ONTARIO COURT OF JUSTICE

CITATION: R. v. Glasgow-Oliver, 2022 ONCJ 72

DATE: February 23, 2022

BETWEEN:

HER MAJESTY THE QUEEN

• AND -

MAURICE GLASGOW-OLIVER & KEVIN GLASGOW

Before Justice John North

Reasons for Judgment released February 23, 2022

Ms. A. Serban............................................................................................ counsel for the Crown

Ms. R. Gadhia.................................................................... counsel for Maurice Glasgow-Oliver

Mr. T. Kirichenko.............................................................................. counsel for Kevin Glasgow

NORTH J.:

INTRODUCTION

[1] On April 6, 2019, officers with the Toronto Police Service found a loaded handgun inside a black Mercedes Benz sedan which was located in an underground public parking garage in the Entertainment District of Toronto.

[2] The Crown alleges that the handgun was inside a satchel that police found in the foot well of the front driver’s seat area.

[3] Shortly before the handgun was found, Maurice Glasgow-Oliver was arrested for an outstanding warrant. At the time he was arrested, he was less than 20 feet from the black Mercedes. Physical force was used by the police officers during Mr. Glasgow-Oliver’s arrest.

[4] After the handgun was found, Mr. Glasgow-Oliver was re-arrested for the offence of unlawful possession of a loaded firearm.

[5] As the police were attempting to arrest Mr. Glasgow-Oliver, Kevin Glasgow was detained by the police. At the time, according to the police, Kevin Glasgow was “half-in and half-out” of the open front passenger door of the black Mercedes. He was arrested shortly after the police found the handgun in the car for the offence of unlawful possession of a loaded firearm. During a level three search of Kevin Glasgow that was conducted at the 52 Division station, officers found a knife in his underwear.

[6] At the beginning of the trial, Mr. Glasgow-Oliver was arraigned on six firearm counts. Kevin Glasgow was arraigned on five firearm counts and one count of carrying a concealed weapon (the knife). During closing submissions, Ms. Serban, on behalf of the Crown, invited the Court to acquit Kevin Glasgow on the five firearm counts.

[7] The matter proceeded before me as a blended trial/Charter application. The Crown called ten witnesses. Ms. Gadhia called three witnesses, one of whom was Mr. Glasgow-Oliver. Mr. Glasgow-Oliver’s testimony applied to both the Charter application and the trial proper.

[8] Kevin Glasgow called no evidence.

[9] The circumstances leading up to the discovery of the handgun and what followed are in dispute.

[10] Credibility and reliability are important issues in this case. On behalf of Mr. Glasgow-Oliver, Ms. Gadhia argued that most of the Crown’s witnesses were not credible or reliable. Ms. Gadhia asserted that the Court should accept the evidence of Mr. Glasgow-Oliver. Ms. Serban argued that the police officers should be believed, and took the position that Mr. Glasgow-Oliver was not a credible or reliable witness.

[11] On the Charter application, Ms. Gadhia argued that Mr. Glasgow-Oliver’s rights under ss. 7, 8 and 10(b) had been infringed. More specifically, Ms. Gadhia argued that Mr. Glasgow-Oliver’s Charter rights had been violated as a result of the following:

(i) The police failed to preserve and disclose video recordings from CCTV cameras located inside the parking garage and on the street just outside the garage, which resulted in a violation of s. 7 of the Charter.

(ii) While conceding that the arrest of Mr. Glasgow-Oliver on the basis of an arrest warrant was legal, it was argued that the investigation which led to the discovery of the arrest warrant was the product of racial profiling.

(iii) Related to the racial profiling claim, it was argued that prior to Mr. Glasgow-Oliver’s arrest, there was no lawful basis for the police to run the licence plate on the black Mercedes or conduct a CPIC check on Mr. Glasgow-Oliver.

(iv) The police used excessive force in arresting Mr. Glasgow-Oliver.

(v) There was no lawful basis for the police to search the satchel which contained the handgun.

(vi) The police violated Mr. Glasgow-Oliver’s right to consult counsel without delay.

(vii) The police violated Mr. Glasgow-Oliver’s s. 10(b) rights by attempting to elicit inculpatory evidence from him before he was given an opportunity to speak with counsel.

[12] Ms. Gadhia argued that the appropriate remedy for the police failing to preserve and disclose relevant evidence was a stay of proceedings pursuant to s. 24(1). Alternatively, Ms. Gadhia argued that all of the evidence seized by the police (including the handgun) should be excluded under s. 24(2).

[13] Ms. Serban conceded that Mr. Glasgow-Oliver’s rights under s. 10(b) had been violated, as the police failed to provide him with an opportunity to speak to a lawyer without delay. Ms. Serban also acknowledged that the police failed to preserve and disclose the full video taken on April 6, 2019 by CCTV cameras on 8 Charlotte Street, which is across the street from the ramp to the parking garage. Ms. Serban argued that there had been no other Charter violations. Ms. Serban also argued that the Court should not enter a stay of proceedings or exclude any evidence.

[14] On behalf of Kevin Glasgow, Mr. Kirichenko adopted the Charter arguments made by Ms. Gadhia. Mr. Kirichenko also argued that the police did not have a lawful basis to detain Kevin Glasgow (beyond a brief initial detention) or arrest him. It was argued that the level three search of Kevin Glasgow, during which a knife was found in his underwear, violated his s. 8 rights. Mr. Kirichenko argued that the knife should be excluded under s. 24(2).

[15] Ms. Serban argued that there had been no violation of Kevin Glasgow’s Charter rights, and took the position that if the Court found a Charter breach, the knife should not be excluded.

[16] On the trial proper, Ms. Gadhia argued that the Crown failed to establish, beyond a reasonable doubt, that Mr. Glasgow-Oliver was in possession of the handgun. Ms. Serban argued that the only reasonable inference was that Mr. Glasgow-Oliver was in possession of the handgun.

[17] For the purposes of these reasons, it is not necessary to conduct a detailed review of the evidence of each witness. Instead, I will review some of the evidence regarding what occurred in the parking garage. I will then set out some of my factual findings. As I address specific issues raised by the parties, I will refer to additional evidence and make some additional factual findings.

[18] My reasons are set out under the following headings:

A) Overview of the Witnesses’ Evidence

B) Credibility and Reliability

C) Factual Findings

D) Failure to Secure Video Recordings and the Lost Evidence Application

E) Racial Profiling

F) Licence Plate and CPIC Inquiries

G) Excessive Force

H) Search of the Satchel

I) Section 10(b)

J) Section 24(2) (Mr. Glasgow-Oliver’s Application)

K) Kevin Glasgow’s Charter Application

L) Conclusion

A) OVERVIEW OF THE WITNESSES’ EVIDENCE

Crown Witnesses

[19] Shortly after midnight on April 6, 2019, two uniformed officers with the Toronto Police Service, Officers Ryan Rorabeck and Todd Cardona, were conducting regular patrol duties in a marked police vehicle. They entered an underground public parking garage at 400 King Street West. This is in the Entertainment District.

[20] Both officers were familiar with this garage. According to the officers, people often hang out in the garage, and drink alcohol or smoke before going to a nearby restaurant or bar. Officer Rorabeck testified that crowds would gather in the garage, and police officers, as part of their routine patrol, would enter the garage “just to make sure…that nothing was happening.”

[21] As the two officers entered the garage that evening, they saw a group of people who were standing near each other by one or more cars.

[22] According to the officers, their attention was drawn to one man, when he quickly ducked behind a black Mercedes sedan after he saw the police car and the officers.

[23] Both officers testified that a couple of seconds later, this man popped up and walked away from the rest of the group. According to the officers, the man quickly walked out of the garage, using a route that the officers viewed as evasive.

[24] Officers Rorabeck and Cardona testified that a few seconds later, another man followed the first man out of the garage. According to the officers, a few minutes after that the rest of the group left the garage.

[25] The officers testified that they thought that the first man’s behaviour was odd. They questioned whether this man may have a reason to avoid the police.

[26] The officers did not attempt to detain this man, or any other member of the group.

[27] Instead, after the group had left the garage, one of the officers ran the licence plate on the black Mercedes. The officers thought that there might be some connection between this vehicle and the man who had ducked behind it.

[28] As a result of this investigative check, the officers learned that on May 11, 2018, a Highway Traffic Act warning had been issued in relation to that car, and the driver at the time was Maurice Juster Glasgow-Oliver, who had a date of birth of June 12, 1991.

[29] Officer Cardona conducted a CPIC inquiry, which revealed that there was an outstanding arrest warrant for Maurice Glasgow-Oliver for the charge of robbery out of Peel Region.

[30] The officers were able to obtain three police photographs of Maurice Glasgow-Oliver that had been taken over several years. Officer Rorabeck testified that he was certain, after reviewing these photographs, that the man who had ducked behind the black Mercedes was Maurice Glasgow-Oliver.

[31] Officer Cardona called Officer Mina Girgis to tell him what he and his partner had learned.

[32] At about 12:40 a.m., Officers Girgis and Chris Cheung, both 52 Division Major Crimes Unit officers, arrived at the garage in an unmarked Dodge Caravan. Officers Girgis and Cheung were working in a plainclothes capacity.

[33] Officers Girgis and Cheung parked their vehicle in the garage, and waited for Mr. Glasgow-Oliver to return to the black Mercedes. Officers Rorabeck and Cardona left the garage. They parked their vehicle in a nearby location. Officers Girgis and Cheung were to contact Officers Rorabeck and Cardona when they saw Mr. Glasgow-Oliver in the garage. Once Officers Rorabeck and Cardona were told that Mr. Glasgow-Oliver was in the garage, they were to return to assist in the arrest.

[34] While waiting in the garage, Officer Cheung “Googled” Mr. Glasgow-Oliver’s name and found an article from a Mississauga News website, which stated that there was a warrant outstanding for Mr. Glasgow-Oliver in relation to a knife-point robbery which occurred on March 12, 2018. A photograph of Mr. Glasgow-Oliver was included in the article. Officer Cheung shared the article with the other officers.

[35] At about 2:53 a.m. to 2:55 a.m., Officers Girgis and Cheung saw two men walk into the garage. The officers did not see anyone else walking with these men. The officers identified one of the men as Mr. Glasgow-Oliver.

[36] Officer Girgis recalled that one or both of the men stopped to urinate while in the garage. Officer Cheung did not recall seeing either of the two men stop to urinate.

[37] According to both officers, as the two men got closer to the black Mercedes, the front lights on the car were activated, in a manner consistent with someone unlocking the doors remotely. Officer Cheung heard the sound of a door unlocking.

[38] Using a police radio, Officer Girgis notified Officers Rorabeck and Cardona that Mr. Glasgow-Oliver had returned to the garage. Officers Rorabeck and Cardona began to drive back to the garage.

[39] According to Officers Girgis and Cheung, Mr. Glasgow-Oliver opened the front driver-side door of the black Mercedes, got in and shut the door. The officers testified that the other man entered the vehicle through the front passenger-side door.

[40] The black Mercedes was parked with its front end out, and the back end facing a wall. Officers Girgis and Cheung testified that after the two men entered the car, the officers heard the sound of the car’s engine. They also testified that the front lights on the black Mercedes were turned on.

[41] According to Officers Cheung and Girgis, Officer Cheung quickly drove the van in the direction of the black Mercedes. The officers testified that the black Mercedes had started to move forward.

[42] According to the officers, in an effort to block the black Mercedes, Officer Cheung stopped the van about six inches in front of the car.

[43] Both officers testified that Mr. Glasgow-Oliver quickly got out of the front driver’s side door of the black Mercedes and ran around the back end of the vehicle to the passenger side of the car.

[44] The officers testified that Officer Girgis got out of the van and chased Mr. Glasgow-Oliver.

[45] Both officers testified that Officer Girgis said “Stop, police.” Officer Girgis testified that he was wearing a police-issued vest which had the word POLICE in large bright white letters on the front.

[46] Officer Girgis testified that he caught Mr. Glasgow-Oliver about 15 feet away from the passenger side of the black Mercedes.

[47] Officer Cheung testified that he got out of the van to assist Officer Girgis with the arrest.

[48] Both officers testified that Mr. Glasgow-Oliver was actively resisting their attempt to arrest him.

[49] Officer Girgis testified that he took Mr. Glasgow-Oliver to the ground. Officer Cheung testified that he and Officer Girgis took Mr. Glasgow-Oliver to the ground.

[50] Officers Cardona and Rorabeck arrived in their marked police car seconds later, and Officer Cardona assisted Officers Girgis and Cheung in arresting Mr. Glasgow-Oliver.

[51] Officers Girgis, Cardona and Cheung testified that they were required to use force to arrest Mr. Glasgow-Oliver.

[52] Officer Girgis testified that Mr. Glasgow-Oliver was kicking, pushing away his hands and reaching into his clothing. Officer Girgis said that he was concerned that Mr. Glasgow-Oliver was attempting to get a weapon. Officer Girgis testified that Mr. Glasgow-Oliver was also attempting to get to his feet. Officer Girgis testified that he punched Mr. Glasgow-Oliver less than five times and kneed him twice. He said that Mr. Glasgow-Oliver was on his stomach. According to Officer Girgis, he kept instructing Mr. Glasgow-Oliver to put his hands behind his back. Officer Girgis estimated that the struggle with Mr. Glasgow-Oliver on the ground lasted about 15 to 20 seconds. He estimated that about 60 to 90 seconds had elapsed between the time Mr. Glasgow-Oliver got out of the black Mercedes until the time he had been placed in handcuffs. Officer Girgis testified he did not see any blood on Mr. Glasgow-Oliver or on his clothing.

[53] Officer Cheung testified that Mr. Glasgow-Oliver was able to push or “buck” the officers off of him. He said that he could not get Mr. Glasgow-Oliver’s arm out from under his body. Officer Cheung testified he was concerned that Mr. Glasgow-Oliver was reaching for a weapon in the area of his waistband. According to Officer Cheung, as this was happening, the officers kept telling Mr. Glasgow-Oliver that, “this is the police” and “you’re going to be arrested”. He testified that Mr. Glasgow-Oliver was swearing, and was “very, very resistant.” Officer Cheung testified that he grabbed Mr. Glasgow-Oliver’s index and middle fingers (on his left hand) and twisted them. According to Officer Cheung, Mr. Glasgow-Oliver then allowed the officer to put Mr. Glasgow-Oliver’s hands behind his back. Mr. Glasgow-Oliver was handcuffed by Officer Cheung. Officer Cheung estimated that about 30 seconds elapsed between the time that Mr. Glasgow-Oliver began to run away from the officers to the point when Officer Girgis caught him. Officer Cheung estimated that it took about another 30 seconds to secure Mr. Glasgow-Oliver’s hands. Officer Cheung said that after Mr. Glasgow-Oliver was arrested, he saw that Mr. Glasgow-Oliver’s face was red in some places. He did not recall seeing blood on Mr. Glasgow-Oliver.

[54] Officer Cardona testified that he attempted to secure Mr. Glasgow-Oliver’s right arm, while Officer Cheung was attempting to grab the left arm. According to Officer Cardona, Mr. Glasgow-Oliver was struggling and refused to give up his hands. Officer Cardona testified that Mr. Glasgow-Oliver had tucked his right arm under his body. Officer Cardona said that he used a “knee strike” to Mr. Glasgow-Oliver’s right torso. He testified that after he did that, Mr. Glasgow-Oliver gave Officer Cardona his right hand. Officer Cardona testified that during this struggle he was concerned that Mr. Glasgow-Oliver was attempting to reach for a weapon. Officer Cardona said he only used as much force as was required to arrest Mr. Glasgow-Oliver.

[55] After Mr. Glasgow-Oliver was handcuffed, he was told that he was under arrest for a robbery that had occurred in Peel Region.

[56] According to Officer Girgis, after the officers had control of Mr. Glasgow-Oliver, he conducted a search of Mr. Glasgow-Oliver to confirm his identity and for safety reasons. Officer Girgis described this as a “frisk search” and a “pat down” of Mr. Glasgow-Oliver’s pockets. Officer Girgis testified that he could not recall if any of the other officers were searching Mr. Glasgow-Oliver at the same time. Officer Girgis testified that he seized a gold chain from Mr. Glasgow-Oliver.

[57] Officer Cardona testified that he conducted a search of Mr. Glasgow-Oliver and found a driver’s licence in the right front pocket of his jeans. The driver’s licence was in Mr. Glasgow-Oliver’s name. Officer Cardona testified that he “announced” to his fellow officers that he found identification on Mr. Glasgow-Oliver.

[58] Officer Girgis testified that after he found the necklace, he looked over at the black Mercedes. At this point, he was still on the passenger side of the car. According to Officer Girgis, both front doors on the car were open. Officer Girgis testified that he saw a satchel sitting on the floor of the driver’s seat.

[59] Officer Girgis testified that he went to the driver’s side of the car “because the Mercedes was wide open and the car was still running” and because he saw the satchel. Officer Girgis said that Officers Cheung and Cardona had custody of Mr. Glasgow-Oliver.

[60] When asked by Crown counsel what he did when he saw the satchel, Officer Girgis replied as follows:

“Well, knowing that satchels typically carry personal belongings like wallets, cell phones, glasses, medications, all that kind of stuff goes into a satchel. I picked it up to see inside, see if we can confirm Mr. Glasgow-Oliver’s I.D., and I noticed, and then as soon as I opened it, the zipper was open, as soon as I looked inside the satchel I observed a firearm.”

[61] Officer Girgis testified that when he found the handgun he notified the other officers who were at the scene.

[62] Officer Cardona testified that he had announced to his fellow officers that he found Mr. Glasgow-Oliver’s identification before he heard that Officer Girgis had located a firearm. Officer Girgis testified that he had not heard Officer Cardona state that he found Mr. Glasgow-Oliver’s identification before he found the handgun.

[63] Officer Rorabeck testified that he got out the police car after Officer Cardona. He immediately went to a man who was standing at the front passenger-side door of the black Mercedes. Officer Rorabeck testified that this man did not run or take any other evasive action. Officer Rorabeck told the man not to move and “took physical control” of him. Officer Rorabeck explained that he detained this man for two reasons: (i) for officer safety; and (ii) to identify who he was and determine if he had “any sort of involvement with the wanted party, or wanted matter.” According to Officer Rorabeck, all of this occurred before Officer Girgis stated that he found a handgun in the car. The man who Officer Rorabeck detained was Kevin Glasgow.

[64] At approximately 3:00 a.m., Mr. Glasgow-Oliver and Kevin Glasgow were placed under arrest for unauthorized possession of a loaded firearm.

[65] An in-car police camera shows that Mr. Glasgow-Oliver was advised of his rights to counsel and cautioned. At that time, he said that he wanted to speak to his lawyer, Roots Gadhia.

Mr. Glasgow-Oliver’s Evidence

[66] Mr. Glasgow-Oliver testified that on April 6, 2019, he made plans to go out with some people to celebrate a friend’s birthday. He said they agreed to meet each other in the parking garage at 400 King Street West.

[67] Mr. Glasgow-Oliver arrived at the garage shortly after midnight. He was driving a black Mercedes that was owned by his child’s mother. Kevin Glasgow, his cousin, was in the car with him.

[68] Mr. Glasgow-Oliver testified that he parked the black Mercedes by backing it into a parking space. He testified that the back end of the car was about a foot from the wall. Mr. Glasgow-Oliver testified that he knew this because the car had a sensor that would beep when an object was about a foot from the back end of the car. He also testified that he had a specific memory of parking the car about a foot from the wall.

[69] Mr. Glasgow-Oliver testified that members of his group arrived at the same time in four vehicles. According to Mr. Glasgow-Oliver, there were seven people in this group – five men and two women.

[70] Mr. Glasgow Oliver testified that he and other members of this group got out of their vehicles and smoked cigarettes around their cars. After a few minutes, someone in this group mentioned that a police car was in the garage. Mr. Glasgow-Oliver testified that he and the other members of his group finished smoking their cigarettes and, as a group, walked out of the garage together. He said the group walked “steps behind” him as they walked up the ramp and out of the garage.

[71] Mr. Glasgow-Oliver denied that he attempted to leave the garage quickly after seeing the police car.

[72] Mr. Glasgow-Oliver testified that they walked to a nearby nightclub. According to Mr. Glasgow-Oliver, he had two drinks while in he was in the nightclub. He remained in the club for about 2 ½ hours. He recalled leaving the nightclub at around 2:50 a.m. Some of the people in his group had already gone home.

[73] Mr. Glasgow-Oliver testified that when he about to leave the nightclub, he was with Kevin Glasgow and two women from the original group. According to Mr. Glasgow-Oliver, he and Kevin Glasgow had to use the washroom, and the two women walked towards the parking garage ahead of the men. Mr. Glasgow-Oliver testified that he and Kevin Glasgow caught up to the women in the garage.

[74] After entering the garage, he remotely unlocked the doors to the black Mercedes. He said that the two women had parked their car by a kiosk. Mr. Glasgow-Oliver testified that he walked towards the women’s car and Kevin walked towards the black Mercedes.

[75] According to Mr. Glasgow-Oliver, he was trying to “set up a date” with one of the women. Her name was Shauna. He said that he talked to Shauna by the women’s car for about a minute. After that, he walked back to the black Mercedes. Mr. Glasgow-Oliver testified that, as he was walking to the black Mercedes, he continued to talk to Shauna.

[76] According to Mr. Glasgow-Oliver, as he was walking to his car he heard “tires screeching”. He testified that he looked up and saw that a van was “racing” at him. Mr. Glasgow-Oliver testified that the van ended up “basically nose to nose” with the black Mercedes.

[77] Mr. Glasgow-Oliver testified that he raised his hands over his head, pivoted towards the passenger side of the black Mercedes to get out of the way.

[78] He testified that a white man jumped out of the passenger side of the van and ran at him. According to Mr. Glasgow-Oliver, the man who ran towards him was wearing a black coat, not a police vest. Mr. Glasgow-Oliver testified that he took two steps and then he “went down.”

[79] He testified that he fell to the ground around the area where the back of the Mercedes was depicted in the SOCO photos. He said that at the time he did not know who had tackled him.

[80] According to Mr. Glasgow-Oliver, when he was tackled, his “face busts off the ground.” He testified that he was on his stomach with his arms down. He said that everything happened very fast. He remembered getting “hit”, “kneed” and “punched”.

[81] Mr. Glasgow-Oliver testified that someone grabbed his finger and twisted it. He said that the left side of his face was against the concrete. According to Mr. Glasgow-Oliver, at that point he was “half out of it” and a “little discombobulated.”

[82] During his testimony, Mr. Glasgow-Oliver pointed to a stain on the ground by the back passenger-side tire of the black Mercedes, as shown in a photograph that was made an exhibit. Mr. Glasgow-Oliver testified that was where his head was when he was tackled.

[83] Mr. Glasgow-Oliver said that he heard some women screaming at the officers to stop beating him. He testified that he heard officers tell people to stand back and put their cell phones away.

[84] Mr. Glasgow-Oliver testified that police officers brought him to his knees and held him there. He said that one of the officers wiped his face with a wet wipe or a napkin. He said he saw blood on the wet wipe or napkin. He could not recall which officer did this.

[85] According to Mr. Glasgow-Oliver, he did not resist or fight back against the officers. He testified that he did not know that they were police officers until he was brought to his knees. He said that he did not hear anyone say “police” before he was tackled or while he was being beaten.

[86] In an affidavit filed on the Charter application, Mr. Glasgow-Oliver stated that one of the police officer officers went through his pockets and took his driver’s licence and the keys to the black Mercedes.

[87] Mr. Glasgow-Oliver testified that the officers stood him up and took him to the wall immediately behind the black Mercedes. According to Mr. Glasgow-Oliver, Kevin Glasgow was also next to the same wall.

[88] Mr. Glasgow-Oliver testified that while he was by the wall, he was facing the interior of the garage. He testified that he saw a police officer search inside the black Mercedes.

[89] According to Mr. Glasgow-Oliver, this officer first searched the passenger side of the vehicle. He testified that the officer then went to the trunk and opened it. Mr. Glasgow-Oliver said that when the officer searched the trunk, there was just enough room for the officer to squeeze through to access the trunk. Mr. Glasgow-Oliver said that the officer looked around the trunk and then closed it. After that, according to Mr. Glasgow-Oliver, the officer went to the driver’s side of the car and searched that side of the vehicle. He estimated that the officer searched the car “definitely” for a couple of minutes. Mr. Glasgow-Oliver suggested that the officer could have searched the vehicle for as long as five minutes.

[90] Mr. Glasgow-Oliver testified that while he was by the wall, he was told by a police officer that he was under arrest for robbery and he had a right to speak to a lawyer. He gave the officer the name of his lawyer, Roots Gadhia. The officer told him that the police would call his lawyer. Mr. Glasgow-Oliver testified that he was not told that he did not have to say anything to the police.

[91] Mr. Glasgow-Oliver testified that he was kept by the wall for about five minutes. Mr. Glasgow-Oliver was then placed into the back of a police car.

[92] Mr. Glasgow-Oliver said that when he was in the police car he was again asked for the name of his lawyer and he said “Roots Gadhia.” He was not given an opportunity to speak with a lawyer while he was in the garage.

B) CREDIBILITY AND RELIABILITY

[93] Credibility and reliability are different concepts. Credibility has to do with a witness’s veracity. When assessing credibility, a court must decide whether a witness was being honest when he or she testified. Reliability has to do with “the accuracy of the witness’s testimony”: R. v. H.C., 2009 ONCA 56, at para. 41.

[94] There is no specific formula involved in the assessment of credibility or reliability. A court can take into account many factors. Some of those factors include the internal consistency of a witness’s evidence, its consistency with other evidence, whether the witness has a reason to give evidence that is more favourable to one side than to the other, whether the witness seemed to have a good memory and whether the witness had a good opportunity to make accurate and complete observations.

[95] A prior criminal record “is a fact which, to some extent at least, bears upon the credibility of a witness”: R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 SCR 670, at para. 22. However, “the mere fact that a witness was previously convicted of an offence does not mean that he or she necessarily should not be believed, but it is a fact which a jury might take into account in assessing credibility”: Corbett, at para. 22.

[96] The fact that an individual “has been convicted of any criminal offence is relevant to his trustworthiness as a witness, but the probative value of this evidence will vary in accordance with the circumstances of the particular case”: R. v. Murray (1997), 1997 CanLII 1090 (ON CA), 115 CCC (3d) 225 (Ont. C.A.), at para. 9; R. v. Pascal, 2020 ONCA 287, at para. 108; R. v. Brown (1978), 38 CCC (2d) 340, at p. 342.

[97] I have taken into account Mr. Glasgow-Oliver’s criminal record in assessing his credibility. His criminal record as an adult includes the following entries:

• In 2011, he was convicted of failing to comply with the conditions of an undertaking, and he received a 10-day custodial sentence.
• In 2011, he was convicted of failing to attend court, and was sentenced to a $150 fine.
• In 2013, he was convicted of assault causing bodily harm, and was sentenced to a six-month custodial sentence. The court also imposed a 10-year weapons prohibition order under s. 109 of the Criminal Code.
• In 2013, he was convicted of several offences, including dangerous operation of a motor vehicle, flight while pursued by a peace officer and failing to comply with a condition of a recognizance. He was sentenced to a 23-day custodial sentence, in addition to credit for 57 days of pre-sentence custody.

[98] In considering the weight to be given to Mr. Glasgow Oliver’s criminal record in assessing his credibility as a witness, I have taken into account the number and nature of the offences, and the fact that there has been a significant gap between his last conviction and this trial.

[99] In this case, Ms. Serban argued that the evidence of the police officers and Mr. Glasgow-Oliver are so different that they are mutually exclusive.

[100] I agree that the testimony of the police officers and Mr. Glasgow-Oliver is, on most matters of significance, fundamentally different.

[101] Of course, a trier of fact can accept all, some or none of the evidence of any witness.

[102] In this case, some aspects of Mr. Glasgow-Oliver’s evidence were internally inconsistent. Some parts of the officers’ evidence were not consistent with each other. The importance of each of these inconsistencies must be considered in context and together with all the other evidence.

[103] For reasons which I will explain, I have not accepted significant parts of Mr. Glasgow-Oliver’s evidence. However, I have accepted some of his evidence.

[104] Further, for reasons which I will explain, I have accepted much of the evidence of the police officers. However, I have not accepted all of it.

[105] In my view, the officers’ evidence about what occurred until Mr. Glasgow-Oliver was handcuffed and arrested was not undermined in a meaningful way during cross-examination. Their account made sense. Their evidence was internally and externally consistent on matters that I view as significant.

[106] On the other hand, I did not find Mr. Glasgow-Oliver’s testimony credible or reliable in relation to what he said occurred up to the point he was placed in handcuffs. At times, certain parts of his testimony significantly shifted.

[107] In Mr. Glasgow-Oliver’s affidavit, he stated, “I along with Kevin and two females made our way back down via the ramp to the underground garage.” In cross-examination, Mr. Glasgow-Oliver stated that he and Kevin Glasgow could be seen on one of the 8 Charlotte Street CCTV videos walking down the ramp and into the parking garage at 2:53.05 a.m. Mr. Glasgow-Oliver agreed that this video does not show any women walking with them. He testified that he just remembered meeting up with the women in the garage. Mr. Glasgow-Oliver later said that he did not think the two men in the video at 2:53.05 a.m. were Kevin Glasgow and him, because he remembers walking down the ramp with the women.

[108] In Mr. Glasgow-Oliver’s affidavit, he never mentioned that after entering the parking garage just before 3:00 a.m. he walked to another car and spoke to someone before walking to the black Mercedes. His testimony that he walked to another car and spoke to Shauna before walking to the black Mercedes was an important part of his viva voce account of what occurred immediately before the van drove towards him. This is information that I would have expected to have been included in the affidavit. I view this as an omission that is relevant to Mr. Glasgow-Oliver’s credibility and the reliability of his evidence.

[109] As previously mentioned, at one point during Mr. Glasgow-Oliver’s testimony, he identified two people who were seen on a CCTV video walking down the ramp into the parking garage at 2:53.05 a.m. as himself and Kevin Glasgow. In cross-examination, Crown counsel played another 8 Charlotte Street CCTV video, described by Officer Wendy Chang as “boys leaving”. This video shows two people walking up the ramp of the parking garage at 12:14.31 a.m. In cross-examination, Mr. Glasgow-Oliver would not agree that the two people walking up the ramp at 12:14.31 a.m. appear to be the same two people who were seen walking down the ramp at 2:53.05 a.m. The people in each of the videos appear to be wearing the same clothing. In my view, they appear to be same people. Mr. Glasgow-Oliver’s refusal to acknowledge that the two people in the “boys leaving” video appear to be the same people who were seen walking down the ramp to the garage at 2:53 a.m. is relevant in assessing his credibility.

[110] Officers Rorabeck and Cardona placed a radio call about the group they saw in the garage at 12:14 a.m. Again, according to the timestamp on the “boys leaving” video, two people walked up the ramp and out of the garage at 12:14.31 a.m. This video does not show a group of people walking up the ramp together. In my view, this video corroborates the testimony of Officer Rorabeck and Officer Cardona that the person they later identified as Maurice Glasgow-Oliver exited the garage almost immediately after he saw the police car and that he was followed by one man. According to the officers, Mr. Glasgow-Oliver was not with a group of people at that time.

C) FACTUAL FINDINGS

[111] I will now set out some of my factual findings in relation to what occurred up to the point when Mr. Glasgow-Oliver was arrested and handcuffed:

• I accept the testimony of Officers Rorabeck and Cardona regarding what occurred when they first entered the garage shortly after midnight. I find that Mr. Glasgow-Oliver ducked down when he saw the police officers and then immediately walked away, in the manner described by Officers Rorabeck and Cardona. I reject the evidence of Mr. Glasgow-Oliver on this issue.
• I find that by ducking down and quickly walking away, Mr. Glasgow-Oliver caught the attention of the two officers.
• It is reasonable to infer that Mr. Glasgow-Oliver reacted that way because he was trying to avoid the police. At the time, there was an outstanding arrest warrant for Mr. Glasgow-Oliver.
• I accept the evidence of Officers Rorabeck and Cardona that Mr. Glasgow-Oliver walked away by himself and was followed by another man, later identified as Kevin Glasgow. I do not accept Mr. Glasgow-Oliver’s evidence that he walked out of the garage with a group of people.
• I accept the evidence of Officers Rorabeck, Cardona, Cheung and Girgis about the actions they took between the time Mr. Glasgow-Oliver walked out of the garage until he returned. I accept that the officers had a reasonable basis to conclude that there was an outstanding arrest warrant for Mr. Glasgow-Oliver. I accept that they had reason to believe that Mr. Glasgow-Oliver was wanted by Peel Police in relation to a robbery involving a knife. I accept that the officers had reviewed a Mississauga News article about this alleged robbery.
• I have concluded that Mr. Glasgow-Oliver and Kevin Glasgow returned to the garage shortly before 3:00 a.m. There were no other persons with them.
• I accept that there was a reasonable basis for Officers Girgis and Cheung to conclude that when Mr. Glasgow-Oliver returned to the garage shortly before 3:00 a.m. that he was, in fact, the person who was the subject of the arrest warrant.
• I do not accept the suggestion that the police moved the black Mercedes several feet forward shortly after Mr. Glasgow-Oliver was arrested. The defence suggested that, as Mr. Glasgow-Oliver parked the black Mercedes within about a foot of the wall, it would not have been possible for him and Officer Girgis to run behind the car. I have found that there was enough room behind the black Mercedes for Mr. Glasgow-Oliver and Officer Girgis to run behind the vehicle. I accept the evidence of the police officers that they did not move the black Mercedes shortly after Mr. Glasgow-Oliver was arrested. During the cross-examination of Mr. Glasgow-Oliver, Crown counsel played an in-car camera video from 2:59.22 a.m. to 2:59.46 a.m. This was just a few minutes after Mr. Glasgow-Oliver and Kevin Glasgow had been arrested. In this video, Officer Girgis can be seen walking behind the black Mercedes. There was clearly enough room for him to walk behind this car. In my view, based on all of the evidence, there was no reasonable opportunity before 2:59.22 a.m. for the police to have moved the Mercedes. Mr. Glasgow-Oliver testified that he was very close to the black Mercedes shortly after he was arrested. Mr. Glasgow-Oliver did not claim that he saw anyone move the vehicle forward. When this was put to him by Crown counsel, Mr. Glasgow-Oliver said that he was hurt and dazed at the time. Ms. Serban suggested to Mr. Glasgow-Oliver that the black Mercedes was in the same location at 2:59.46 a.m., as depicted in the in-car camera, as it was when he was arrested two or three minutes earlier. Mr. Glasgow-Oliver responded, “I thought that it was back further to be honest.” He later stated he could not “say 100%” whether the black Mercedes had been moved by 2:59.46 a.m. Again, I do not accept that the police moved this vehicle forward after Mr. Glasgow-Oliver was arrested.
• I do not believe Mr. Glasgow-Oliver’s testimony that he was outside the black Mercedes when the police van drove forward.
• I do not accept Mr. Glasgow-Oliver’s testimony that he was in front of the Mercedes when the van stopped.
• I find that Mr. Glasgow-Oliver got into the black Mercedes after returning from the nightclub.
• I accept the evidence of Officers Girgis and Cheung who testified that Mr. Glasgow-Oliver got into the driver’s seat of the black Mercedes and turned the engine on, seconds before the police officers blocked in the vehicle with their van.
• I accept that Mr. Glasgow-Oliver drove the black Mercedes forward a few feet before it was blocked in by the police van.
• I accept that the front end of the police van stopped less than a foot from the front end of the black Mercedes.
• I accept the evidence of Officers Girgis and Cheung that Mr. Glasgow-Oliver got out of the black Mercedes when the police van blocked the car, and he ran behind the car.
• I accept Officer Girgis’ evidence that he shouted “police” at Mr. Glasgow-Oliver.
• I do not accept Mr. Glasgow-Oliver’s evidence that he did not know that he was dealing with police officers when they were attempting to arrest him. I find that, prior to being taken to the ground, Mr. Glasgow-Oliver knew that Officers Girgis and Cheung were police officers.
• I accept the officers’ evidence regarding where the struggle with Mr. Glasgow-Oliver occurred.

D) FAILURE TO SECURE VIDEO RECORDINGS AND THE LOST EVIDENCE APPLICATION

Introduction

[112] Mr. Glasgow-Oliver brought an application for a stay of proceedings under s. 24(1) of the Charter based on the failure of the police to secure video recordings from CCTV cameras located in the parking garage at 400 King Street West.

[113] Ms. Serban argued that the evidence established that this footage never existed, as these CCTV cameras were not working on April 6, 2019.

[114] Ms. Gadhia also argued that the failure of the police to preserve and disclose the full video recordings from the 8 Charlotte Street CCTV cameras violated his rights under s. 7 of the Charter.

[115] Ms. Serban acknowledged the police had, and subsequently lost, the full video recordings from the 8 Charlotte Street CCTV cameras. Ms. Serban also acknowledged that the full video from the 8 Charlotte Street CCTV cameras should have been disclosed, and that defence had suffered actual prejudice as a result of the police losing these recordings. However, Ms. Serban argued that a stay of proceedings would not be an appropriate remedy. Instead, Ms. Serban argued that the appropriate remedy would be a reduction in sentence.

[116] Mr. Gadhia argued that if the court does not agree that a stay of proceedings is the appropriate remedy, then the evidence seized by the police should be excluded under s. 24(2) of the Charter.

[117] In order to properly assess these arguments, it is necessary to consider the evidence of Officer Wendy Chang.

Officer Wendy Chang

[118] Wendy Chang has been a police officer with the Toronto Police Service for 10 years. In April, 2019 she was a detective constable with the Major Crimes Unit at 52 Division.

[119] Officer Chang was the “case manager” of this investigation.

[120] Officer Chang testified that as the case manager she was responsible for seeing “the case through to the court process and gathering what disclosure is necessary until that point.”

CCTV Cameras in the Parking Garage at 400 King Street West

[121] Officer Chang testified that she attempted to secure video recordings from the CCTV cameras located in the parking garage at 400 King Street West.

[122] During her examination-in-chief, Officer Chang testified that on April 7, 2019, “we” went to the garage at 400 King Street West and spoke to a parking attendant who was employed by ProPark. Officer Chang did not mention attending 400 King Street West on April 7, 2019 in her notes. When asked by Crown counsel for the name of the officer who accompanied her that day, she could not recall. During cross-examination, Officer Chang testified that she could have gone to 400 King Street West by herself, and not with another officer. She added, “I do tend to use, ‘we’, when I speak about the police...”.

[123] Officer Chang testified that the ProPark attendant told her that ProPark just rents the space, and was not responsible for the building.

[124] Officer Chang testified that since Mountain Equipment Co-op (MEC) was “leasing in the area of the building”, she went to the MEC store on April 7, 2019 and spoke with a MEC employee who provided her the name of another MEC employee (“Placido”) who was an “IT guy.” According to Officer Chang, between April 7th and April 16th, she and Placido “played phone tag”. Officer Chang made no notes to indicate that she did that.

[125] Officer Chang testified that Placido told her that the hard drives for the cameras in the parking garage had been “removed” and they could not find them. MEC was in the process of moving their store on King Street to a different location. Officer Chang’s notes did not indicate that Placido said that the hard drives had been removed. She testified that this was something she remembered him saying. According to Officer Chang, Placido told her that the “hardware to record the video was not in operation” on April 6, 2019. Officer Chang testified that she was told by Placido that she should contact Plazacorp, which managed the building.

[126] Officer Chang testified that she left multiple messages for Jordan Danzer, who she was told was a manager at Plazacorp. Officer Chang testified that on April 16, 2019, Mr. Danzer told her that he would contact a security officer to determine if there were any video recordings from the parking garage on April 6, 2019.

[127] In cross-examination, Ms. Gadhia pointed out that CCTV videos may be erased after a retention period, and asked why Officer Chang did not obtain a subpoena for the recordings. Officer Chang testified that as Plazacorp was “offering to get the video for me” she did not turn her mind to getting a subpoena.

[128] Officer Chang testified that after April 16, 2019, she made multiple calls to Mr. Danzer, but he was “was not very good” about responding to her messages. Officer Chang testified that she was “extremely annoyed with him because he gave me the short shrift all the time.” Officer Chang did not make any notes of the steps she took to contact Mr. Danzer during this period. When asked why she did not make any notes about this, she said she did not have a reason and described it as “a mistake on my part.”

[129] Officer Chang testified that on July 16, 2019, she and Officer Antranik Ghazarian went to a Plazacorp office in Toronto to obtain the video recordings. Officer Chang testified that they spoke to “a female who was at the front desk area” of the Plazacorp office. According to Officer Chang, this woman told them that no video existed. Officer Chang testified that the woman who worked at the front desk:

“…got us to a manager and the manager said that they would contact somebody to make – to give us an official letter stating the fact that no cameras [sic] existed for this.”

[130] Officer Ghazarian testified that on July 17, 2019, he received an e-mail with an attachment. The attachment was a letter from a lawyer employed by Plazacorp. The letter stated as follows:

“In regard to your inquiry regarding the underground parking garage at 400 King Street West.

The video camera system is not in operation and therefore no video footage is available.”

[131] Officer Chang testified that after she received this letter she took no further steps to secure video recordings from the garage at 400 King Street West because they “didn’t exist.”

CCTV Recordings from 8 Charlotte Street

[132] Officer Chang testified that she obtained CCTV video footage from 8 Charlotte Street. CCTV cameras at this location face the ramp to the underground parking garage at 400 King Street West. Officer Chang testified that it was believed that this footage would show the “vehicle in question entering…the garage.”

[133] Officer Chang testified that on April 8, 2019, she secured video footage from 8 Charlotte Street. She was not certain about the number of cameras that were used to create the footage.

[134] Officer Chang testified that she was not certain of the total length of the video recordings from 8 Charlotte Street, but stated it would have been at least three hours – from 12:00 a.m. to 3:00 a.m. She testified that she normally obtains surveillance videos half an hour before and after an event, although she had no notes about what she obtained in this case.

[135] She testified that when she watched the approximately three hours of videos from April 6, 2019, she saw many people enter and exit the garage. Officer Chang testified that after obtaining the video footage, she “watched for the moments when they [the two accused] came and left, and put that into the disclosure.”

[136] Officer Chang testified that she “dragged and dropped” the relevant parts of the video to a DVD, which was prepared for disclosure purposes. She testified that she only included the parts of the footage that she believed were relevant. Officer Chang testified that she only included what she thought was relevant evidence on the DVD because she thought that was “most helpful to everybody involved.”

[137] Officer Chang included five video-clips on the DVD. She testified that she believed the relevant parts video were when the two accused “came and left” the garage at 400 King Street West. Officer Chang explained as follows:

“The disclosure was sort of large to fit on a DVD and, and again, I thought that those were the only parts that were relevant, any – anything anybody would want to see.”

[138] When asked why she did not disclose other parts of the CCTV footage, Officer Chang testified that:

“…they [Maurice Glasgow-Oliver and Kevin Glasgow] weren’t on camera at any other point, so to me, it didn’t – I didn’t feel that anybody needed to watch a bunch of empty footage with nothing happening.”

[139] The total length of the video clips that Officer Chang disclosed was about five minutes.

[140] Officer Chang testified that she sent the DVD to be “processed for disclosure” on April 8, 2019.

[141] During examination-in-chief, Officer Chang was asked what happened to the “whole video from Charlotte Street”. She testified that she was “not able to find the raw video.” She testified that while she would not have erased any of the recordings, she did not save this footage on her computer. Officer Chang suggested that “the fob [containing the full video] may have been misplaced.” According to Officer Chang, she looked “very hard” for the fob but was unable to find it.

[142] Officer Chang recalled that she first received a request for the full video “within the last two months.”

[143] Officer Chang testified that her “approach to collecting and disclosing surveillance footage evidence” has changed since March, 2019. She stated that she now realizes that she “probably shouldn’t cut the video.” Officer Chang testified that she would now “disclose the whole three-hour video” to “give the appearance of equal, frank and fairness with all of the evidence.”

[144] In cross-examination, Officer Chang, was asked whether she knew that there’s “a case called Stinchombe that says that the defence is entitled to the disclosure that is in the possession of the police.” Officer Chang responded, “No, I don’t – I’ve never heard of Stinchombe.” Ms. Gadhia asked whether Officer Chang was familiar with the disclosure obligations that the Supreme Court set out in Stinchombe, and Officer Chang replied:

“…I thought I was doing what was best, clearly it’s wrong and I am – that’s, that’s what it is.”

[145] Officer Chang testified that she now understands she should have disclosed the entire three-hour video, and added “I was wrong, I’ve now learned my lesson.”

[146] Officer Chang agreed with Ms. Gadhia’s suggestion that it was not her role to decide what disclosure might be helpful to the defence.

[147] During examination-in-chief, Ms. Serban played some of the five video-clips from 8 Charlotte Street that were disclosed to the defence. Each of the video-clips had timestamps. When asked by Ms. Gadhia whether she confirmed that the “timestamp on the videos that you received accorded with the timestamp in real life”, Officer Chang responded, “I believe I did. I, I would have.” She later testified that this is something that she “generally” does. Officer Chang did not make a note of doing that in this case.

[148] Officer Chang testified that she relied on information provided by other officers regarding what happened in the garage to decide which parts of the full video were relevant.

[149] Officer Chang did not include a video-clip of Officers Rorabeck and Cardona entering the garage. Officer Chang testified that she understood that Officers Rorabeck and Cardona were in the garage before the black Mercedes. Her understanding was not consistent with the evidence of Officers Rorabeck and Cardona.

[150] Officer Chang testified that she was aware that Officers Girgis and Cheung had entered the garage in a van. Officer Chang did not disclose a copy of a video-clip showing the van entering the garage.

Conclusion – Failure to Secure CCTV Recordings from 400 King Street West

[151] The evidence establishes that defence counsel made significant efforts to obtain CCTV recordings from the underground parking garage at 400 King Street West. Defence counsel sent multiple letters to the Crown requesting that the police secure video recordings from the CCTV cameras in the garage. The first letter was sent five days after Mr. Glasgow-Oliver and Kevin Glasgow were arrested. The importance of securing these recordings as quickly as possible was emphasized in these letters.

[152] Defence counsel also contacted Propark, MEC and PlazaCorp. The defence did not receive any video recordings from 400 King Street West.

[153] Ms. Gadhia argued that Officer Chang deliberately failed to obtain the CCTV recordings from 400 King Street West because they would reveal that the police account of what occurred in the garage on April 6, 2019 was inaccurate. During her submissions, Ms. Gadhia stated that Officer Chang:

“…and her team of officers ensured that Your Honour would not get all of the relevant information. This was not an ‘oops, I’m sorry’ moment, but a conscious decision to hide what happened in that garage.”

[154] Officer Chang should have been more diligent in following up in a timely manner to determine if there were any video recordings from inside the parking garage. The potential importance of these videos, if they existed, should not have escaped Officer Chang.

[155] Officer Chang failed to properly record in her notes most of the steps that she said she took to obtain these recordings.

[156] Her poor note-taking practices and failure to follow-up on potentially important matters in a timely way did not enhance her credibility or the reliability of her evidence.

[157] However, based on my assessment of all of her evidence, I do not accept that Officer Chang deliberately failed to secure relevant evidence. It is my view that Officer Chang was inattentive and sloppy, but not dishonest.

[158] I accept Officer Chang’s evidence regarding the efforts she made to determine if video recordings from the parking garage existed.

[159] It would have been helpful if the letter written by PlazaCorp’s lawyer on July 17, 2019 had been more detailed. However, based on all of the evidence, on a balance of probabilities, I am not satisfied that the CCTV cameras in the parking garage were working on April 6, 2019.

[160] Mr. Glasgow-Oliver and Kevin Glasgow’s s. 7 rights were not violated, as the video footage sought by the defence never existed.

Conclusion – Failure to Retain and Disclose the Full CCTV Video from 8 Charlotte Street

[161] I will now turn to the loss of the full video from the 8 Charlotte Street CCTV cameras.

[162] As I have already indicated, there is no question that this video existed, that it was relevant evidence in the possession of the police and it was never disclosed to the defence.

[163] In R. v. Janeiro, 2022 ONCA 118, at para. 107, the Court stated:

“Where a Charter applicant has shown that disclosable evidence has been lost, a Charter breach contrary to s. 7 will be found unless the Crown has provided a satisfactory explanation for that loss, thereby demonstrating that an abuse of process has not occurred. The Crown may do so by establishing that the evidence has not been destroyed or lost by unacceptable negligence, that is negligence that goes beyond mere negligence. This can be accomplished by showing that reasonable steps were taken in the circumstances to preserve the evidence, bearing in mind the relevance that the evidence was perceived to have at the time it was lost or destroyed.

Indeed, the relevance or importance of the evidence is an important consideration in setting the degree of care expected. As the relevance of the evidence increases, so too does the degree of care required in preserving the evidence. Similarly, as the relevance decreases, the required degree of care is reduced.” [Case citations omitted]

[164] In Janeiro, at para. 109, the Court went on to state that a Charter applicant will succeed even in the face of a satisfactory explanation for the loss or destruction of evidence if they establish that the lost evidence is so important that its loss undermines the fairness of the trial.

[165] Establishing that the loss or destruction of evidence undermines the fairness of a trial “is a difficult hurdle”: Janeiro, at para. 109. Showing a reasonable possibility that the lost evidence could have assisted the defence is not enough to establish that the right to full answer and defence has been undermined: Janeiro, at para. 109. This is so, “even though the inability to determine whether the lost evidence was harmful, neutral or helpful to the defence may arise because of the loss of the evidence by the police”: Janeiro, at para 109.

[166] In this case, it is not known whether the lost CCTV videos from 8 Charlotte Street would have assisted the defence. Therefore, it is not necessary to address this branch of the lost evidence test.

[167] Turning to the other branch of the lost evidence test, I am satisfied that the Crown has not provided a satisfactory explanation for the loss of the full CCTV video from 8 Charlotte Street.

[168] To be clear, I do not accept the suggestion that Officer Chang deliberately lost or destroyed this evidence. I accept Officer Chang’s testimony that she made a mistake. Having said that, this was a significant mistake. It was the product of Officer Chang’s failure to understand basic disclosure obligations under the Charter. There was no evidence to support the conclusion that reasonable steps were taken to preserve the full video.

[169] I have concluded that the loss of the full video from the 8 Charlotte Street CCTV cameras was the result of unacceptable negligence, not just mere negligence.

[170] I accept Officer Chang’s evidence that when she only disclosed about five minutes of the three hour video from the 8 Charlotte Street CCTV camaras, she did not appreciate that she was required to disclose the full video. While the potential relevance of this video was not clear to Officer Chang before she lost it, it should have been.

[171] This evidence was not as obviously important as some other evidence might be. However, it was still potentially important evidence. The full video could have, potentially, been used by the defence to cross-examine police officers on their accounts of what happened that morning, including when Mr. Glasgow-Oliver and Kevin Glasgow left and returned to the parking garage. The full video could have, potentially, been used to corroborate certain parts of Mr. Glasgow-Oliver’s testimony or to refresh his memory. It is also possible that the full video could have assisted the Crown.

[172] I find that the defendants’ rights under s. 7 of the Charter were infringed.

[173] Section 24(1) of the Charter provides that anyone whose rights or freedoms, as guaranteed by the Charter, have been infringed may apply to a court of competent jurisdiction to obtain such remedy as the court considers “appropriate and just in the circumstances.”

[174] A court must consider the actual prejudice caused to the defence when determining the appropriate remedy.

[175] In this case, as previously stated, the defence was potentially denied an opportunity to cross-examine police officers on their accounts of when they and other people entered and left the garage. The defence was also potentially denied evidence which might have corroborated Mr. Glasgow-Oliver’s account.

[176] In Janeiro, at para. 125, the Court stated as follows:

“A stay of proceedings is a remedy of last resort, reserved for the clearest of cases where important evidence has been deliberately destroyed, where the unacceptable negligence is extreme enough to cause irreparable harm to the integrity of the justice system, or where the accused establishes that the loss of the evidence has irreparably deprived them of evidence without which they cannot effectively present a defence.”

[177] In this case, I have concluded that the full video from the 8 Charlotte Street CCTV cameras was not deliberately destroyed. I am not satisfied that the unacceptable negligence by Officer Chang is extreme enough to cause irreparable harm to the integrity of the justice system or that the defence has been denied evidence without which it cannot effectively present a defence. I have concluded that this is not one of the clearest of cases that requires a stay of proceedings.

[178] As I will address later in these reasons, this s. 7 violation is relevant to the question of whether there has been a pattern of Charter-infringing conduct in this case.

E) RACIAL PROFILING

[179] Before dealing with the arguments made by counsel regarding the racial profiling claim, it is necessary to refer to both some additional evidence and the relevant legal principles that govern this area.

Additional Evidence

[180] According to Officer Rorabeck, when he and Officer Cardona entered the parking garage they saw a group of about seven to nine people standing around some cars on the far side of the garage.

[181] Officer Rorabeck testified that when he saw this group, he generated a police radio call at 12:14 a.m., in which he described the group as “disorderlies”. Officer Rorabeck testified that “disorderlies” is “just a general term that we use almost for a group of people and we’re going to be taking a look at them, almost.” Officer Rorabeck also testified that “disorderlies” is a “general dispatching term” that is typically used to describe a group of people:

“…maybe hanging out in an area where they’re not supposed to or we’re not sure why this group of people is there, or maybe there’s a group of people doing something they’re not supposed to.”

[182] Officer Cardona testified that a radio call is generated to let a dispatcher know where officers are located “in case someone’s looking for us, in case something were to happen.” Officer Cardona testified that, “usually when we have a large group like it goes in as a “‘disorderlies’ call.”

[183] Officers Rorabeck and Cardona agreed that they did not see any members of this group doing anything illegal or inappropriate. The officers did not know how long the group had been in the garage.

[184] The officers stopped their car in a lane, a short distance from the group. The front lights of their car were directed at the group. According to the officers, one member of the group – a young black man – looked at the officers and ducked behind a black Mercedes. A few seconds later, this man stood up and then used an “indirect route” (away from the police car) to quickly walk out of the garage.

[185] While Officer Rorabeck agreed that some people in the Black community are averse to dealing with police officers, he thought that this man’s behaviour stood out as unusual. No other member of this group reacted this way. Officer Rorabeck said it appeared that this man did not want to be seen by the police. Officer Rorabeck testified that, at the time, he wondered if “possibly this person was wanted.”

[186] Officer Cardona testified that the man’s behaviour stood out because he had:

“…never seen someone take such an evasive route and it made me feel that this person was trying not to be seen by us.”

[187] Officer Cardona said his initial thought was “why this person was avoiding us.”

[188] The officers testified that about ten seconds after the first man walked away, a second man followed the first man out of the garage. A short time later, the rest of the group “filtered” out of the garage. The officers did not attempt to talk to, stop or follow any of the members of the group.

[189] Both Officers Cardona and Rorabeck testified that they could not remember the racial composition of the members of this group, or how many in the group were men or women.

Legal Principles

[190] The term “racial profiling” was described by the Supreme Court of Canada in R. v. Le, 2019 SCC 34, at para. 76:

“[T]he concept of racial profiling is primarily concerned with the motivation of the police. It occurs when a race or racial stereotype about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or subject treatment.”

[191] Racial profiling has two components: (i) an attitudinal component; and (ii) a causation component: R. v. Dudhi, 2019 ONCA 665, at para. 54.

[192] The attitudinal component “is the acceptance by a person in authority, such as a police officer, that race or racial stereotypes are relevant in identifying the propensity to offend or be dangerous”: Dudhi, at para. 55.

[193] The causation component:

“…requires that this race-based thinking must consciously or unconsciously play a causal role. Meaning, race or the racial stereotype must motivate or influence, to any degree, decisions by persons in authority regarding suspect selection or subject treatment.”: Dudhi, at para. 55.

[194] The presence of objective grounds to detain a person does not disprove or undermine a finding of racial profiling: Dudhi, at paras. 84-85. The absence of objective grounds for detention, or the fabrication of grounds, can support an inference that a detention was racially motivated: Dudhi, at para. 85.

[195] A decision by a police officer need not be motivated solely or even mainly on race or racial stereotypes to be “based on” race or racial stereotypes. As Justice Paciocco stated in Dudhi, at para. 62:

“If illegitimate thinking about race or racial stereotypes factors into suspect selection or subject treatment, any pretence that the decision was reasonable is defeated. The decision will be contaminated by improper thinking and cannot satisfy the legal standards in place for suspect selection or subject treatment.”

[196] Racial profiling is rarely proven by direct evidence: R. v. Hector, 2021 ONSC 7543, at para. 55. Racial profiling will usually be proven by “inferences drawn from the circumstantial evidence”: Hector, at para. 55.

Positions of the Parties

[197] While Ms. Gadhia acknowledged that the arrest of Mr. Glasgow-Oliver on the strength of the warrant was legal, it was asserted that “the investigation that led to the discovery of the warrant was flawed, racially motivated and improper.” It was argued that the police “began their unfounded investigation based on racial bias” and did not have a “sufficient basis to mount an investigation.” Ms. Gadhia argued that “the moment [Mr. Glasgow-Oliver] was seen near the luxury Mercedes vehicle, officers began their unfounded investigation based on a racial bias.” Ms. Gadhia asserted that the lack of reasonable and probable grounds gives rise to a presumption that the officers’ inquiries were contrary to s. 8 of the Charter.

[198] Ms. Serban argued that the officers’ conduct did not result in any s. 8 violations. Ms. Serban argued that the facts do not support a finding of racial profiling or racial bias.

Conclusion

[199] In my view, there was evidence that could provide some support for a racial profiling claim.

[200] The officers saw Mr. Glasgow-Oliver, a young black man, standing by an expensive car. In Dudhi, at para. 79, the Court noted that “a man of colour who was driving an expensive car” is a well-known risk factor for racial profiling.

[201] The officers described the group in the garage as “disorderlies” when, objectively, there was no basis to do so. When considering the racial profiling issue, I was concerned about the characterization of the group as “disorderlies”. Again, according to Officers Rorabeck and Cardona, there is a closed category of descriptions available to officers who are making a radio call, and “disorderlies” is the description that is often used by the police when officers are about to interact with a group, even if the members of the group have, objectively, done nothing that would warrant that description.

[202] In Dudhi, at para. 79, the Court noted that, in the circumstances of that case, the fact that an officer came very close to arresting the accused before completing his inquiry into the release conditions was evidence that supported a finding that the police engaged in racial profiling.

[203] In this case, Officers Rorabeck and Cardona understood that they did not have reasonable suspicion that an offence had occurred when they first encountered Mr. Glasgow-Oliver, and did not attempt to speak with him, let alone detain him. In my view, the fact that during their initial interaction with Mr. Glasgow-Oliver the officers recognized that they did not have reasonable suspicion to detain Mr. Glasgow-Oliver or any other member of the group, and respected the limits of their authority, militates against a finding of racial profiling.

[204] Further, the officers took meaningful steps to confirm that the man who had ducked down behind the black Mercedes was Maurice Glasgow-Oliver, before they made the decision to arrest him.

[205] I did not see compelling evidence that any of the officers made statements that would support a finding that their decisions were influenced by the fact that Mr. Glasgow-Oliver is a young Black man.

[206] In my view, Mr. Glasgow-Oliver’s actions when he first saw the police officers were sufficiently unusual, and appeared to be evasive, that it was not unreasonable for the officers to have conducted some investigative checks.

[207] I accept that it was Mr. Glasgow-Oliver’s unusual behaviour that resulted in Officers Rorabeck and Cardona conducting checks on the licence plate and CPIC. Based on all of the evidence, I am not satisfied that reliance on race or racial stereotypes played a role in the decision-making of the police officers.

F) LICENCE PLATE AND CPIC INQUIRIES

[208] Going beyond the racial profiling argument, I will now consider whether there was any other basis to support an argument that Mr. Glasgow-Oliver’s s. 8 rights were violated by the police running the licence plate of the black Mercedes or conducting a CPIC check.

[209] Mr. Glasgow-Oliver had no reasonable expectation of privacy in the licence plate or in the information that the police received following the query of the licence plate. There is no evidence that Mr. Glasgow-Oliver had a subjective expectation of privacy in relation to these things.

[210] The licence plate was attached to the black Mercedes for all persons to see. Regarding the information revealed by the computer data-based checks, Mr. Glasgow-Oliver had no control over that information. He had no ability to restrict anyone’s access to that information. The car did not even belong to him.

[211] I have concluded that Mr. Glasgow-Oliver did not have a reasonable expectation of privacy in the licence plate or the information that the police obtained as a result of the check conducted by the officers in relation to the licence plate. Therefore, Mr. Glasgow-Oliver’s s. 8 Charter rights were not engaged: R. v. McGill, 2013 ONSC 5722, at paras. 11-14.

[212] Further, I see no basis to conclude that the CPIC search violated Mr. Glasgow-Oliver’s s. 8 rights. It was a legitimate step in this investigation. It did not violate Mr. Glasgow-Oliver’s reasonable expectation of privacy.

G) EXCESSIVE FORCE

[213] Ms. Gadhia argued that the police used excessive force when arresting Mr. Glasgow-Oliver.

Legal Principles

[214] The use of excessive force by the police may give rise to a violation of s. 7 of the Charter: R. v. Nasogaluak, 2010 SCC 6, [2010] 2 SCR 206.

[215] Police officers are sometimes required to use force to execute their duties. Section 25(1) of the Criminal Code “essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable grounds and used only as much force as was necessary in the circumstances”: Nasogaluak, at para. 34.

[216] An officer’s belief must be objectively reasonable and, therefore, “the use of force under s. 25(3) is to be judged on a subjective-objective basis”: Nasogaluak, at para. 34.

[217] In determining whether the amount of force used by police officers was excessive, courts will usually afford the police a degree of latitude:

“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”: Nasogaluak, at para. 35.

[218] The actions of police officers regarding the use of force should not be measured with exactitude or against a standard of perfection: Nasogaluak, at para. 35. However, “police officers do not have an unlimited right to inflict harm on a person in the course of their duties”: Nasogaluak, at para. 32. In Nasogaluak, at para. 32, Lebel J. was clear that courts must “guard against the illegitimate use of power by the police against members of our society, given its grave consequences.”

[219] The allowable degree of force that may be used by the police to complete an arrest or to prevent an offender from escaping from police custody “remains constrained by the principles of proportionality, necessity and reasonableness”: Nasogaluak, at para. 32.

[220] In deciding whether force used by a police officer was excessive, a court must “have regard to the circumstances as they existed at the time the force was used”: R. v. Bottrell (1981), 1981 CanLII 339 (BC CA), 60 CCC (2d) 211 (BCCA), at p. 218.

[221] In R. v. Walcott, 2008 CanLII 11374 (ON SC), [2008] O.J. No. 1050 (ONSC), at para. 24, Justice Brown stated that in assessing whether the police used excessive force:

“…a court must take into account all of the circumstances, including whether:

(i) the suspect was acting in a hostile manner towards the police, resisting arrest or failing to comply with an officer’s arrest procedure;

(ii) the relative sizes and weights of the officer and the suspect;

(iii) the officer was at risk of harm;

(iv) the police knew the suspect had a history which might represent a threat to them; or

(v) the police understood that weapons might be on the premises.”

Conclusion

[222] I have already stated that I accept the police officers’ account of the circumstances immediately before Mr. Glasgow-Oliver was placed in handcuffs.

[223] Mr. Glasgow-Oliver ran from the police. He actively resisted arrest in the manner described by the officers. Mr. Glasgow-Oliver would not allow the officers to secure his hands, and he appeared to be reaching into his waistband area. The officers involved in the struggle to arrest Mr. Glasgow-Oliver knew that there was an outstanding arrest warrant related to an allegation that Mr. Glasgow-Oliver had robbed a person with a knife.

[224] In my view, the officers had legitimate safety concerns when dealing with Mr. Glasgow-Oliver. The officers’ explanation as to why they were required to use force to arrest Mr. Glasgow-Oliver, and the description of the actual force they used, made sense. I accept the officers’ description of the force that they used to arrest Mr. Glasgow-Oliver.

[225] In considering this issue, it is reasonable to remember that the police officers used no force on Kevin Glasgow. Kevin Glasgow did not run from the police or resist the detention.

[226] In the affidavit filed by Mr. Glasgow-Oliver on the Charter application, he stated that after he was arrested he felt something warm dripping on his face. Mr. Glasgow-Oliver stated that a police officer wiped blood off of his face using paper towels or wipes. I have reviewed the in-car camera recording. I did not see any blood on Mr. Glasgow-Oliver’s face. In my view, there was no reasonable independent evidence to support the conclusion that Mr. Glasgow-Oliver was bleeding in the way he described.

[227] I agree with the Crown’s position that if Mr. Glasgow-Oliver had been bleeding as he described it is likely that it would have been apparent on the in-car camera and there would have been more severe injuries.

[228] While it is clear that Mr. Glasgow-Oliver suffered some bruising and abrasions as a result of the force used by the officers, I do not accept that he was bleeding as he described. I do not believe that a police officer wiped blood of Mr. Glasgow-Oliver’s face.

[229] Other than some bruising, Sergeant Cynthia Bernard, the booking sergeant at 52 Division, did not observe that Mr. Glasgow-Oliver had any injuries which required medical attention. Mr. Glasgow-Oliver was asked by Sergeant Bernard if he required medical attention and he replied, “no.”

[230] I accept the evidence of the arresting officers regarding the extent of Mr. Glasgow-Oliver’s injuries following the arrest. I do not accept Mr. Glasgow-Oliver’s evidence that a police officer “stomped” on his head.

[231] I find that the use of force by the police was proportionate and reasonable, given the situation. I find that the officers used only used as much force as was necessary to arrest Mr. Glasgow-Oliver.

[232] Mr. Glasgow-Oliver’s s. 7 rights were not violated as a result of the force used by the police in the parking garage.

H) SEARCH OF THE SATCHEL

[233] I will now address Mr. Glasgow-Oliver’s claim that his rights under s. 8 of the Charter were violated by the search of the satchel.

[234] I accept Officer Girgis’s evidence that he found the handgun in a satchel that was located in the foot well on the front driver’s side of the black Mercedes.

Evidence

[235] I have already reviewed some of the circumstances that led to the discovery of the satchel by Officer Girgis. I will now review some additional evidence that is relevant to this issue.

[236] Officer Girgis testified that after the officers had control of Mr. Glasgow-Oliver, he conducted a frisk search of Mr. Glasgow-Oliver “to confirm his identity and to search him incident to arrest of the offence, and to make sure he didn’t have any weapons or anything like that on him.” Officer Girgis testified that he did not recall finding anything on Mr. Glasgow-Oliver, other than, possibly, a gold necklace. Officer Girgis said that he could not recall whether any of the other officers were searching Mr. Glasgow-Oliver at the same time.

[237] Ms. Serban asked Officer Girgis why he searched the driver’s side area of the car, and he answered as follows:

“It was incident to arrest. I wasn’t searching the vehicle. I was grabbing, collecting the arrested party’s belongings, so I grabbed the satchel believing it would contain his belongings.”

[238] Ms. Serban asked Officer Girgis why he wanted to collect Mr. Glasgow-Oliver’s belongings at that time, and he replied as follows:

“Cause he’s under arrest and he’s going to be in our custody for some time, so – and I also wanted to confirm his identity using, by finding a wallet, and that’s it.”

[239] Ms. Serban asked Officer Girgis why he did not leave the satchel in the car, and Officer Girgis answered as follows:

“I thought it was reasonable to believe that he, being in our – that he’s going to be in our custody for some time, that he would need his personal belongings. For example, like if he were to be released, he would need money or a credit card, or whatever to get home, or if he – now that he’s under arrest maybe he wants the phone number from his phone, like the phone number of a lawyer or a phone number to – like his family or something.”

[240] Officer Girgis testified that he opened the satchel for the following reasons:

“So I could see if the belonging, what belongings were there and I could find a wallet, find anything with his name on it, like a, sorry, a driver’s licence or something.”

[241] In cross-examination, Ms. Gadhia asked Officer Girgis to explain why he secured and opened the satchel, and asked “Is it for identification?” Officer Girgis replied:

“It’s to gather the belonging of the person who’s now under arrest.”

[242] Mr. Glasgow-Oliver did not ask Officer Girgis or any other officer to gather his belongings or look inside the satchel.

[243] Ms. Serban asked Officer Girgis whether, at the time he looked inside the satchel, any other officer had “found anything else on Maurice Glasgow-Oliver.” Officer Girgis answered as follows:

“No. No, I didn’t know. It was very quickly. It all happened very quickly and so when I looked outside I found the gun and then I announced to everyone there, ‘Gun’, and – just so I made all the officers aware there was a firearm present.”

[244] Later in the cross-examination, Officer Girgis was asked to explain why he gathered Mr. Glasgow-Oliver’s belongings, and he replied:

“I wanted to confirm his identification and gather his belongings now that he is an arrested party, and he would be going into our custody.”

[245] According to Officer Girgis, when he announced that he found a gun, Officers Cardona and Cheung were standing with Mr. Glasgow-Oliver, about 15 feet away from the passenger side of the black Mercedes.

[246] In cross-examination, Officer Girgis denied that he heard Officer Cardona state that he found a driver’s licence or some other form of identification on Mr. Glasgow-Oliver’s person prior to finding the handgun.

[247] According to Officer Cheung, after Mr. Glasgow-Oliver was handcuffed and stood up to do a search incident to arrest, Officer Girgis went to the driver’s side of the Mercedes. At one point, Officer Cheung testified that “after we were doing our field search”, he heard Officer Girgis state that he found a semi-automatic handgun.

[248] At one point in his testimony, Officer Cheung said that Officer Girgis announced that he found the handgun within ten to fifteen seconds after Mr. Glasgow-Oliver had been secured. At another point, Officer Cheung said that these events occurred within a ten-minute timeframe. Officer Cheung then testified that “one minute would be too short.” Officer Cheung’s evidence changed again after that. In cross-examination, he testified that these events occurred, “within a, a few minutes, yeah. Very, very – it’s not ten. Ten would be too long.”

[249] Officer Cheung also testified that as the field search was being conducted, Officer Girgis located a gold necklace with a medallion on the ground and picked it up for safekeeping.

[250] Officer Cheung initially testified that he could not recall if Officer Cardona found anything during the field search. In cross-examination, Officer Cheung acknowledged it was possible that during the search of Mr. Glasgow-Oliver, Officer Cardona found Mr. Glasgow-Oliver’s driver’s licence and “announced it” to both Officers Cheung and Girgis.

[251] Officer Cardona testified that after Mr. Glasgow-Oliver was handcuffed, he conducted a pat-down search to look for identification, weapons and anything that could possibly help Mr. Glasgow-Oliver escape. Officer Cardona testified that he could not recall whether he searched Mr. Glasgow-Oliver while he was on the ground or once he was standing.

[252] Officer Cardona testified that during the pat-down search he found, in the front right pocket of Mr. Glasgow-Oliver’s jeans, an Ontario driver’s licence with Mr. Glasgow-Oliver’s name and date of birth on it. Officer Cardona initially testified that he could not recall what Officer Girgis was doing at this time. Officer Cardona then stated that Officer Girgis had gone towards the black Mercedes after the officers had Mr. Glasgow-Oliver under control. He testified that Officer Girgis was not with him during the pat-down search. However, Officer Cardona later testified that he could not recall if Officer Girgis was with him when he found Mr. Glasgow-Oliver’s driver’s licence.

[253] Officer Cardona was asked by Ms. Serban “how long was it between when Officer Girgis was with you to when he was at the car?” Officer Cardona stated that he didn’t “specifically remember how long it was.” Officer Cardona testified that he “didn’t know specifically if it went past a minute or not. But it wasn’t a great deal of time.”

[254] In cross-examination, Officer Cardona agreed that when he located Mr. Glasgow-Oliver’s driver’s licence identification he “notified everyone” that he found a document that confirmed Mr. Glasgow-Oliver’s identification. Officer Cardona testified that he “announced” that he found Mr. Glasgow-Oliver’s driver’s licence to his “fellow officers”.

[255] Officer Cardona was clear that he found Mr. Glasgow-Oliver’s driver’s licence before Officer Girgis indicated that he had located a gun. Officer Cardona testified:

“Yes, I’d found the driver’s licence first and then learned about the gun.”

[256] Officer Cardona testified that when Officer Girgis was at the driver’s side of the black Mercedes, they were about 15 feet away from each other. The car was between them, but both the front doors were open. Officer Cardona testified that his view of Officer Girgis was not obstructed by anything.

[257] Officer Cardona testified that after he told the officers that he found Mr. Glasgow-Oliver’s identification, Officer Cheung advised Mr. Glasgow-Oliver of his rights to counsel, in relation to the arrest warrant from Peel. Officer Cardona testified that it was at that point that Officer Girgis announced that he had found a handgun.

[258] Officer Rorabeck testified that “a short minute or two after everything had calmed down” Officer Girgis was “at the black Mercedes”. According to Officer Rorabeck, Officer Girgis stated that he had located a gun inside the Mercedes. Officer Rorabeck testified that he immediately arrested Kevin Glasgow for possession of a firearm.

Legal Principles

[259] As the search of the satchel was a warrantless search, it was prima facie unreasonable. In these circumstances, the Crown has the burden of showing the search was reasonable: R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51, at para. 11.

[260] In this case, the Crown relied on the common law power of search incident to arrest to provide the legal authority for the search.

[261] The common law power of search incident to arrest is:

“…an exception to the ordinary requirements for a reasonable search (as articulated in Hunter, supra) in that it requires neither a warrant nor independent reasonable and probable grounds. Rather, the right to search arises from the fact of the arrest”: Caslake, at para. 13.

[262] As Justice Fairburn noted in R. v. Canary, 2018 ONCA 304, at para. 33, a search incident to arrest rests on three components:

“(a) the arrest is lawful; (b) the search is truly incidental to the arrest, in the sense that it is connected to the arrest, either as a means by which to discover and preserve evidence connected to the arrest, protect safety, or protect against escape; and (c) the search is conducted reasonably.”

[263] The “scope of the power to search incident to arrest is fact specific”: R. v. Santana, 2020 ONCA 365, at para. 28. Whether the police were attempting to achieve some valid purpose connected to an arrest by conducting a search “will depend on what the police were looking for and why”: Caslake, at para. 19.

[264] There must be a valid objective served by the search and “an objective cannot be valid if it is not reasonable to pursue it in the circumstances of the case”: Caslake, at para. 20.

[265] To be a valid search incident to arrest, the search must be “truly incidental” to the arrest. The police “must be attempting to achieve some valid purpose connected to the arrest”: Caslake, at para. 20. A search cannot be incidental to an arrest when the officer is actually acting for purposes unrelated to the arrest. An officer “must have one of the purposes for a valid search incident to arrest in mind when the search is conducted”: Caslake, at para. 10. Further, an officer’s belief that this purpose will be served by the search must be a reasonable one”: Caslake, at para. 19. This does not involve a standard of reasonable and probable grounds. Instead, “here, the only requirement is that there must be some reasonable basis for doing what the police officer did”: Caslake, at para. 20.

[266] If the justification for a search is to find evidence, “there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested”: Caslake, at para. 22 [Emphasis in original.]

[267] The police “cannot rely on the fact that, objectively, a legitimate purpose for the search existed when that is not the purpose for which they searched”: Caslake, at para. 27.

[268] A search for identification documents where the person under arrest does not identify himself or herself or to confirm the identity given by the arrestee is related to the objectives of the proper administration of justice, whether or not it is properly classified as a search for evidence. Such a search has been found to be a valid objective for a search incident to arrest: R. v. Nunnery, 2006 CanLII 35002 (ON SC), at para. 26; R. v. Singh, 2015 ONSC 6312 (ONSC), at para. 35.

Conclusion

[269] I have concluded that Mr. Glasgow-Oliver’s s. 8 rights were violated when Officer Girgis opened the satchel.

[270] Ms. Serban characterized the inconsistency between the evidence of Officer Cardona and Officer Girgis as to what happened when Officer Cardona found identification on Mr. Glasgow-Oliver and Officer Girgis found the handgun in the car as a “peripheral or minor inconsistency”. I do not agree.

[271] I find that prior to Officer Girgis opening the satchel, Officer Cardona had already found Mr. Glasgow-Oliver’s driver’s licence on his person.

[272] I find that Officer Girgis discovered the handgun after Officer Cardona “announced” that he had found Mr. Glasgow-Oliver’s driver’s licence or identification.

[273] At most, Officer Girgis was 20 feet away from Officer Cardona when Officer Cardona announced that he found Mr. Glasgow-Oliver’s identification. However, I believe that they were much closer to each other than that. Based on all of the evidence, including the sequence of the events which occurred shortly after Mr. Glasgow-Oliver was arrested and the close proximity of Officer Girgis to Officer Cardona, I find that Officer Girgis heard Officer Cardona say that he had located Mr. Glasgow-Olivier’s identification. I am also satisfied that Officer Girgis heard this before he opened the satchel.

[274] I do not accept Officer Cheung’s original testimony that Officer Girgis located the handgun within ten to fifteen seconds after Mr. Glasgow-Oliver was handcuffed and brought to his feet. Officer Cheung’s evidence in this area was inconsistent and unreliable.

[275] Ms. Serban argued that it was reasonable for Officer Girgis to want to look for identification documents for the purpose of “unequivocally” confirming Mr. Glasgow-Oliver’s identity. I do not accept that argument. Officer Girgis did not testify that he was attempting to “unequivocally confirm” Mr. Glasgow-Oliver’s identity after hearing that Officer Cardona had found identification documents. Officer Girgis denied that he heard Officer Cardona state that he had found Mr. Glasgow-Oliver’s identification. As I have already stated, I do not accept this part of Officer Girgis’s evidence.

[276] In some cases, it will be reasonable for an officer to continue to look for identification to confirm that the name given by an arrested person is correct: Singh, at para. 35. However, in this case, prior to Officer Girgis locating the handgun, Officer Cardona found Mr. Glasgow-Oliver’s driver’s licence, which is highly reliable evidence to establish a person’s identification. There was no need to “confirm” Mr. Glasgow-Oliver’s identity after Officer Cardona found Mr. Glasgow-Oliver’s driver’s licence.

[277] There was no reasonable basis for Officer Girgis to look for identification documents in the car after he knew that Officer Cardona had already found an identification document on Mr. Glasgow-Oliver.

[278] I do not believe that Officer Girgis opened the satchel to find an identification document.

[279] The other reason offered by Officer Girgis for looking into the satchel was that Mr. Glasgow-Oliver was in custody and would have wanted his personal belongings. Officer Girgis justified the search of the satchel by stating that he had a responsibility to gather “the arrested party’s personal belongings anticipating that he would be in our custody for a long time.”

[280] Mr. Glasgow-Oliver did not ask anyone to retrieve his personal belongings from the car.

[281] Putting aside the question of what law authorizes an officer to conduct a search of a satchel found in a car to find personal items that an accused might need because he was going into custody, Officer Girgis’s claim that he opened the satchel to retrieve personal items that Mr. Glasgow-Oliver might need was, in my view, not credible.

[282] I do not believe that one of Officer Girgis’s first thoughts after being involved in Mr. Glasgow-Oliver’s arrest, which required the use of significant force by three officers, was that he should look inside a satchel in a car to find personal belongings that Mr. Glasgow-Oliver might need.

[283] I do not believe that Officer Girgis opened the satchel to look for identification or to find personal items that Mr. Glasgow-Oliver might need.

[284] Mr. Glasgow-Oliver was arrested on the strength of a warrant in relation to an alleged robbery which occurred in Peel months earlier. There was no basis to believe that a search of the black Mercedes and/or the satchel would yield evidence in connection with that alleged offence. In any event, Officer Girgis did not claim that he searched the satchel to look for evidence in relation to the robbery.

[285] In my view, the search of the satchel cannot be justified as a search incident to arrest.

[286] There was no suggestion that the search of the satchel was conducted under a statutory authority.

[287] In my view, there was no lawful basis for Officer Girgis to open and search the satchel. Therefore, Mr. Glasgow-Oliver’s s. 8 rights were infringed.

I) SECTION 10(B)

[288] The relevant timeline is as follows:

• At approximately 2:56 a.m. – Mr. Glasgow-Oliver was placed under arrest.
• Between 2:56 a.m. and 3:00 a.m. – Officer Girgis found a loaded handgun in the black Mercedes.
• At approximately 3:00 a.m. – Maurice Glasgow-Oliver was advised that he was under arrest for unlawful possession of a loaded firearm in a car. Mr. Glasgow-Oliver was placed in the back seat of a police cruiser. Officer Cheung read the rights to counsel from his memo book to Mr. Glasgow-Oliver. Mr. Glasgow-Oliver asked to speak to his lawyer, Ms. Gadhia.
• From 3:00 a.m. until 3:42 a.m. - Mr. Glasgow-Oliver remained in the back seat of the police car, which remained in the parking garage.
• At 3:42 a.m. – Officers Rorabeck and Cardona left the garage in their police car. Mr. Glasgow-Oliver was in the back seat.
• At 3:48 a.m. – Mr. Glasgow-Oliver arrived at the 52 Division station with Officers Rorabeck and Cardona. They waited in the car until the booking sergeant was available.
• From 4:10 a.m. to 4:27 a.m. - Mr. Glasgow-Oliver was paraded before a booking sergeant. Officers conducted a level three search on Mr. Glasgow-Oliver. Officer Cardona advised the booking sergeant that Mr. Glasgow-Oliver has his own lawyer and that he had requested to speak with that lawyer. Officer Cardona told the booking sergeant that when “we are done here” they would obtain the name of the lawyer from the Major Crimes Unit officers, and would call that lawyer. The booking sergeant asked Mr. Glasgow-Oliver for the name of his lawyer, and he stated that his lawyer’s name was Roots Gadhia.
• At about 4:27 a.m., Mr. Glasgow-Oliver was placed into a cell.
• At about 4:34 a.m., Mr. Glasgow-Oliver was moved from the cell to an interview room.
• At 5:23 a.m., Officer Rorabeck called Ms. Gadhia on behalf of Mr. Glasgow-Oliver and left a message.
• At 5:33 a.m., Officer Rorabeck called duty counsel on behalf of Mr. Glasgow-Oliver.

Legal Principles

[289] Section 10(b) of the Charter provides that, “everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.”

[290] An accused person has the evidentiary burden, on a balance of probabilities, to establish that his or her s. 10(b) rights were infringed: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 30.

[291] In R. v. Jarrett, 2021 ONCA 758, at para. 41, Justice Zarnett stated as follows:

“Section 10(b) guarantees to anyone arrested or detained the right ‘to retain and instruct counsel without delay and to be informed of that right’. Where, upon being informed of the right, the detained person exercises it, the police must immediately provide the detainee with a reasonable opportunity to speak to counsel.”

[292] The police are under a constitutional obligation to provide access to counsel at the “first reasonable opportunity”: R. v. Taylor, 2014 SCC 50, [2014] 2 SCR 495, at para. 24. The practicalities of the situation must be considered as “they inform the reasonableness of the delay in facilitating the exercise of the right”: R. v. Patrick, 2017 BCCA 57, at para. 113; leave denied, [2017] SCCA 108.

[293] The onus is on the Crown to show, “that a given delay was reasonable in the circumstances”: Taylor, at para. 24. Whether a delay in facilitating access to counsel is reasonable is a factual inquiry: Taylor, at para. 24.

[294] In certain circumstances, including “concerns for police safety, public safety, or the preservation of evidence”, a delay in providing a detainee access to counsel may be justified: R. v. Bailey, 2021 ONSC 8089, at para. 39. These concerns must be “case-specific rather than general concerns applicable to virtually any case”: Bailey, at para. 39; R. v. Griffith, 2021 ONCA 302, at para. 41.

[295] Even where there are case-specific reasons that justify a delay in providing a detainee access to counsel, the police must take reasonable steps to minimize the delay: R. v. Rover, 2018 ONCA 745, at paras. 26-27; Bailey, at para. 39.

[296] Under s. 10(b), the police are required to “hold off” from attempting to elicit incriminatory evidence from a detainee until he or she has had a reasonable opportunity to consult with counsel: R. v. G.T.D., 2018 SCC 7, at para. 2; R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, at p. 269.

[297] The duty on the police to “hold off” applies to questions that are meant to elicit incriminatory evidence. It does not prevent police officers from asking standard booking questions or making other inquiries that are designed to “assist the accused to exercise his rights, preserve his property, provide care for his family, or protect his health and safety or the health and safety of others”: R. v. Dupe, 2010 ONSC 6594, at para. 24.

Positions of the Parties

[298] Ms. Gadhia argued that Mr. Glasgow-Oliver’s s. 10(b) rights were violated in two ways.

[299] First, it was asserted that the police failed to provide access to counsel at the first reasonable opportunity after Mr. Glasgow-Oliver was arrested. Ms. Serban conceded that Mr. Glasgow-Oliver’s s. 10(b) rights were violated, as a result of almost one hour of unexplained delay.

[300] Second, Ms. Gadhia argued that the police failed to hold off in their questioning until Mr. Glasgow-Oliver had an opportunity to exercise his right to counsel.

The First Alleged Section 10(b) Violation

[301] I will first deal with the argument that the police failed to provide Mr. Glasgow-Oliver with access to counsel at the first reasonable opportunity.

[302] Ms. Serban conceded that the delay from about 4:27 a.m. to 5:23 a.m. could not be justified. However, in my view, there were two periods of delay which could not be justified.

First Period of Delay – 3:00 a.m. to 3:42 a.m.

[303] I accept that it was not possible for the police to give Mr. Glasgow-Oliver an opportunity to speak to counsel in private while he was in the parking garage at 400 King Street West. Mr. Glasgow-Oliver was in held in the back of the police car in the garage for about 42 minutes. I am not satisfied that all of that delay was reasonable.

[304] In radio communications following Mr. Glasgow-Oliver’s arrest, Officer Girgis was asked by another officer whether he needed assistance in the garage and he responded that he needed a tow truck for the black Mercedes and a SOCO officer. Officer Girgis did not request an additional officer to take Mr. Glasgow-Oliver to the 52 Division station to facilitate his request to speak with counsel.

[305] At about 3:00 a.m., Officer Girgis was asked by an officer with the Major Crimes Unit whether he needed a “unit” down there, and Officer Girgis said they did not. When defence counsel suggested that it was not a priority for the police to get Mr. Glasgow-Oliver to the police station, Officer Girgis replied that Mr. Glasgow-Oliver was not in his scout car and he was “handling the firearm and that was his priority at the time.”

[306] Officer Girgis testified that he did not know why Mr. Glasgow-Oliver was kept in the parking garage until 3:42 a.m. Officer Girgis stated that “maybe it was Cardona or maybe it was Cheung taking custody” of Mr. Glasgow-Oliver, and he appeared to suggest that it was their responsibility to take Mr. Glasgow-Oliver to the 52 Division station. When Ms. Gadhia pointed out that Officer Girgis was working with Officers Cardona and Cheung, and he was the one “holding the radio”, Officer Girgis responded as follows:

“True, but, you know, mistakes do happen, especially in a high intensity situation and adrenaline, and things may not go as smoothly as one would want them to go when we’re in the comfort of an office.”

[307] In cross-examination, Officer Rorabeck agreed that after 3:00 a.m. there were a number of officers at the scene.

[308] Officer Rorabeck was asked why Mr. Glasgow-Oliver was kept in the garage until 3:42 a.m., and he replied:

“I can’t recall any particular reason why. I, I couldn’t say why we waited that long or picked that particular time. It would have – I think we were just there to make sure the scene was taken care of, that being the car. And then I don’t really have any other reason I could give you.”

[309] Officer Rorabeck was asked by Ms. Serban whether he had any responsibilities at the scene during that time, and he stated:

“I don’t recall any, no, nothing specific that I was detailed to. And I don’t think – I don’t believe I’ve anything noted.”

[310] Officer Rorabeck later stated that prior to 3:30 a.m., he was “just standing by [Kevin Glasgow], just waiting to get him to the station.”

[311] Officer Cheung provided a number of answers regarding why Mr. Glasgow-Oliver was not taken from the garage before 3:42 a.m. In my view, these answers did not provide a reasonable explanation for why Mr. Glasgow-Oliver was not taken from the garage before 3:42 a.m.

[312] Ms. Serban argued that Officer Cheung and Officer Girgis’s acknowledgement that steps could have been taken to transport Mr. Glasgow-Oliver to the 52 Division station before 3:42 a.m. were reasonable concessions that reflected positively on their credibility. I do not agree. In my view, the fact that steps could have been taken to transport Mr. Glasgow-Oliver to the 52 Division station before about 3:42 a.m. was obvious. Officers Cheung and Girgis did not immediately volunteer this evidence in cross-examination. To the extent that it could be said that Officers Cheung and Girgis acknowledged that Mr. Glasgow-Oliver could have been taken to the 52 Division station earlier, it was the product of Ms. Gadhia’s cross-examination.

[313] I accept that the arrest of Mr. Glasgow-Oliver was, as Officer Girgis stated, a “high intensity situation.” I accept that the police had a number of responsibilities immediately following the arrest. One of those responsibilities was to ensure that Mr. Glasgow-Oliver was given access to counsel as soon as reasonably possible.

[314] There was no reasonable explanation provided by any of the officers as to why Officer Rorabeck could not turn custody of Kevin Glasgow over to another officer well before 3:30 a.m., and take Mr. Glasgow-Oliver to the 52 Division station.

[315] There was no reason why only Officers Rorabeck and Cardona could have taken Mr. Glasgow-Oliver to the 52 Division station.

[316] In my view, no officer provided a reasonable explanation for why it took over 40 minutes to leave the garage with Mr. Glasgow-Oliver after he was arrested.

[317] There were a number of options that that were reasonably available to the officers which would have allowed them to transport Mr. Glasgow-Oliver to the 52 Division station well before 3:42 a.m. without compromising the investigation or officer safety.

[318] Based on all of the evidence, it is my conclusion that providing Mr. Glasgow-Oliver access to counsel without delay was not viewed by the officers to be a priority.

[319] I have concluded that 20 minutes of the delay between 3:00 a.m. and 3:42 a.m. were reasonable. The remaining 22 minutes could not be justified.

Second Period of Delay – 4:27 a.m. to 5:23 a.m.

[320] I will now turn to the second period of delay which could not be justified. Ms. Serban acknowledged that there is no explanation as to why Officer Rorabeck did not attempt to contact Mr. Glasgow-Oliver’s lawyer before 5:23 a.m.

[321] As previously stated, Officers Cardona and Rorabeck were present when Mr. Glasgow-Oliver told Sergeant Bernard that his lawyer’s name was Ms. Gadhia.

[322] Sergeant Bernard testified that efforts are usually made to contact counsel after an accused is “safely booked in and all accounted for.” Mr. Glasgow-Oliver was placed into a cell at about 4:27 a.m.

[323] Officer Ghazarian was asked by Crown counsel about “practices and procedures at 52 Division regarding implementing rights to counsel.” Officer Ghazarian had worked in 52 Division for years. According to Officer Ghazarian, there are no specific guidelines for the timeline as to when a call should be made on behalf of an accused to counsel after the booking process, but “as soon as practicable” is the best practice.

[324] Officers Cardona and Cheung testified that it was Officer Rorabeck’s responsibility to call counsel on behalf of Mr. Glasgow-Oliver. Sergeant Bernard testified that a member of the investigative team had the responsibility of calling counsel. Officer Girgis testified that it was not his responsibility to call counsel as other police officers had the contact information for Mr. Glasgow-Oliver’s lawyer.

[325] Officer Rorabeck testified that he did not remember why he did not call Mr. Glasgow-Oliver’s lawyer until 5:23 a.m.

[326] Mr. Glasgow-Oliver’s rights under s. 10(b) were violated by the delay in providing him access to counsel between 4:27 a.m. and 5:23 a.m.

[327] In total, 78 minutes of the delay between 3:00 a.m. and 5:23 a.m. could not be justified.

The Second Alleged Section 10(b) Violation

[328] I will now address the second alleged s. 10(b) violation.

[329] According to Mr. Glasgow-Oliver, two plain-clothes police officers attempted to interview him while he was in the interview room. This was before he was given an opportunity to speak with counsel. Mr. Glasgow-Oliver testified had not seen these officers in the garage or earlier at the police station. He could not recall their names. When asked in examination-in-chief if they told him who they worked for, Mr. Glasgow-Oliver answered, “Yeah, I’m pretty sure Guns and Gangs.”

[330] Mr. Glasgow-Oliver testified that these officers were in the interview room with him for about 20 minutes. During that time, according to Mr. Glasgow-Oliver, the officers asked him a number of questions, including, “where is this firearm from?” and “do you know anyone who has firearms?” Mr. Glasgow-Oliver testified that the officers told him that if he helped them, they would help him.

[331] According to Mr. Glasgow-Oliver, he told the officers that he just wanted to speak to his lawyer. He testified that they continued to ask him questions.

[332] During examination-in-chief, Mr. Glasgow-Oliver stated that the officers left the interview room for a while and then returned. According to Mr. Glasgow-Oliver, he fell asleep in the room before the officers returned. Mr. Glasgow-Oliver testified that he asked the officers why they left him in the room without giving him an opportunity to speak to a lawyer.

[333] Mr. Glasgow-Oliver testified that after the officers left, he waited another 15 to 20 minutes before he was given an opportunity to speak with his lawyer.

[334] Mr. Glasgow-Oliver said that about ten minutes after he spoke to a lawyer, he was taken back to the holding cells.

Conclusion on the Second Alleged Section 10(b) Violation

[335] Ms. Serban argued that I should reject Mr. Glasgow-Oliver’s evidence, and find that no police officer attempted to interview Mr. Glasgow-Oliver before he had been given an opportunity to speak with counsel.

[336] As I have already stated, I have real concerns about Mr. Glasgow-Oliver’s credibility and the reliability of his evidence. I did not accept most of Mr. Glasgow-Oliver’s account of what occurred in the garage.

[337] However, I accept Mr. Glasgow-Oliver’s evidence that two police officers attempted to interview him while he was in the interview room. This was before he was given an opportunity to speak with counsel. His testimony in this area was not significantly undermined in cross-examination. In my view, Mr. Glasgow-Oliver’s testimony on this subject was plausible. It makes sense that police officers would want to ask Mr. Glasgow-Oliver about the firearm, and determine if he would be prepared to provide the police with information.

[338] In arriving at this conclusion, I recognize that there was at least one apparent inconsistency in this part of Mr. Glasgow-Oliver’s evidence. Mr. Glasgow-Oliver testified that the two officers were waiting for him in the interview room. In his affidavit, he stated that he “was brought to a room with a camera and that officers came into the room and tried to ask me questions.” In assessing his credibility and the reliability of his evidence I have taken that apparent inconsistency into account. However, in light of all of the evidence, I do not view it as particularly significant.

[339] Mr. Glasgow-Oliver could not recall the names of the officers who attempted to speak with him. In considering that part of his evidence, it is worth remembering that he dealt with quite a few officers that day. I also note that, during Mr. Glasgow-Oliver’s testimony, on more than one occasion, he could not recall the names of officers who dealt with him in the garage – some of these officers had testified at this trial.

[340] Officer Rorabeck testified that could not recall why Mr. Glasgow-Oliver was moved to an interview room. Officer Rorabeck testified that he would have been instructed by someone to move Mr. Glasgow-Oliver, but he could not recall who gave him that instruction or why the instruction was given.

[341] Officer Rorabeck testified that he could not recall what he was doing from 4:34 a.m. until 5:23 a.m. Officer Rorabeck said that he had no memory of why he did not call a lawyer until 5:23 a.m. Officer Rorabeck made no notes of what he was doing between 4:27 a.m. and 5:23 a.m. According to Officer Rorabeck, after he placed Mr. Glasgow-Oliver in the interview room, the next thing he did in relation to this investigation was call a lawyer for Mr. Glasgow-Oliver at 5:23 a.m. - about 50 minutes after Mr. Glasgow-Oliver had been left in the interview room. Officer Rorabeck testified that he received information from someone about who Mr. Glasgow-Oliver’s lawyer was at approximately 5:23 a.m.

[342] Officer Rorabeck testified that “it’s pretty regular practice for us” to call counsel on behalf of a person who was held in a cell. He testified that he could not recall if another officer instructed him to make a call to counsel on behalf of Mr. Glasgow-Oliver or “why it was decided that I would stay to do that.”

[343] Officer Cardona testified that he and Officer Rorabeck moved Mr. Glasgow-Oliver from a cell to an interview room, so that Mr. Glasgow-Oliver and Kevin Glasgow could not yell back and forth to each other in the cells. Officer Cardona could not recall who made the decision to move Mr. Glasgow-Oliver to the interview room. He was clear that it was not his decision.

[344] I accept Sergeant Bernard’s evidence that she heard Mr. Glasgow-Oliver and Kevin Glasgow yelling back and forth while they were in the cells. Sergeant Bernard was off-duty when Mr. Glasgow-Oliver was moved to the interview room. While Sergeant Bernard understood that Mr. Glasgow-Oliver was moved to the interview room because he and Kevin Glasgow were yelling at each other, she was not present when Mr. Glasgow-Oliver was moved to the interview room. Sergeant Bernard was not “involved in that decision-making process.”

[345] While one reason that Mr. Glasgow-Oliver was moved from the cell to the interview room may have been because of the noise that he and Kevin Glasgow were making in the cells, that does not mean that there was no other reason.

[346] Mr. Glasgow-Oliver had asked to speak to a lawyer as soon as he was arrested. On more than one occasion, Mr. Glasgow-Oliver had given the name of his lawyer to the police. Indeed, shortly after 4:10 a.m., Mr. Glasgow-Oliver said that his lawyer was Ms. Gadhia. Officer Rorabeck was standing next to Mr. Glasgow-Oliver when he said that. Mr. Glasgow-Oliver was told that he would be given reasonable access to a phone to speak to counsel.

[347] Officer Rorabeck testified that he did not recall going back to the interview room between 4:34 a.m. and 5:23 a.m. Officer Rorabeck testified that he “would have just put him in there and that would have been it.”

[348] Officer Cardona testified that after Mr. Glasgow-Oliver was placed in the interview room, he did not speak with Mr. Glasgow-Oliver. Officer Cardona said that he did not know if anyone else attempted to speak with Mr. Glasgow-Oliver.

[349] It was Officer Rorabeck’s evidence that normally steps are taken by police to contact counsel once an accused person is placed in a cell. That did not happen in this case. There was no reasonable explanation as to why that did not happen.

[350] In my view, it is significant that after Mr. Glasgow-Oliver was taken by officers to an interview room, the police did not attempt to contact a lawyer on his behalf for over 50 minutes. There was no explanation for this delay. The absence of any notes or recollection by any of the officers as to why Mr. Glasgow-Oliver was held in an interview room from about 4:34 a.m. to 5:23 a.m. without anyone attempting to contact counsel is, in my view, significant.

[351] I do not accept that the police took Mr. Glasgow-Oliver from a cell and placed him in an interview room for close to an hour without taking any steps to facilitate access to counsel for no reason.

[352] I believe Mr. Glasgow-Oliver’s evidence that two police officers attempted to interview him while he was in the interview room.

[353] To be clear, I have not made a finding that either Officer Rorabeck or Officer Cardona provided evidence at this trial that they knew was untrue. I am not certain whether either of them knew that two officers attempted to speak with Mr. Glasgow-Oliver while he was in the interview room.

[354] However, it is my conclusion that a deliberate decision was made by at least two police officers to attempt to interview Mr. Glasgow-Oliver before he was given an opportunity to speak to counsel. Based on this record, I cannot say which officers made this decision.

[355] I find that Mr. Glasgow-Oliver’s s. 10(b) rights were violated by the police failing to hold off from attempting to elicit evidence from him before he was given an opportunity to speak with counsel.

J) SECTION 24(2) (Mr. Glasgow-Oliver’s Application)

[356] Having found that Mr. Glasgow-Oliver’s Charter rights were violated under ss. 7, 8 and 10(b), I turn to the question of whether the evidence should be excluded under s. 24(2) of the Charter.

“Obtained in a Manner”

[357] Section 24(2) is triggered where evidence is “obtained in a manner” that infringes an accused’s Charter rights. In considering this issue, a court must “examine the entire chain of events between the accused and the police”: R. v. Pino, 2016 ONCA 389, at para. 72.

[358] To trigger s. 24(2), the connection between the breach and the evidence must not be “too tenuous or too remote”: Pino, supra, at para. 72. The connection may be “causal, temporal, or contextual, or any combination of these three connections”: Pino, supra, at para. 72.

[359] In this case, there was a clear causal connection between the s. 8 breach and the police finding the handgun.

[360] In my view, while there was no causal connection between the s. 10(b) breaches and the evidence, there were sufficient contextual and temporal connections to conclude that the evidence was “obtained in a manner” that infringed a Charter right for the purposes of s. 24(2).

[361] I do not see a sufficient causal, contextual or temporal connection between the s. 7 violation and the police locating the handgun to conclude that this evidence was “obtained in a manner” for the purposes of s. 24(2). The s. 7 violation does not satisfy the “obtained in a manner” requirement. However, the s. 7 breach is relevant to the issue of whether there was a pattern of Charter-infringing conduct. I have already concluded that a stay of proceedings is not warranted based on the s. 7 violation.

The Grant Factors

[362] In deciding whether the admission of evidence would bring the administration of justice into disrepute, a court must consider each of the three Grant lines of inquiry.

First Stage of the Grant Inquiry

[363] In R. v. Dunkley, 2016 ONCA 597, the Court stated as follows at para. 55:

“….infringements vary in seriousness. Inadvertent or minor violations of the Charter will have a minimal impact on public confidence in the rule of law, whereas evidence obtained through willful or reckless disregard of Charter rights poses a very serious risk of bringing the administration of justice into disrepute. Such willful or reckless disregard sends the message that courts ‘effectively condone state deviation from the rule of law’.”

[364] I will address the s. 8 violation first. I have concluded that Officer Girgis had no lawful basis to look inside the satchel.

[365] Officer Girgis was an experienced police officer. I believe that he knew that there was no lawful basis to conduct this search. That makes the s. 8 breach more serious.

[366] Turning to the s. 10(b) breaches. These were not insignificant violations. Almost immediately after he was arrested, Mr. Glasgow-Oliver clearly asked to speak with his lawyer. The police took no steps to facilitate that request for almost 2 ½ hours.

[367] Mr. Glasgow-Oliver’s s. 10(b) rights were violated again when the police failed to hold off questioning him until after he was given an opportunity to speak to counsel. Given all the circumstances, there is a reasonable basis to conclude that a decision was made to delay Mr. Glasgow-Oliver’s access to counsel to allow officers to interview him before he spoke to counsel.

[368] The decision to not hold off questioning Mr. Glasgow-Oliver was a serious violation of his s. 10(b) rights: R. v. Mohamed, 2022 ONCA 117, at para. 24.

[369] In R. v. Hamilton, 2017 ONCA 179, at para. 71, Justice Gillese stated that “the police obligation to ‘hold off’ questioning detainees who have requested a consultation with counsel is firmly established law of long-standing.” See also G.T.D., at para. 4; R. v. McSweeney, 2020 ONCA 2, at para. 79. The s. 10(b) breaches in this case were violations of well-established rules. That increases the seriousness of the breaches and supports the exclusion of the evidence under s. 24(2): R. v. Harrison, 2009 SCC 34, [2009] 2 SCR 494, at paras. 24-25; R. v. Paterson, [2017] 1 SCR, at para. 44; R. v. Noel, 2019 ONCA 860, at para. 34: Le, at paras. 149-150.

[370] In R. v. Adler, 2020 ONCA 246, at para. 27, Justice Nordheimer concluded that “an officer, who violates a Charter right while knowing better, commits a flagrant breach.” The willful disregard of Mr. Glasgow-Oliver’s rights under s. 8 and s. 10(b) weighs heavily towards exclusion of the evidence: McSweeney, at para. 79.

[371] The indifference to the “fundamental, important and long-settled Charter right to consult counsel without delay” militates in favour of exclusion: Noel, at paras. 32 and 34; R. v. Ramage, 2010 ONCA 488, at para. 50; R. v. Brown, 2012 ONCA 225, at para. 26.

[372] I now turn to the s. 7 breach. Officer Chang’s failure to disclose and retain the full CCTV video resulted in a s. 7 violation. Officer Chang has been a police officer since 2010. I cannot characterize this failure as a good faith error. Good faith cannot be claimed if a Charter violation is committed on the basis of a police officer’s unreasonable error or ignorance regarding the law: R. v. Mann, 2004 SCC 52, [2004] 3 SCR 59, at para. 55.

[373] While I have concluded that Officer Chang did not deliberately fail to disclose or retain relevant evidence, her failure to understand well-established Charter obligations led to the loss of the full CCTV video from 8 Charlotte Street.

[374] There was a pattern of Charter-infringing conduct in this case. A finding that there was a pattern of Charter-infringing conduct tends to support exclusion, in recognition of the need for courts to distance themselves from this behaviour: Grant, at para. 75.

[375] I view the Charter-infringing state conduct to be at the serious end of the spectrum.

Second Stage of the Grant Inquiry

[376] The second stage of the Grant inquiry requires a court to assess whether the Charter breach actually undermined the interests protected by the right infringed: Grant, at para 76.

[377] The impact of a constitutional infringement on an accused’s Charter-protected interest is a variable, and violations range from technical to highly intrusive: Grant, at para. 76. The more serious the violation on the protected interests of an accused, “the greater the risk that admission of the evidence may signal that Charter rights, however high sounding, are of little avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute”. Grant, at para. 76; Harrison, at para. 28.

[378] To determine the seriousness of an infringement, a court must look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests: Grant, at para. 77. The more serious the incursion on those interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute: Grant, para. 77.

[379] I will start with the impact of the s. 8 violation. An unreasonable search that intrudes on an area in which a person reasonably enjoys a high expectation of privacy is more serious than one that does not: Grant, at para. 78. A person has a reduced expectation of privacy as a driver of a motor vehicle, as compared to a person in their home or an office. However, a reduced expectation of privacy does not mean that an unjustified search is permissible: R. v. Harflett, 2016 ONCA 248, at para. 47. The contents of the satchel were not plain view. In my view, the impact on Mr. Glasgow-Oliver’s interests protected by s. 8 of the Charter was not insignificant.

[380] I will now turn to the interests protected by the right to instruct counsel without delay. This right “exists because those who are arrested or detained are apt to require immediate legal advice that they cannot access without help, because of their detention”: Noel, at para. 23. [Emphasis in original.]

[381] Section 10(b) allows a detainee to “obtain advice about how to exercise their rights relevant to their legal situation”: R. v. Thompson, 2020 ONCA 264, at para. 99; Taylor, at para. 21. This right assists in ensuring that “a detainee’s choice to speak to the police is free and informed and guards against the risk of involuntary self-incrimination”: Thompson, at para. 99.

[382] The fact that an accused’s right to consult counsel was delayed, but ultimately not denied, does not neutralize the loss of this right: Noel, at para. 22.

[383] The right to counsel protects more than access to legal advice. The right to counsel is also, “important in providing ‘reassurance’ and advice, on such questions as how long the detention is apt to last and what can or should be done to regain liberty”: Noel, at para. 26. As Justice Doherty stated in Rover, at para. 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.”

[384] There was no causal connection between the s. 10(b) violations and the discovery of the handgun. In some cases, the lack of a causal connection can mitigate the impact of a s. 10(b) infringement: Rover, at para. 43. However, the absence of a causal connection between the breach and the evidence discovered will not always mean that there has been no significant negative impact on the accused’s Charter-protected rights: Jarrett, at para. 53. The impact must be “considered given the nature of the interests protected by the right to counsel, and the length of delay in providing it”: Jarrett, at para. 53; Noel, at para. 27.

[385] Mr. Glasgow-Oliver asked to speak to counsel immediately after he was arrested. Almost 2 1/2 hours elapsed between the time he was arrested and the first attempt by the police to contact counsel. Seventy-eight minutes of this delay could not be justified by the Crown. During this period, the police attempted to elicit evidence from him, and he was unable to obtain the advice, direction and reassurance that counsel could have provided. I view the impact of the s. 10(b) violations on Mr. Glasgow-Oliver’s s. 10(b) rights as significant.

[386] In my view, the impact of the infringements on Mr. Glasgow-Oliver’s Charter-protected interests under s. 8 and s. 10(b) was serious.

Third Stage of the Grant Inquiry

[387] The third stage of the Grant inquiry requires an assessment of the societal interest in the adjudication of a case on the merits.

[388] The reliability of the evidence, the importance of the evidence to the Crown’s case and the seriousness of the offence are relevant considerations at this stage.

[389] This inquiry “asks whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence or by its exclusion”: Thompson, at para. 104; Grant, at para. 79.

[390] Reliable evidence that is very important to the Crown’s case “will generally pull towards inclusion”: Thompson, at para. 104; Harrison, at paras. 33-34.

[391] The handgun is real and reliable evidence. It is essential to the Crown’s case against Mr. Glasgow-Oliver.

[392] At para. 83 of Grant, the Court stated that the “exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.” In this case, the exclusion of the handgun would gut the Crown’s case.

[393] Mr. Glasgow-Oliver is charged with very serious offences that involve the safety of the community. Society has a strong interest in an adjudication on the merits of cases involving a loaded handgun: R. v. Bashir, 2012 ONCA 793, at para. 7. In R. v. Nur, 2015 SCC 15, [2015] 1 SCR 773, at para. 1, the Supreme Court stated, “Gun-related crime poses grave danger to Canadians.”

[394] In R. v. Omar, 2018 ONCA 975, at para. 138; Justice Brown, in dissent, stated that “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.” The Supreme Court of Canada allowed the Crown’s appeal substantially for the reasons of Justice Brown: R. v. Omar, 2019 SCC 32.

[395] The third Grant inquiry favours admission of the evidence.

Overall Balancing

[396] The final step under the s. 24(2) analysis involves balancing the three lines of inquiry to assess the impact of the admission or exclusion of the evidence on the long-term repute of the administration of justice. This is a qualitative exercise, one that is not capable of mathematical precision: Harrison, at para. 36.

[397] In Le, at para. 141, the majority stated that “while the first two lines of inquiry typically work in tandem in the sense that both pull towards exclusion of the evidence, they need not pull with identical degrees of force in order to compel exclusion.”

[398] In Le, at para. 141, the majority concluded that, in some cases, serious Charter-infringing conduct, even when coupled with a relatively weak impact on a Charter protected-interest, will “on its own support a finding that admission of tainted evidence would bring the administration of justice into disrepute.” It is “the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion”: Le, at para. 141.

[399] If the first two Grant inquiries together make a strong case for exclusion, the third inquiry “will seldom if ever tip the balance in favour of admissibility’”: Thompson, at para. 107; R. v. McGuffie, 2016 ONCA 365, at para. 63.

[400] In this case, the first and second lines of inquiry make a strong case for exclusion.

[401] In R. v. Caron, 2011 BCCA 56, at para. 66, the Court stated as follows:

“While the public has an unquestionable interest in the successful prosecution of persons who unlawfully carry loaded firearms, it also expects those engaged in law enforcement to respect the rights and freedoms we all enjoy by acting within the limits of their authority.”

[402] In Harrison, at para. 34, the majority stated as follows:

“While the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.”

[403] The police are required to “act in a manner that contributes to the public’s perception of police legitimacy”: Le, at para. 162. The perception of police legitimacy is undermined when the police disregard well-established constitutional obligations. Requiring the police to comply with these obligations promotes public confidence in the justice system.

[404] I have concluded that the admission of the evidence in this case would damage the long-term repute of the criminal justice system, given the multiple Charter violations that had a serious impact on Charter-protected interests.

[405] Mr. Glasgow-Oliver’s application to exclude the handgun under s. 24(2) of the Charter is allowed.

K) KEVIN GLASGOW’S CHARTER APPLICATION

[406] By the end of the trial, Kevin Glasgow was facing one charge – carrying a concealed weapon contrary to s. 90(1) of the Criminal Code.

[407] The foundation for the Charter argument advanced on behalf of Kevin Glasgow was that the police did not have reasonable and probable grounds to arrest him for a firearm offence.

[408] It was argued that, since Kevin Glasgow’s arrest was unlawful, the strip search of Kevin Glasgow at the police station violated his s. 8 rights, and that the knife that the police found during this search should be excluded under s. 24(2).

[409] Mr. Kirichenko conceded that for safety reasons the police were justified in detaining Kevin Glasgow while officers were attempting to arrest Mr. Glasgow-Oliver. I agree with that concession. The police were required to use force to arrest Mr. Glasgow-Oliver. At the time, the police did not know who Kevin Glasgow was or whether he might attempt to assist Mr. Glasgow-Oliver.

[410] Mr. Kirichenko argued that once the police had handcuffed Mr. Glasgow-Oliver, there was no lawful basis to continue to detain Kevin Glasgow.

[411] Ms. Serban argued that the police had reasonable grounds to arrest Kevin Glasgow once the firearm was found. Ms. Serban argued that there were reasonable grounds to believe that Kevin Glasgow and Mr. Glasgow-Oliver had joint possession of the handgun. Ms. Serban argued that, given the nature of the charges, the level three search was reasonable. Finally, Ms. Serban argued that even if the Court were to find a s. 8 breach, the administration of justice would be brought into disrepute if the knife were excluded.

[412] Officer Rorabeck testified that he detained Kevin Glasgow as the other officers were attempting to arrest Mr. Glasgow-Oliver. According to Officer Rorabeck, after “things had calmed down” with Mr. Glasgow-Oliver, he placed handcuffs on Kevin Glasgow. Officer Rorabeck testified that when Officer Girgis announced that he had found a handgun in the car:

“I immediately, advised the person I had detained that they were now under arrest. It was no longer just a detention, it was that they were under arrest, and that they were under arrest for the, the possession of that firearm being in the car.”

[413] Officer Rorabeck also testified as follows:

“Given that the firearm was located inside the vehicle, that – that’s why I advised him that he was found in possession of that firearm.”

[414] Officer Rorabeck testified that he wasn’t “completely sure” where Kevin Glasgow had “come from inside the vehicle”.

[415] In cross-examination, Officer Rorabeck testified that “…I’m certainly not saying I watched him inside that car, then step out, then be at the car door.” Officer Rorabeck testified that he thought that this man was “coming out of the car” because, when Officer Rorabeck first saw him, “he was in that half – like almost like he had a step in the car.”

Legal Principles

[416] The search of Kevin Glasgow was warrantless. Therefore, the Crown has the onus, on a balance of probabilities, to establish that the search was reasonable.

[417] If the police lacked reasonable and probable grounds to arrest Kevin Glasgow, the subsequent level three search would be unlawful.

[418] The reasonable grounds standard does not require a prima facie case for conviction or proof on a balance of probabilities: Canary, at para. 23. The test is met where, “based on all of the circumstances known to the officer, ‘credibly-based probability’ replaces suspicion”: Canary, at para. 23.

[419] The “the reasonable and probable grounds standard is a more demanding standard than the reasonable suspicion standard”: R. v. MacKenzie, 2013 SCC 50, at para. 85. Courts must be careful not to conflate these standards: R. v. Kalia, 2021 ONCJ 395, at para. 30.

[420] Whether reasonable and probable grounds exist is a “fact-based exercise dependent upon all of the circumstances of the case”: R. v. Bush, 2010 ONCA 554, at para. 54.

[421] In assessing the objective reasonableness of an arresting officer’s subjective belief, a court must not consider the facts known to an officer at the time of arrest “within individual silos”: Canary, at para. 30. The question is whether:

“…the facts as a whole, seen through the eyes of a reasonable person who has the same knowledge, training and experience as the arresting officer, make the arrest objectively reasonable”: Canary, supra, at para. 30.

[422] In this case, the grounds in support of the arrest of Kevin Glasgow by Officer Rorabeck included:

• Officer Rorabeck saw that Kevin Glasgow “had a step in the car” (by the open front passenger-side door).
• The handgun was in a satchel located in the foot well of the driver’s seat.

Conclusion – Section 8

[423] I accept that Officer Rorabeck subjectively believed that he had reasonable grounds to arrest Kevin Glasgow for a firearm offence.

[424] In considering whether, based on all of the information available to Officer Rorabeck at the time Kevin Glasgow was arrested, the grounds were objectively reasonable, the following factors should also be considered:

• Officer Rorabeck did not see Kevin Glasgow inside the black Mercedes. Officer Rorabeck saw that Kevin Glasgow “almost had a step in the car”.
• The satchel containing the handgun was found by police in the foot well in front of the driver’s seat. Officer Rorabeck saw Kevin Glasgow on the passenger side of the car.
• The handgun could not be seen without opening the satchel.
• Officer Rorabeck knew that Mr. Glasgow-Oliver and the man he was with (Kevin Glasgow) had just walked into the garage.
• Officer Rorabeck did not know if Kevin Glasgow was one of the people who had been seen by the police near the black Mercedes earlier in the evening.
• Kevin Glasgow was not observed by police carrying, reaching for, or touching the satchel.
• The black Mercedes was not registered to Kevin Glasgow.

[425] In my view, while Officer Rorabeck had reasonable grounds to suspect that Kevin Glasgow might have been implicated in the firearm offence, he did not have reasonable grounds to believe that Kevin Glasgow had knowledge of or control over the handgun in the satchel.

[426] As the police did not have reasonable grounds to believe that Kevin Glasgow had committed a criminal offence, his arrest and subsequent search were unlawful.

[427] I have concluded that Kevin Glasgow’s rights under s. 8 of the Charter were violated.

Section 24(2) – Kevin Glasgow

[428] I do not believe that the police set out to violate Kevin Glasgow’s s. 8 rights. However, conducting a level three search without having reasonable grounds to arrest Kevin Glasgow was a serious breach.

[429] As I already stated when addressing Mr. Glasgow-Oliver’s Charter application, there was a pattern of Charter-infringing conduct in this case.

[430] The first Grant factor militates in favour of exclusion.

[431] Given the nature of a level three search, the impact on Kevin Glasgow’s Charter protected interests under s. 8 was significant.

[432] But for the unlawful arrest, Kevin Glasgow would not have been subjected to a level three search, and the knife would not have been found. There was a strong causal connection between the discovery of the evidence and the Charter violation.

[433] The second Grant factor militates in favour of exclusion.

[434] Turning to the final prong of the Grant test. The impugned evidence is reliable and critical to the Crown’s case. Society has an interest in the prosecution of criminal offences.

[435] After balancing all of the Grant factors, it is my view that the admission of the knife would bring the administration of justice into disrepute.

L) CONCLUSION

[436] As the handgun has been excluded, I find Mr. Glasgow-Oliver not guilty on all of the counts.

[437] Having excluded the evidence required by the Crown to support a conviction on the charge of carrying a concealed weapon, I find Kevin Glasgow not guilty on count six.

[438] Finally, as stated by Ms. Serban, there is insufficient evidence upon which I could find, beyond a reasonable doubt, that Kevin Glasgow was guilty of counts one to five. I find him not guilty on those counts.

NORTH J.