully for investigation for eighteen minutes, questioned, and not provided with rights to counsel during that period at the very time when they would need it most. There were three consecutive Charter breaches committed: s. 9, s. 10(b) and then s. 8. They were serious. To borrow from Blair J.A. in Mlongo at para 62, "the s. 9 violation provided the entrée to the two serious ss. 10(b) and 8 violations that followed."

[44] The unlawful detention of Mr. Hamidu and Mr. Farah was for the purpose of a criminal investigation. While suspicions may have been raised, the police did not consider even their heightened suspicion sufficient to detain the passengers for investigation. Their continued detention, even after the criminal records check had come back negative, makes the continuum of breaches that much more serious. Mr. Farah made it clear that he did not wish to engage with the police by putting his window up. That had no effect. The officer simply persisted by remaining at the window until Mr. Farah complied. Mr. Hamidu's failure to express in words or acts his wish not to speak to police is not fatal given the Crown's concession that both passengers were detained and entitled to be afforded their Charter rights. The police conduct towards the passengers cannot be condoned. The Charter breaches were serious and points strongly towards exclusion of the impugned evidence.

[45] The unlawful detention gave rise to the defendants' immediate right to counsel. The failure of the police to advise either of their s. 10(b) rights deprived them any meaningful opportunity to exercise their legal rights during the investigative detention and, ultimately, they incriminated themselves by speaking, and lying, to police about their names. They remained held without cause while the driver was being investigated. Mr. Hamidu was subject to Cst. Boehler positioning himself right outside the rear driver's door, with Cst. Vanschubert moving between the front and back passenger side using his flashlight to search the interior of the vehicle. It was that search that led to the discovery of the suspected drugs, the arrest of all, and the revelation of their real identities and violation of their respective recognizances.

[46] While the dissenters in Omar (supra) at the Supreme Court of Canada left the question "for another day" whether police should caution persons that they stop and question that they need not remain or answer questions, I would simply observe that the right would seem to be a hollow one if police can question individuals knowing those individuals have no obligation to respond, but the individuals themselves are kept ignorant of that right. Regardless, the detention that flowed from the police conduct towards the passengers in the case before me triggered their s. 10(b) rights. Had they been informed of those rights they may very well have chosen to respond differently to police or not at all. The second Grant factor strongly favours exclusion of the evidence.

[47] Ultimately, the court must ask "whether the vindication of the specific Charter violation through the exclusion of evidence extracts too great a toll on the truth-seeking goal of the criminal trial….While the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)'s focus." (Grant, supra, para 82; Doherty J.A. in Kitaitchik, [2002] O.J. No. 2476 at para 47 (C.A.))

[48] In R. v. Harris, (supra, para 63), Doherty J.A. stated the following:

The third factor to be considered is the nature of the breach viewed from the perspective of those whose rights are infringed. I cannot accept the Crown's characterization of this breach as "minimally intrusive". The use of the broad powers …[associated with Highway Traffic Act stops] to routinely investigate passengers who have nothing to do with the concerns justifying those stops must have a significant cumulative, long-term, negative impact on the personal freedom enjoyed by those who find themselves subject to this kind of police conduct. While for persons in some segments of the community, these stops may be infrequent, this record suggests that for others the stops are an all too familiar part of their day-to-day routine. Viewed from the perspective of those who are most likely to find themselves stopped and questioned by police, I think this form of interrogation is anything but trivial. It seems to me at some point it must become provocative.

[49] Mr. Hamidu and Mr. Farah were clearly guilty. Excluding the evidence that emanated from the police interaction with them will mean that they will walk free, but society's interest in the adjudication of cases on their merits cannot be at the cost of condoning the police conduct that was displayed here. The police are not prevented from engaging in police work, talking to members of the public, asking for identification and making general inquiries, but when those members of the public are physically or psychologically detained, that police work brings with it a responsibility to respect the Charter and provide the members of the public that they engage with the rights they are entitled to under the Charter. If they do so, their interaction cannot be complained of, but where they do not, the evidence that police obtain may well be excluded because the manner in which it was obtained would bring the administration of justice into disrepute.

[50] The impact to Mr. Farah and Mr. Hamidu's liberty interest was significant, as was the impact of their uninformed decisions to mislead the police about their identity. While they were both clearly lying in this case, the long term repute of the administration of justice would suffer if this kind of police conduct was condoned. Balancing all three factors in Grant, the evidence against each will be excluded. There being no other evidence capable of establishing their respective guilt beyond a reasonable doubt, the charges against Elias Farah and Riyad Hamidu will be dismissed.

[51] Mr. Husen is in a different position than his "co-defendants". Mr. Husen returned to his vehicle from the area of the Pizza Pizza at 2338 hours. While Cst. Vanschubert engaged him in conversation and took his name for identification purposes and "interviewed" him, he remained on the sidewalk. The Crown made the concession that that this was the kind of neighbourhood policing, to use the language in Omar and Mann, that did cross the line to a psychological or physical detention. I accept the Crown's concession that Mr. Husen was arbitrarily detained, but in doing so, I would note Brown J.A.'s observations in Omar (supra):

92 Suberu was a companion case to Grant. The analysis in Suberu illustrates the fluidity of the contextual psychological detention line-drawing exercise. There, one officer followed Mr. Suberu out of a retail store where the police were investigating the use of a stolen credit card. The officer said: "Wait a minute. I need to talk to you before you go anywhere"; at para. 9. The Supreme Court concluded that this constituted preliminary questioning in the circumstances, not a detention: at para. 33.

93 Two decisions of this court - Atkins and R. v. Fountain, 2015 ONCA 354, 324 C.C.C. (3d) 425, -- considered similar conduct by police officers that initiated interactions with young men walking along city streets. In Atkins, the officers were in a van when they called to the young man -- "hey", "hey buddy" -- and waved at him to come over. In that case, the appellant argued that he was arbitrarily detained when the officer commanded him to come to the van with her verbal calls and when she waved. The trial judge rejected that submission. This court upheld the trial judge.

94 Fountain, decided two years later, involved a young man who was walking past a police car when an officer called him over for questioning. The officer had dealt before with the young man or his brother and believed that a warrant was out for one of them. In Fountain, this court concluded that the officer had unlawfully detained the young man "from the moment he called out to him," from "the outset of their conversation": at paras. 17 and 21.

95 Atkins and Fountain considered very similar initiating conduct by the police, yet they reached different conclusions about whether that conduct amounted to a psychological detention, no doubt driven by different "contextual" analyses.

97 I have reviewed these cases to illustrate that the conceptual certainty of Grant's established legal standards, which underpins my colleague's critique of the trial judge's approach to the first Grant factor, in reality becomes fuzzy when applied to the specifics of a particular case. The conflicting results of this court in Atkins and Fountain, decided only two years apart, exemplify the lack of certainty and practical "on-the-street" guidance offered by the s. 9 jurisprudence in the context of community policing interactions.

[52] The above passages demonstrate that detention is contextually driven and not always clear. Contrary to what Cst. Vanschubert testified to, I do not believe his evidence that when he broadcast Zakariah Husen's name over the airwaves at 2342 hours and received a response from Cst. Osborne, that he simply asked Mr. Husen "if [he] wouldn't mind waiting because an officer wanted to speak to [him]." Cst Boehler testified that Cst. Osborne told the officers on scene that he needed to speak with the male, or to hold onto this male or not let this male go" and Cst. Osborne himself testified that he asked Cst. Vanschubert "to hold" Mr. Husen. He was entitled to do so on the basis of the driving investigation that Cst. Osborne had been involved in that identified Mr. Husen as the alleged driver and the difficulty he had locating Mr. Husen to summons him to court. There was no evidence what the nature of the investigation was; whether it was for an HTA or Criminal Code offence, but for purposes of the s. 24(2) analysis I will consider that Mr. Husen was subject to an investigative detention that would have triggered his s. 10(b) right to counsel.

[53] Mr. Husen remained on the sidewalk waiting for Cst. Osborne to arrive for four to five minutes according to Cst. Vanschubert and three to five minutes according to Cst. Osborne. When Cst. Osborne arrived, he parked his police cruiser so that it effectively block the Camry in from the rear. Mr. Husen was with Cst. Osborne for about two minutes while Cst. Vanschubert continued looking into the interior of the vehicle that Mr. Husen was purportedly driving. Cst. Vanschubert then called out that he had found drugs in the vehicle and all were then arrested. From the officer's recollection, Mr. Husen was engaged with police for fifteen minutes until his arrest. At 2353 hours he was read his rights to counsel in relation to the drugs, then again at 0001 hours in relation to the firearm. He remained at the scene until transported to the station at 1213 hours. There was no evidence that Mr. Husen ever exercised that right by speaking with "legal aid" as he requested, nor was there evidence that he did not.

[54] The security video from across the street captured the interaction between police and the defendants. It begins, according to the time on the video, at 11:32 p.m. when the police cruiser passes, then backs up, shining the spotlight on the occupants of the vehicle and parking in front of the Camry. Cst. Vanschubert walks to the passenger side and Cst. Boehler to the rear driver's side door. Both appear to be shining their flashlights into the vehicle. At 11:37 p.m., Mr. Husen walks to the vehicle from the direction of the Pizza Pizza. He walks towards the officers and onto the sidewalk where Cst. Vanschubert is standing. Mr. Husen remains standing on the sidewalk by the Camry's rear bumper. At 11:41 p.m., Cst. Vanschubert leaves Mr. Husen and walks to the front passenger side of the Camry. His attention is clearly then on the occupants of the motor vehicle. At 11:43 p.m., he walks to the rear of the Camry then to the driver's side leaving Mr. Husen on the sidewalk and then returns to where Mr. Husen is standing. At 11:47 p.m., Cst. Osborne arrives, parks his cruiser behind the Camry, and walks directly to where Mr. Husen is standing. Cst. Vanschubert then leaves Mr. Husen and walks to the rear of the Camry and can be seen looking into the vehicle. At 11:48 p.m., Cst. Boehler leaves the rear passenger side and walks towards Cst. Osborne's car. At 11:49 p.m., Cst. Vanschubert walks to the front of the Camry and then to the rear while using his flashlight to look in the car. At 11:50 p.m., Cst. Boehler opens the rear door and arrests Mr. Hamidu which clearly marks when the purported drugs were found.

[55] If the commencement of the detention was from the time Mr. Husen walked up to the officers and began speaking with them, that was at 11:37 p.m. according to the time on the security camera. It took ten minutes for Cst. Osborne to arrive and then another three minutes before Mr. Husen was arrested, making the total time that Mr. Husen was detained, as the Crown concedes, at thirteen minutes.

[56] As the Court of Appeal noted in R. v. Pino 2016 ONCA 389 at para 72-73, "the following considerations should guide a court's approach to the "obtained in a manner" requirement in s. 24(2):

• the approach should be generous, consistent with the purpose of s. 24(2);
• the court should consider the entire "chain of events" between the accused and the police;
• the requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct;
• the connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections;
• but the connection cannot be either too tenuous or too remote.

[57] The observation of the suspected package of drugs provided the police with the grounds to search the vehicle, which in turn led to the discovery of the firearm. The connection of the firearm to the Charter breaches is that "but for" the unlawful and arbitrary detention of the passengers, there was no basis to investigate the vehicle nor its driver, that Mr. Husen was, if not physically detained, psychologically so by Cst. Vanschubert to continue his investigation without a basis to do so, that the inquiry for his name led to its broadcast which, but for that, Cst. Osborne would not have directed the officers to hold Mr. Husen, and he would have been free to leave, and no observations of the interior of the vehicle would have been made and so no firearm ever discovered. While requiring a number of steps, it is not so tenuous or remote to disengage the s. 24(2) analysis.

[58] The Crown argues that the Court of Appeal's remarks in R. v. Wright 2013 ONCA 778, [2013] O.J. No. 5895 at para 15 (C.A.) points to the admission of the gun not its exclusion: "Applying the three criteria from R. v. Grant, 2009 SCC 32, the first is the seriousness of the Charter-infringing conduct. We agree with the trial judge's finding that the officers acted in good faith in the sense that they did not decide to search the vehicle until they had developed the requisite reasonable and probable grounds in light of unfolding events at the scene of the vehicle stop." In the case before me, unlike Wright, there were no exigent circumstances facing the officers. After he returned from the Pizza Pizza, Mr. Husen was the subject of the officer's general inquiries while standing on the sidewalk. While Mr. Husen was not physically detained on the sidewalk, he would not have been free to go without offering his name and allowing the police to conduct a search of his name on the police database.

[59] There was no evidence that either officer at the scene was aware why Cst. Osborne wanted Mr. Husen held. Cst. Osborne was minutes away. Even if described as a detention from the moment Mr. Husen interacted with police, it was not so clear that I would characterize the failure to provide the rights that are owed a detained individual as deliberate or reckless or negligent. If Mr. Husen should have been provided with his right to counsel in relation to some unknown offence while he was being held to wait for Cst. Osborne, there was no evidence that access to counsel could have been facilitated. The "detention" ended up being for a valid HTA investigation. Mr. Husen had been allegedly stopped for speeding by Cst. Osborne but then fled, evading the pursuing officer, and subsequent attempts to contact Mr. Husen were unsuccessful because his contact information was not current. A brief, lawful, roadside detention for a valid HTA purpose, would not have triggered Mr. Husen's s. 10(b) rights. (Harris, supra, para 47)

[60] While the observations of the package of purported drugs would not have been made had Mr. Husen been allowed to leave, it was clear from the way that Cst. Osborne parked his vehicle, that he wished to have the Camry blocked from leaving until he was able to finish his investigation. That is consistent with his and Cst. Boehler's evidence, which I accept. The questioning of Mr. Husen and discovery of his identity and his subsequent detention was not so connected to the subsequent observations of interior of the vehicle, and the Charter-infringing conduct not sufficiently serious, to warrant the exclusion of the firearm found.

[61] Zakariah Husen's initial detained was in furtherance of the police investigation of the vehicle and its passengers. The police had no reasonable suspicion that any of the defendants were involved in any criminal activity. As the driver, Mr. Husen provided his name when requested and it was that response that set in motion Cst. Osborne's response and increased time for the police to look inside the vehicle. Mr. Husen was subject of a brief, lawful detention in furtherance of a valid HTA investigation. He would not have been allowed to leave until Cst. Osborne had arrived and serve him with the summons that he had been unable to serve him with earlier. The evidence was discovered while Mr. Husen was subject to a legitimate investigation. The breaches themselves, independently, and cumulatively, were minor and their impact on his Charter-protected rights does not support the exclusion of the evidence.

[62] In R. v. Harfleet 2016 ONCA 248, [2016] O.J. No. 1812 at para 47 (C.A.), the Court held that "the case law has consistently held that drivers have a reduced expectation of privacy in their vehicles: see Caslake, at para. 15; Nicolosi, at para. 9. However, a reduced expectation of privacy does not mean that an unjustified search is permissible. As stated by McLachlin C.J. in R. v. Harrison (2009 SCC 34), [2009] 2 S.C.R. 494 at para 31-32 citation added), "[a] person in the appellant's position has every expectation of being left alone - subject, as already noted, to valid highway traffic stops".

[63] While there is no special category for firearms, the Court of Appeal's comments in Wright (supra, para 17) bear repeating: "The third factor is society's interest in the adjudication of the case. Gun violence and gun possession are matters of serious concern in our society. A loaded firearm is also reliable evidence and was essential to prove the Crown's case. All of these factors favour inclusion."

[64] In Brown J.A's dissenting opinion in Omar (supra), which a majority of the Supreme Court of Canada "substantially agreed with", he wrote:

128 Although Collins puts judges into the position of acting as the reasonable person fostering "long term community values" when deciding under s. 24(2) whether to admit or exclude evidence, such as an illegal handgun, practical limits exist on the perspective judges bring to that task.

129 Why is that?

130 Because the lethal problem posed by illegal handguns often seems remote from our daily judicial lives: we tend to live in safe residential areas; and we work in highly secure courthouses. The problem may directly touch others in the community; but for most of us it is a problem only read about in the media. As a result, we judges can be tempted to conceptualize issues under 24(2) in a somewhat abstract fashion, making decisions in an environment some distance removed from that where their real-life impact will be felt.

135 …a community's desire to live free from the lethal threat of illegal handguns is not the product of a community "wrought with passion" or "otherwise under passing stress due to current events." It is a most rational desire for a necessary component of the rule of law - the existence of a safe and ordered community in which individuals have the ability to exercise their liberty rights free from fear and threat of harm to their persons. As Grant teaches, the term "administration of justice" in s. 24(2) is not limited to "the processes by which those who break the law are investigated, charged and tried", but it more broadly "embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole": at para. 67 (emphasis added).

137 I completely agree with my colleague that it is "fundamental to our social order that the police, like all other state actors, perform their duties in accordance with the law and that they respect Charter rights": at para. 55. At the same time, it is equally fundamental to our social order that Canadian citizens can walk their public streets and exercise their Charter liberty rights without finding themselves at the wrong end of an illegal handgun. In R. v. Chan, 2013 ABCA 385, 561 A.R. 347, the Alberta Court of Appeal put the matter as follows, at para. 49: "[W]e consider society's interest in the adjudication of the merits to be greater where the offence is one that so literally involves the safety of the community."

138 It is, of course, a matter of balance under s. 24(2). But the balance necessary to offer Canadians a peaceful community in which to live is not achieved by neutering the third Grant factor and treating illegal handguns as fungible with any other kind of evidence for the purposes of a s. 24(2) analysis.

[65] Balancing the seriousness of the Charter-infringing state conduct, the impact on the Charter-protected interests of the accused, and society's interest in an adjudication on the merits, I am satisfied that the admission of the firearm into evidence would not bring the administration of justice into disrepute.

Conclusion

[66] The evidence against Riyah Hamidu and Elias Farah is excluded; consequently, the charges against them are dismissed. The evidence of the firearm is admitted into evidence against Zakariah Husen.

Released: March 9, 2020

Signed: Justice J. Bliss