ONTARIO COURT OF JUSTICE

CITATION: R. v. Hamidu, 2023 ONCJ 547

DATE: 2023 12 04

COURT FILE No.: 4911-998-19 11087 00

BETWEEN:

HIS MAJESTY THE KING

— AND —

RIYAD HAMIDU

Before Justice Marcella Henschel

Heard on September 7 and 8, 2023, October 20, 2023, and November 30, 2023

Written Reasons for Judgment on Charter Application and Trial[^1]

Released December 4, 2023

Vanessa Szirmak................................................................................ counsel for the Crown

Ricardo Golec...................................................... counsel for the accused Riyad Hamidu

HENSCHEL J.:

A. Overview and Summary of the Evidence

[1] Riyad Hamidu, is charged with a number of firearm offences including:

• Possession of a prohibited firearm for a purpose dangerous to the public peace, contrary to s. 88(2) of the Criminal Code;

• Possession of a prohibited firearm without licence, contrary to s. 91(3) of the Criminal Code;

• Carry a Concealed Weapon, contrary to s. 90(2) of the Criminal Code;

• Possession of a prohibited firearm without a licence, contrary to s. 92(3) of the Criminal Code;

• Possession of a loaded prohibited firearm without licence, contrary to s. 95(2) of the Criminal Code.

[2] Mr. Hamidu is also charged with two counts of disobeying a lawful order by failing to comply with a firearm prohibition under s. 51(1) of the YCJA, contrary to s. 127(1) of the Criminal Code; and two counts of failing to comply with a recognizance, contrary to s. 145(3) of the Criminal Code, by failing to comply with a curfew condition and by failing to keep the peace and be of good behaviour.

[3] It is alleged that on December 15, 2019, Mr. Hamidu attempted to enter the Attic Nightclub in Vaughan while in possession of a handgun. He was turned away from the club after a club security officer, Alison Taylor, discovered the gun concealed in his pants. Another club security officer, Alessandro DeMarche, reported the incident to two uniformed pay duty officers, PC Simmonds and PC Smilis, who were parked in a cruiser outside of the club. Mr. DeMarche provided a description to the officers of the man with the gun, including that he was wearing a brown sheepskin jacket with white collar, and pointed out the direction the man went. He said the man walked up a pedestrian walkway towards a parking lot.

[4] It is alleged the officers located Mr. Hamidu getting into a vehicle in the parking lot. He matched the description of the man with the gun. PC Simmonds drew his firearm, issued a police challenge, telling Mr. Hamidu to stop, he was under arrest. It is alleged Mr. Hamidu fled on foot and PC Simmonds and PC Smilis chased him.

[5] It is alleged that during the foot chase, Mr. Hamidu dropped a loaded handgun, later seized by PC Simmonds, and also discarded his brown jacket and removed his shoes. The foot chase lasted about four minutes before Mr. Hamidu stopped running and was arrested by PC Smilis at 1:38 a.m. for possession of a firearm.

[6] PC Azoulay arrived on scene at 1:40 a.m., shortly after PC Smilis arrested Mr. Hamidu. She took custody of Mr. Hamidu and placed him in her police car. Once he was in the police car, at 1:43 a.m. she informed him of the reason for his arrest and read him the right to counsel and cautioned him. He said he wanted to speak with a lawyer whose name he could not immediately recall and provided a partial phone number. PC Azoulay drove Mr. Hamidu to the police station, and they arrived at 1:56 a.m. At the police station Mr. Hamidu asked to speak to Christien Levien and provided a phone number for him. PC Azoulay conducted internet searches for Mr. Levien to confirm his number and that he was a lawyer.

[7] At 3:13 a.m., PC Azoulay left a message for Christien Levien. When Mr. Levien did not call back after 20 minutes, at approximately 3:33 a.m., PC Azoulay asked Mr. Hamidu if he would like to speak with another lawyer or duty counsel. Mr. Hamidu asked to speak to duty counsel and subsequently spoke with duty counsel for eight minutes between 3:35 and 3:43 a.m.

B. Positions of the Parties

Position of the Defence

[8] Mr. Hamidu, the Applicant, alleges that his Charter rights under s. 10(a), the right to be informed of the reason for arrest or detention, and s. 10(b), the right to counsel, were violated. He alleges that his s. 10(a) rights were violated because “the investigating officers failed to advise the Applicant from the outset that he was being investigated, and for what purpose.” The Applicant alleges that PC Simmonds failed to inform him of the reason for his arrest when he approached him and directed him to stop by saying “Stop Police.”

[9] The Applicant further alleges that the police failed to comply with their informational and implementational duties under s. 10(b) of the Charter. He alleges that his right to counsel was breached in three ways:

i.) The police did not provide him with the rights to counsel immediately. There was a delay of five minutes between his arrest and when PC Azoulay read him the right to counsel from her notebook;

ii.) The police did not provide him access to counsel “without delay”. He arrived at the police station a 1:56 a.m. but the police did not take steps to put him in contact with a lawyer until 3:13 a.m.; and

iii.) The police violated his counsel of choice by failing to take reasonable steps to contact his counsel of choice and steering him to duty counsel.

[10] As the remedy for the alleged Charter breaches, Mr. Hamidu seeks the exclusion of the gun and derivative evidence, including the results of DNA analysis from the firearm seized, or in the alternative, the exclusion of the DNA evidence under s. 24(2) of the Charter.[^2]

[11] Should the evidence be admitted, on the trial proper, Mr. Golec on behalf of Mr. Hamidu submits that the Crown has failed to establish identity beyond a reasonable doubt. He submits that the case is circumstantial and there are too many gaps in the evidence for the court to be satisfied beyond a reasonable doubt that Mr. Hamidu was in possession of the gun.

[12] Mr. Golec submits the Crown has not established that Mr. Hamidu was the man who attempted to enter the nightclub. He argues it was a busy night with many people in the area, the police did not see anyone in the pedestrian walkway after receiving the description from Mr. DeMarche, and they thought the man would be gone by the time they reached the parking lot.

[13] Mr. Golec further submits that the Crown has failed to establish that Mr. Hamidu was the person at the car in the parking lot and the person chased by the police. He argues that the police may have lost sight of the person they were chasing and I should have a reasonable doubt about the identity of the person chased because the police located a passport in another name near the discarded brown jacket.

[14] Finally, Mr. Golec submits that even if I find Mr. Hamidu was the person the police chased and that he dropped or discarded the gun, the Crown has not proven beyond a reasonable doubt that he was in “possession” of the gun. He submits that it may have been a “hot potato”, received from another person such that knowledge and control has not been established beyond a reasonable doubt.

[15] In respect of the allegation that Mr. Hamidu was carrying a firearm for a purpose dangerous to the public peace, Mr. Golec concedes that if I find Mr. Hamidu was the man who tried to enter the nightclub, and if I find he was in possession of a firearm, the only reasonable inference is that he carried the firearm for a dangerous purpose. However, he submits if I only find that he was in possession of the gun during the foot chase, there is insufficient evidence to establish that he possessed the firearm for a purpose dangerous to the public peace.

Position of the Crown

[16] In respect of the alleged Charter breaches, the Crown submits there was no breach of s. 10(a) of the Charter because Mr. Hamidu was informed of the reason for his arrest immediately upon his arrest or detention. He was not detained when he ran away and was not detained until arrested by PC Smilis. When PC Simmonds directed Mr. Hamidu to stop, he had no opportunity to inform him of the reason for his arrest because he fled. PC Smilis attempted to advise Mr. Hamidu of the reason for his arrest during the chase, telling him several times he was being arrested for possession of a firearm, and immediately informed of the reason for his arrest when he arrested him. The Crown further submits that in the totality of the circumstances Mr. Hamidu knew why the police were seeking to arrest him.

[17] The Crown further submits there was no breach of s. 10(b) of the Charter because PC Azoulay “immediately” informed Mr. Hamidu of his right to counsel following his arrest. Any delay was justified for officer and public safety reasons.

[18] The Crown submits there was no violation of Mr. Hamidu’s right to counsel of choice because PC Azoulay made reasonable efforts to contact Mr. Hamidu’s lawyer of choice, and, after leaving a message for his lawyer of choice, she properly provided him with the option of contacting another lawyer or duty counsel. Mr. Hamidu chose to speak with duty counsel and, after he did so, the police implementational duties were fulfilled.

[19] The Crown submits that if there was a violation of s. 10(a) or s. 10(b) the evidence should not be excluded under s. 24(2) because the evidence, including the gun and DNA evidence, was not “obtained in a manner” that violated the Charter. There is no nexus between the evidence obtained and the breaches.

[20] In the alternative, the Crown submits if there is a sufficient nexus to engage s. 24(2) of the Charter, Mr. Hamidu has not established on a balance of probabilities that it would bring the administration of justice into disrepute to admit the evidence. The Crown submits all three prongs of the Grant test support admission of the evidence: any violation was not serious, the violations had little impact on Mr. Hamidu’s Charter-protected rights, and the societal interest in the determination of the case on the merits strongly supports admission of the evidence.

[21] The Crown submits that if the evidence is admitted, it establishes beyond a reasonable doubt that Mr. Hamidu:

• was the man who attempted to enter the nightclub with a gun,

• was the man who ran from the police,

• was the man who discarded the loaded gun, and jacket, and

• was the man who was arrested by police a short distance from where the jacket was located.

[22] The Crown submits there is overwhelming evidence that Mr. Hamidu was in possession of a loaded prohibited firearm, a Glock handgun, and that he possessed the handgun for a purpose dangerous to the public peace. He was not licenced to possess the firearm and was in violation of his release order.

Procedure and Findings

[23] The parties agreed to hold a blended hearing. The evidence of each of the witnesses called during the trial, Alison Taylor, Anthony DeMarche, PC Simmonds, PC Smilis, PC Azoulay, and the Agreed Statement of Fact, applied to both the trial and the Charter application.

[24] The defence did not call evidence on the Charter application or the trial proper.

[25] I have concluded that while there was no violation of s. 10(a) of the Charter, there was a violation of s. 10(b) due to unexplained delay in implementing the right to counsel. Assuming that gun and DNA evidence was “obtained in a manner” that infringed a Charter right, applying the three-pronged test established in Grant, the Applicant has failed to establish on a balance of probabilities that the evidence should be excluded under s. 24(2) of the Charter. The breach was not serious, had little impact on Mr. Hamidu’s Charter-protected interests, and the public interest in the determination of the case on the merits weighs heavily in favour of admission.

[26] I am satisfied the Crown has proven the essential elements of each of the offences beyond a reasonable doubt. There is overwhelming evidence that Mr. Hamidu was in possession of the loaded prohibited firearm, that he was not authorized or licenced to possess the firearm, and that that he carried it for a purpose dangerous to the public peace. There is overwhelming evidence that he was in breach of his release order. These are my reasons.

C. Summary of the Facts

[27] Alison Taylor, a security guard at the Attic Nightclub, testified that on December 15, 2019, at around 1:30 a.m., she did a pat down search of a male party who was seeking entry to the club. She felt what she believed was the handle of a gun near his inner thigh/groin area, tucked into the opening of his boxer brief.

[28] She told the man she could not let him enter the club with the item because of what “it” was and told him to put “it” in his car. The man tried to convince her to let him in with the item and offered her money. He said she should allow him to have “it” inside, told her to let it be, and said she could be compensated to let him in. She told him he could not enter the club with “it” and instructed him to put it in his car.

[29] Ms. Taylor said the man and his friend left the club and turned to the left after leaving. She told her supervisor, Alessandro DeMarche about what happened. She said the man with the gun had short hair, was of African American descent, and was wearing a winter jacket and dark jeans.

[30] Alessandro DeMarche said he was working at the door with Ms. Taylor and saw the back-and-forth conversation between her and the man. He stepped in and told the man and his friend to go back to their car and leave whatever they had in the car. The two men left the club and Ms. Taylor told him the man had a weapon that was most likely a gun. After they left, he saw them turn left and walk through the pedestrian walkway between the Attic club and Boston Pizza, towards the parking lot north of the club.

[31] Mr. DeMarche testified that immediately after the men left, he told the police officers parked outside the club that he turned away a man with a gun from the Attic club.

[32] PC Simmonds and PC Smilis were working as paid-duty uniform police officers and were parked in a marked police cruiser directly outside the entrance to the Attic club. Their police vehicle did not have an in-car camera (ICC) recording system.

[33] Both officers testified that it was around 1:33 a.m. when Mr. DeMarche approached them and told them he turned away a man with a gun from the Attic Nightclub. PC Simmonds said Mr. DeMarche came to the passenger side of the police vehicle, where he was located, while PC Smilis said Mr. DeMarche came to his side of the vehicle, the driver’s side. I find the discrepancy in their evidence regarding the side of the vehicle Mr. Demarche came to is a minor discrepancy which does not undermine either officer’s credibility or reliability. The events happened almost four years ago, and the side of the car approached by Mr. Demarche would not have been an important feature at the time.

[34] PC Simmonds testified that Mr. DeMarche described the man as a tall guy with dark skin and a thin build, wearing a brown sheepskin jacket with a white collar. PC Simmonds agreed he did not refer to the collar in his notes but said he recalled it because he was “old school” and remembered that type of clothing because he had one himself.

[35] PC Smilis testified that Mr. DeMarche described the man as a black male wearing a brown jacket.

[36] Both officers testified that Mr. Demarche pointed out the direction the man went when he left the club, indicating that he walked north down the pedestrian walkway between the Attic Nightclub and Boston Pizza towards the parking lot.

[37] PC Smilis testified that he looked down the walkway but did not see anyone and he was not expecting to find the man when he did not see anyone in the walkway.

[38] I find that PC Simmonds and PC Smilis immediately drove around the Attic building to the north parking lot. PC Simmonds said they reached the parking lot within a minute of receiving the information from Mr. DeMarche. PC Simmonds said when they got to the parking lot, he saw a tall male with a thin build wearing a brown jacket with a white collar entering the passenger side of a vehicle and he immediately believed it was the man with the gun described by Mr. DeMarche.

[39] PC Smilis testified that when they reached the parking lot, he saw two black males walking in the parking lot. One was wearing a brown jacket and looked like he was about to enter the passenger side of a vehicle.

[40] PC Simmonds testified that when he was about 20 feet from the man with the brown jacket, he got out of the police car, drew his sidearm, and said “Police don’t move, police don’t move, you are under arrest.” The man immediately turned and ran eastwardly towards the closed AMC cinemas.

[41] At court, four years after the events, Mr. DeMarche could not remember details about the man’s clothing and did not remember providing details about the coat to PC Simmonds. PC Smilis did not note or recall receiving information about the collar, and PC Simmonds did not make a specific note about the collar in his notebook. I accept PC Simmonds’ evidence that Mr. DeMarche described the jacket to him as a brown sheepskin jacket with a white collar. I accept that the description was significant to him because he owned a similar jacket and he connected with the description at the time. At the time the officers spoke to Mr. DeMarche the description would have been fresh in Mr. DeMarche’s mind and it makes sense that Mr. DeMarche would provide the officer’s detail about the clothing and that the officer’s would ask for detail about the clothing to assist them to locate the man.

[42] I accept that the description PC Simmonds received, including the white collar, caused PC Simmonds to immediately believe the man at the car was the man who had been at the club. He testified that when he saw the man wearing the brown jacket with the white collar he immediately said, “that is the guy”. He testified that it was very clear in his mind, and he will never forget that the matching description prompted him to immediately open his passenger door and direct the man to stop. I accept PC Simmonds’ evidence about the description provided to him and that he connected the description to a jacket he owned.

[43] PC Smilis testified that when PC Simmonds exited the police vehicle and issued the police challenge, the man in the brown jacket ran off on foot. PC Smilis estimated that when he stopped the police car the man was five or six feet from PC Simmonds. He believed the man had a firearm on him because of the information they had received.

[44] I find that the discrepancy between the evidence of the two officers about the distance between them and the subject when they initially approached, approximately 20 feet versus five or six feet, is not an important inconsistency. The events were unfolding very quickly, and it was a matter of moments before the man fled and the positioning of everyone quickly changed. The officers had little opportunity to consider or reflect on the distance between them and the subject when the events took place.

[45] PC Simmonds drew his firearm and issued the police challenge to get the subject to stop and so he did not make any sudden moves. Drawing his firearm was in accordance with his police training for situations where an individual may have a weapon and there is danger of bodily harm or death.

[46] When the man turned and ran, PC Simmonds pursued him on foot for a short distance, yelling for him to stop. PC Simmonds was losing ground because the man was faster than him and after a short distance, at the edge of the grassy area east of the AMC theatre, he stopped chasing him. He said the man continued running and he could see him running eastwardly towards an elevated area in front of the closed AMC theatre. The man ran south in front of the AMC theatre and then turned around and ran back north along the east side of the AMC building. PC Simmonds said he had a clear view of the man because he was running along the elevated area in front of the lit AMC theatre building. He was yelling for the man to stop and pointing his firearm at him.

[47] PC Simmonds testified that after he stopped chasing the man, he looked down and saw a firearm right in front of him on the ground. It was immediately east of the grassy area, as depicted in Exhibit 2A, directly along the path of travel taken by the man as he fled. PC Simmonds said that he told PC Smilis to run after the man.

[48] PC Smilis, testified that PC Simmonds began the foot chase at approximately 1:34 a.m. I accept that the officers arrived in the parking lot area and saw the man at approximately 1:34 a.m. and the foot chase began moments after they arrived at the parking lot.

[49] After the man turned and ran, PC Smilis initially pursued PC Simmonds and the man with the police cruiser, driving east through the parking lot with his lights and siren activated. When he reached the grassy area, he drove over the curb and through it. When he was partway through the grassy area, the man had just reached the adjacent paved pathway. The man was illuminated by the cruiser lights and PC Smilis saw him drop something from his waistband onto the pathway.

[50] PC Smilis got out of the cruiser and continued chasing the man on foot. He told the man several times he was under arrest for possession of a firearm. PC Smilis said when the man reached the pathway east of the grassy area, he initially ran southbound, then ran eastwards towards the closed cinemas, and then changed direction and ran north along the west side of the closed cinemas. The man continued running north, crossed the street into a parking lot, and ran diagonally across the parking lot. PC Smilis said the man took off his jacket while running across the parking lot and threw it near some bushes. The man subsequently removed his running shoes, picked them up, and continued running in his socks until he stopped running near Interchange Way.

[51] PC Smilis testified that when the man stopped running, he was right behind him. He drew his taser and brought the man to the ground, placing him under arrest at approximately 1:38 a.m. PC Smilis said that he never lost sight of the man during the foot chase. The total duration of the foot chase was approximately four minutes, between 1:34 a.m. and 1:38 a.m.

[52] There is no dispute that the man arrested by PC Smilis was Mr. Hamidu.

[53] PC Smilis testified that he advised Mr. Hamidu he was under arrest for possession of a firearm. He testified that he had previously informed the man on two to four occasions during the chase that he was under arrest for possession of a firearm.

[54] After placing him under arrest, PC Smilis radioed his location and waited for assistance. He maintained physical control of Mr. Hamidu with his taser in one hand and held him with the other until officers arrived to assist.

[55] PC Smilis testified that he did not read Mr. Hamidu the rights to counsel and caution prior to the other officers arriving because he did not have free hands available to do so and could not safely use his notebook to read the rights to counsel at that time. I accept his evidence that it would have been unsafe for him to attempt to utilize his notebook to read the rights to counsel at that time.

[56] PC Smilis testified he first learned that PC Simmonds had located a firearm when he walked back to his cruiser after Mr. Hamidu was arrested.

[57] When PC Azoulay and PC Chang arrived, Mr. Hamidu was searched incident to arrest and then placed in the back of PC Azoulay’s police car. PC Smilis estimated that approximately one to two minutes passed between when he took physical control of Mr. Hamidu and when other officers arrived. I accept his evidence regarding this timeline.

[58] PC Azoulay’s initial interactions with Mr. Hamidu were captured on the ICC recording system. PC Azoulay arrived at the scene of the arrest at 1:40 a.m. Mr. Hamidu was searched incident to arrest and PC Azoulay placed the property obtained from him during the search into an evidence bag at 1:41:52 a.m. She took custody of Mr. Hamidu and placed him in her cruiser. Mr. Hamidu was breathing heavily. He was not wearing shoes or a jacket.

[59] At 1:42 a.m. she informed Mr. Hamidu he was under arrest for possession of a firearm. She read him the rights to counsel at 1:43 a.m. Mr. Hamidu replied that he wanted to speak with his lawyer, whose name he could not recall. He gave PC Azoulay a partial phone number but was continuing to breath heavily and could not remember the last four digits of the number.

[60] At 1:45 a.m. PC Azoulay repeated that he was under arrest for possession of a firearm and read him the caution. He indicated he understood.

[61] At 1:49 a.m. PC Azoulay left the scene of the arrest and drove Mr. Hamidu to the police station. En route to the station Mr. Hamidu vomited in the back of the cruiser. They arrived at the police station at 1:56 a.m.

[62] Once at the police station, PC Azoulay waited until the booking sergeant was available, and at 2:00 a.m. Mr. Hamidu was removed from the police car to be booked. PC Azoulay did not note how long the booking procedure lasted. She said the time required for the booking process varies, but it usually takes less than half an hour. Mr. Hamidu vomited during the booking process.

[63] At the police station, Mr. Hamidu told PC Azoulay that Christian Levien, from Brampton, was his counsel of choice and provided a complete phone number. PC Azoulay did not note the exact time she received the lawyer information or the exact time that Mr. Hamidu was placed in the cells. She believed he provided the information about his lawyer at the end of the booking process or when he was placed in the cells.

[64] PC Azoulay testified that after she received the information about the lawyer, she did an open-source query to confirm that Christien Levien was a lawyer. She said she could not find the name with the spelling provided.

[65] At 3:13 a.m., one hour and 17 minutes after Mr. Hamidu arrived at the police station, PC Azoulay called the phone number provided by Mr. Hamidu for Mr. Levien and left a voice mail message. She could not recall what she heard on the voice message at the phone number she dialled.

[66] At 3:33 a.m., approximately 20 minutes after leaving the message, PC Azoulay told Mr. Hamidu she had not yet heard from his counsel of choice and asked him if he wanted to speak with another lawyer or duty counsel. He said he would speak with duty counsel and PC Azoulay contacted duty counsel. Mr. Hamidu spoke with duty counsel, Michael Kim, between 3:35 a.m. and 3:43 a.m. After Mr. Hamidu spoke with duty counsel, PC Azoulay asked him if he was satisfied with the phone call, and he said he was.

[67] The Agreed Statement of Fact included the following:

• the gun seized, a Glock, Model 27, semi-automatic handgun, is a prohibited firearm as defined by the Criminal Code. It was loaded with 9 cartridges of .40 calibre Smith and Wesson ammunition in a detachable cartridge magazine.

• On May 29, 2020, DC Hoekstra took DNA swabs from the grip and slide of the firearm. The swabs were submitted to the Centre of Forensic Science (CFS), and DNA suitable for comparison was found on the grip and slide of the firearm involving a mixture of one to four people.

• A DNA warrant was executed to obtain a sample of Mr. Hamidu’s DNA. The CFS compared the DNA samples and confirmed that the DNA found on the grip and slide of the firearm was a match to Mr. Hamidu, who could not be excluded as a contributor to Mixture 1 from the Glock grip and slide.

• The CFS report indicates that “the STR DNA results are estimated to be 1.6 billion times more likely if they originate from Riyad Hamid and three unknown people than if they originate from four unknown people unrelated to Riyad Hamid”.

• Riyad Hamidu did not have a firearm registration certificate, nor did he possess any authorization or licence permitting him to possess the firearm.

• Mr. Hamidu was bound by a weapons prohibition order pursuant to s. 51(1) of the YCJA from October 20, 2015, for a period of 15 years.

• Mr. Hamidu was bound by a recognizance of bail from October 15, 2018, for charges of Obstruct Peace Officer and Fail to Comply Recognizance x2 with conditions: to Keep the peace and be of good behaviour and to remain in residence between the hours of 8 p.m. and 6 a.m. except for medical emergencies, employment, and or school and counselling. At the time of the incident none of the exceptions applied.

[68] A brown sheepskin jacket with a white collar was seized from the parking lot area north of the AMC cinemas, not far from where Mr. Hamidu was arrested. A passport in the name of Marlow Roberts was located approximately 5 metres from the jacket.

D. Ruling on the Charter Applications

D.1 No Breach of Section 10(a) – Right to Be Informed of the Reasons for Arrest

[69] As explained in more detail below, I am satisfied that Mr. Hamidu was the man who attempted to enter the Attic Nightclub with a gun, was the man PC Simmonds saw getting into a car in the parking lot and directed to stop, and was the man who PC Simmonds and PC Smilis chased until he was arrested by PC Smilis at 1:38 a.m. on December 15, 2019.

[70] Section 10(a) of the Charter provides: “Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor.” The purpose of the provision is to ensure that a person “understands generally the jeopardy” in which he or she finds himself or herself.

[71] The right to be informed of the reason for an arrest or detention is inextricably tied to the right to counsel under s. 10(b) of the Charter. An accused must be provided with sufficient information to be able to appreciate the extent of his or her jeopardy, to make meaningful choices regarding the rights to counsel and silence, and to instruct counsel.

[72] Section 10(a) rights, once triggered, must be implemented immediately. However, like s. 10(b), the requirement to immediately advise an accused person of the reasons for arrest under s. 10(a), is subject to officer and public safety concerns.[^3]

[73] There is no merit to the assertion that Mr. Hamidu’s s. 10(a) rights were violated. The police obligation to inform an individual of the reasons for an arrest or detention arises on arrest or detention. When PC Simmonds initially directed Mr. Hamidu to stop and told him he was under arrest, neither an arrest nor detention had crystallized because he immediately fled. PC Simmonds had no opportunity to inform him of the reason he was attempting to arrest him.

[74] This case is distinguishable from Nguyen[^4], one of the cases referenced by the Applicant. In Nguyen, the police were investigating a marijuana grow operation when Mr. Nguyen arrived at the home and pulled into the driveway. After seeing police, Mr. Nguyen began backing out of the driveway. As he did so a police officer approached him and stated, “Police Stop”. He stopped and the officer asked him if he lived at the home. He confirmed he did. His inculpatory utterance was relied upon by the Crown to prove his connection to the home at trial.

[75] The trial judge found a violation of s. 10(b) but admitted the evidence. On appeal, the Court of Appeal held that Mr. Nguyen’s rights under s. 10(a) and s. 10(b) were violated. The Court emphasized that the issue of whether Mr. Nguyen was detained was not before them on appeal, and, assuming he was detained, there was no impediment to the officer’s ability to quickly inform him of the reason for the stop before asking him any questions concerning the residence.[^5]

[76] In contrast, in this case there were two clear impediments to PC Simmonds informing Mr. Hamidu of the reason for his arrest, i.) his flight and ii.) concerns for officer and public safety.

[77] Even if a detention had occurred momentarily because of PC Simmonds’ direction to Mr. Hamidu to stop, any delay in PC Simmonds stating the reason for the arrest was justified for reasons of officer and public safety. As PC Simmonds was exiting the police vehicle, he drew his firearm and told Mr. Hamidu to stop, telling him he was under arrest. He believed Mr. Hamidu was armed with a handgun, something that posed an immediate threat to him and the public. It could cause serious harm to himself, PC Smilis, the person fleeing, or innocent bystanders. Mr. Hamidu was non-compliant with the police direction and fled. It was a volatile and dangerous situation. To suggest that PC Simmonds violated s. 10(a) by failing to explain the reasons for the attempted arrest while he was pursuing an armed man in a dangerous circumstance would be to interpret s. 10(a) in a manner that would render it impossible for police officers to safely carry out their duties.

[78] The Applicant, relying on Evans[^6], an Ontario Court of Justice decision of Justice Stribopoulos, submitted that s. 10(a) rights must be implemented immediately without exception, even for urgency or danger. This is an incorrect statement of the law.

[79] The law recognizes that serious concerns for officer or public safety may justify a delay in informing an individual of the reasons for their arrest. Recently, in Pera[^7], the Ontario Court of Appeal confirmed this principle. In Pera, a police officer stopped the accused to investigate whether he had a gun. Due to officer safety concerns, the officer did not tell the accused the real reason for his detention, but instead told him he was investigating him for a possible breach of probation. The trial judge held that officer safety concerns justified the use of a ruse and a brief delay in informing the appellant of the true reason for the stop.

[80] On appeal, the Court of Appeal found there was a s.10(a) violation but held that it did not occur until the accused was out of his car and the officer confirmed he did not have a weapon on his person. The Court of Appeal accepted that officer safety concerns can justify a delay in informing the accused of the reasons for his or her arrest.

[81] In Evans, Justice Stribopoulos did not decide that officer safety or public safety could not justify delay in advising a detainee of the reasons for their arrest. Evans was a drinking and driving case involving a roadside stop. Justice Stribopoulos found at the time of the stop the officer did not inform the accused of the reason for his stop. He held that while the obligation of the police to inform a detainee of the right to counsel at the roadside is suspended in the context of impaired driving investigations because of the impracticality of implementing right to counsel at the roadside, there is no comparable override at the roadside for s.10(a) because there is nothing impractical about the police telling a driver when they stop why they have been detained.[^8]

[82] There was no violation of s. 10(a) of the Charter. When PC Simmonds told Mr. Hamidu to stop, he fled. I find as a fact that Mr. Hamidu was not detained or arrested when he fled so his s. 10(a) right to be informed of the reason for his arrest was not triggered.

[83] Even if Mr. Hamidu was detained, PC Simmonds did not have an opportunity to advise him of the reason for his arrest because of the Applicant’s flight. PC Simmonds was justified in delaying providing the reasons for the arrest for officer and public safety.

[84] Mr. Hamidu was informed of the reasons for his arrest without delay in compliance with s. 10(a) of the Charter. I find as a fact during the foot chase PC Smilis told Mr. Hamidu several times that he was under arrest for possession of a firearm. When Mr. Hamidu stopped running and was placed under arrest by PC Smilis at 1:38 a.m., PC Smilis immediately told him the reason for his arrest. After he was searched and placed in the back of PC Azoulay’ s police car at 1:42 a.m. PC Azoulay, reiterated the reason for his arrest

D.2 Section 10(b) – General Principles

[85] In Bartle the Supreme Court of Canada made clear that upon making an arrest or effecting a detention s. 10(b) requires the police:

i.) To inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

ii.) If a detainee has indicated a desire to exercise this right to provide the detainee with a reasonable opportunity to exercise the right; and

iii.) To refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity.[^9]

Informational Duties

[86] The first duty is the informational component of the right to counsel. The second and third duties are the implementational components of the right to counsel which are triggered when a detainee indicates a desire to exercise his or her right to counsel.[^10] Failure to comply with either of the components of the right to counsel frustrates the purpose of s. 10(b) and results in a breach of the detainee’s rights.

[87] Ordinarily the police must inform the detainee of the right to counsel immediately upon arrest or detention, subject to concerns for officer or public safety.[^11] The duty is immediate because a person who is detained is vulnerable to the exercise of state power and in a position of legal jeopardy. A detainee is in immediate need of legal advice to protect his or her right against self-incrimination and to assist him or her in regaining their liberty.[^12] Section 10(b) aims to ensure that a detainee has an opportunity to be informed of their rights and obligations under the law, and to obtain advice on how to exercise those rights and perform those obligations.[^13]

[88] In addition, the right to counsel provides an important psychological “lifeline” through which a detained person will 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”.[^14]

[89] While the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention, it is subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter.[^15]

Implementational Duties

[90] The duty to facilitate access to a lawyer arises immediately upon the detainee’s request to speak to a lawyer. Once a detainee requests to speak to a lawyer, the police have a duty, with limited exceptions, to facilitate access “without delay”.[^16]

[91] In Taylor, the Supreme Court of Canada held that the police have a constitutional obligation to facilitate contact with counsel at the first reasonably available opportunity.[^17]

[92] There may be practical impediments to the police’s ability to facilitate access to counsel, such as a lack of means to contact counsel, or lack of privacy. Justifications for delay may be premised on a case specific risk such as the destruction of evidence, public safety, police safety, medical concerns, or some other urgent or dangerous circumstance. However, any delays must be reasonably necessary.[^18]

[93] Where there has been a delay in facilitating the requested access to a lawyer, the Crown bears the burden of proving that the delay was reasonable in the circumstances.[^19]

D.3 Timeline

[94] I am satisfied that the police fulfilled their informational duties under s. 10(b) of the Charter. However, the Applicant has established a violation of Mr. Hamidu’s s. 10(b) right to counsel because the police did not implement the right to counsel “without delay”.

[95] I find as a fact that the following is the timeline in respect of the arrest, provision of the rights to counsel, and facilitation of the rights to counsel:

• 1:38 a.m. PC Smilis placed Mr. Hamidu under arrest for possession of a firearm;

• 1:40 a.m. PC Azoulay arrived at the scene of the arrest;

• 1:41 a.m. Mr. Hamidu is searched incident to arrest;

• 1:42 a.m. Mr. Hamidu is placed into PC Azoulay’s cruiser;

• 1:42 a.m. PC Azoulay advised Mr. Hamidu he is under arrest for possession of a firearm;

• 1:43 a.m. PC Azoulay read Mr. Hamidu the rights to counsel, and he advised he wanted to speak to a lawyer. He provided a partial number but could not recall the name of the lawyer.

• 1:45 a.m. PC Azoulay repeated to Mr. Hamidu that he was under arrest for possession of a firearm and read him the primary caution from her notebook.

• 1:49 a.m. PC Azoulay left the scene of the arrest and drove Mr. Hamidu to the police station, arriving at 1:56 a.m.

• 1:56 a.m. to 2:00 a.m. PC Azoulay and Mr. Hamidu waited for the booking sergeant to be available.

• 2:00 a.m. Mr. Hamidu is removed from the cruiser and taken to the booking area, booked, and then placed in the cells. Mr. Hamidu advised PC Azoulay that his lawyer is Christien Levien and provided a complete phone number.

• P.C. Azoulay did an open-source query to confirm Christien Levien was a lawyer.

• 3:13 a.m. P.C. Azoulay called the number for Christien Levien provided by Mr. Hamidu.

• 3:33 a.m. P.C. Azoulay told Mr. Hamidu she had not yet heard from his lawyer of choice and asked if he wanted to speak with another lawyer or duty counsel. Mr. Hamidu asked to speak to duty counsel.

• 3:35 a.m. to 3:43 a.m. Mr. Hamidu spoke with duty counsel and told PC Azoulay he was satisfied with the phone call.

D.4 There was no Violation of the Informational Duties under s. 10(b)

[96] Mr. Hamidu alleges that the police violated his s. 10(b) rights by failing to provide him with the right to counsel “immediately” upon arrest. There is no merit to this claim.

[97] The total period between Mr. Hamidu’s arrest and the provision of the rights to counsel, 1:38 a.m. to 1:43 a.m., was five minutes. During the first two minutes following arrest, PC Smilis was alone at the roadside with Mr. Hamidu. I accept his uncontradicted evidence that he was holding Mr. Hamidu with one hand and had his taser in the other hand. I accept his evidence that he did not feel he could safely read Mr. Hamidu the rights to counsel during the brief period that he was waiting for other officers to arrive.

[98] Mr. Hamidu had already attempted to escape arrest by fleeing from the police. He was only apprehended after a foot chase. PC Smilis did not have a police cruiser in which to secure Mr. Hamidu. He had reason to believe that Mr. Hamidu may be in possession of a firearm. PC Smilis was entitled to delay the provision of the rights to counsel until other officers arrived for reasons of officer and public safety. It was not reasonable to expect PC Smilis to get out his notebook and begin reading Mr. Hamidu the rights to counsel in those moments and in those circumstances.

[99] Once PC Azoulay arrived on scene, within three minutes Mr. Hamidu was searched incident to arrest, and placed in her cruiser. At 1:43 a.m. PC Azoulay immediately informed Mr. Hamidu again of the reason for his arrest and read him the rights to counsel and the caution from her notebook.

[100] There was no delay in this case. Mr. Hamidu was provided with the right to counsel immediately. If the provision of the rights to counsel in these circumstances was not immediate, the brief delay in provision of the rights to counsel was entirely justified by concerns for officer and public safety.[^20]

D.5 There was a Violation of the Implementation Duty of the Right to Counsel

[101] In respect of the implementation of the rights to counsel, the first reasonable opportunity the police had to implement the rights to counsel was after Mr. Hamidu was taken to the police station. Once at the police station, it was necessary for the police to “book” Mr. Hamidu. PC Azoulay waited a few minutes for the booking sergeant to become available to begin the booking process. Mr. Hamidu was removed from the cruiser to start the booking process at 2:00 a.m.

[102] PC Azoulay was unable to remember how long the booking process lasted but testified that generally it takes less than half an hour. On that basis, at the latest the booking would have been completed at 2:30 a.m. However, PC Azoulay did not place a call to Mr. Hamidu’s lawyer until 3:13 a.m., 43 minutes later.

[103] There was no suggestion that the police should have facilitated Mr. Hamidu’s contact with counsel at the roadside and there is no evidence that it would have been possible for them to do so, or that they could have provided the necessary privacy for contact with counsel.[^21] I am satisfied that the delay associated with the time necessary to transport Mr. Hamidu to the police station, and for him to be paraded, booked, and lodged in the cell was necessary.

[104] However, the call to Mr. Hamidu’s counsel of choice should have been placed “immediately” after the booking process was complete. While PC Azoulay’s internet searches to confirm Mr. Levien’s number and to confirm he was a lawyer may have justified a brief further delay, the searches PC Azoulay described making do not adequately explain the approximately 43-minute delay in placing the call to counsel. The call should have been placed earlier, and the delay and lack of documentation by PC Azoulay of what was happening between 2:00 a.m. and 3:13 a.m. reflect a lack of sufficient appreciation by PC Azoulay of the importance of facilitating Mr. Hamidu’s contact with counsel “without delay”.

[105] As in Desilva, having suspended the right to counsel prior to the Applicant’s placement in the station cell for him to be transported to the station and booked, it was incumbent on the officers to facilitate access to counsel as soon as the circumstances reasonably permitted.[^22] As indicated above, no sufficient explanation was provided for the approximately 43-minute delay that occurred after the Applicant was placed in the cell and I find that this delay in providing Mr. Hamidu access to counsel constituted a violation of his s. 10(b) Charter right to counsel.[^22]

D.6 There was No Violation of the Right to Counsel of Choice

[106] Included in the s. 10(b) right to counsel is the right to counsel of choice.[^23] It is important than an individual who is detained or arrested and under the control of the police have a reasonable opportunity to receive legal advice, not from any lawyer, but from someone they know and trust if there is a specific lawyer they wish to contact.

[107] Where an individual is in police custody and has identified a lawyer that he or she wishes to contact, the police have the obligation to take reasonable steps to contact the individual’s counsel of choice. The police must diligently pursue contact with counsel of choice.[^24]

[108] In Willier the Supreme Court made clear that where a detainee opts to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. However, the right to counsel of choice is not absolute at the initial investigative stage. If counsel of choice “cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer”. [^25]

[109] Applied to the facts in this case, Mr. Hamidu was entitled to a reasonable opportunity to contact his chosen counsel, Christien Levien, prior to police questioning. When Mr. Levien did not immediately respond to the message left by PC Azoulay, Mr. Hamidu had the right to refuse to speak with other counsel and wait a reasonable amount of time for his lawyer of choice to respond.

[110] Had the police left a single message for counsel of choice and, when counsel did not return the call, ended their efforts there, as in Jarrett, the conduct would have been unreasonable and would have constituted a violation of s. 10(b). However, that is not what happened. When there was no return phone call after approximately 20 minutes, PC Azoulay took further steps to implement Mr. Hamidu’s right to counsel.[^26]

[111] She did not breach Mr. Hamidu’s constitutional rights by offering him the opportunity to speak with duty counsel. PC Azoulay did not suggest that Mr. Hamidu could not wait to speak to Mr. Levien. PC Azoulay offered an alternative that would afford Mr. Hamidu the opportunity to speak with counsel right away. This was in keeping with her duty to ensure Mr. Hamidu was aware of the availability of immediate and free legal consultation.[^27]

[112] Duty counsel exists for the very purpose of providing individuals, such as the Applicant, with the ability to obtain a form of initial summary legal advice, irrespective of financial means or of time of day or night. In Bartle, the majority of the Supreme Court stated as follows:

In Brydges, the majority drew a careful distinction between Legal Aid plans, which provide longer term legal assistance to accused persons who meet prescribed financial qualifications, and “duty counsel”, which is a form of initial, summary legal advice available to all detainees upon request, irrespective of financial means or of time of day or night…

…Often duty counsel bridge the gap between arrest and the retention of a lawyer who will deal more fully with a case. Although in an administrative sense, Legal Aid and duty counsel tend to be part of the same overall program run by the provinces as part of their constitutional responsibility for the administration of justice, Legal Aid and “Brydges duty counsel” ….represent two distinct forms of legal service [Emphasis added].[^28]

[113] PC Azoulay did not tell Mr. Hamidu that he could not wait to speak to his counsel of choice and there was no evidence tendered to suggest that her conduct caused Mr. Hamidu to believe he could not wait longer to speak to Mr. Levien or that he had no choice other than to speak with duty counsel. There was no evidence tendered that established that Mr. Hamidu misunderstood his rights.

[114] When presented with alternative options to exercise his right to counsel, Mr. Hamidu asked to speak with duty counsel and raised no concerns after doing so. If Mr. Hamidu did not want to speak to duty counsel and wanted to wait longer to speak with his lawyer, it was incumbent on him to say so, and to tell PC Azoulay. [^29]

[115] Unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to proceed with an investigation.[^30]

[116] The factual circumstances are similar to McCrimmon, where the Supreme Court of Canada found no s. 10(b) violation. In McCrimmon the accused initially asked to speak with a specific counsel of choice. The officer called the lawyer’s number but did not reach the lawyer and left a message. Mr. McCrimmon told the officer that he did not know if the lawyer would call back, and that he was the only lawyer he knew. The police officer asked if he would like to call a Legal Aid lawyer, and he responded that he would, but said that he preferred to speak to his specific lawyer. The officer contacted duty counsel and Mr. McCrimmon spoke privately with duty counsel for five minutes. No further attempts were made by the police to locate the lawyer’s number or to contact the lawyer. During the course of the subsequent interview McCrimmon stated that he did not want to discuss the case until he had spoken with his lawyer, and at another point reiterated his request to speak with his own lawyer. The officer declined these requests, stating that he had already exercised his right to counsel by speaking with duty counsel and had expressed satisfaction with the advice received. McCrimmon did not dispute this but asked to be taken back to his cell. The interview continued during which McCrimmon emphasized the absence of his lawyer. He subsequently admitted his involvement in a series of offences against several women.

[117] Against this factual backdrop a majority of the Supreme Court of Canada concluded that there was no violation of the accused’s right to counsel of choice finding that “While Mr. McCrimmon expressed a preference for speaking with Mr. Cheevers, the police rightly inquired whether he wanted to contact Legal Aid instead when Mr. Cheevers was not immediately available. Mr. McCrimmon agreed, exercised his right to counsel before the interview began, and expressed satisfaction with the consultation”.[^31]

[118] The issue was addressed recently in Veliz[^32] by the Ontario Court of Appeal. In Veliz, the accused initially spoke with duty counsel, and was re-arrested on new charges and, after being provided rights to counsel on the new charges, requested to speak to counsel of choice. After phoning the appellant’s family to obtain contact details, the police officer left voicemails with the appellant’s counsel of choice at 1:08 a.m. and 1:31 a.m., and emailed the lawyer at 1:14 a.m. Immediately prior to placing the second phone call, the police officer asked the appellant if he would like to speak with duty counsel if the officer was unable to contact counsel of choice. The appellant replied, “you know I’m fucked so whatever I can get, yeah.” The appellant then spoke with duty counsel for a few minutes shortly after 2:00 a.m., said he was satisfied with the advice he had received, and thereafter refused to speak to police.

[119] The accused submitted that the right to counsel of choice was violated and that there was no “waiver” of right to counsel. The Ontario Court of Appeal held there was no violation of s. 10(b), and stated as follows:

A difficulty with this submission is that this court has never held that the circumstances described above constitute waiver of s. 10(b) rights, rather than a valid exercise of them by choosing to speak with duty counsel. The trial judge made no error in concluding that, consistent with R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, the appellant had been provided with a reasonable opportunity to contact counsel of choice before being questioned by police. An additional difficulty for the appellant is that the issue of waiver was not argued at trial, and accordingly there is no evidence from the appellant and no findings as to whether the appellant believed that he had no option other than to speak with duty counsel. Accordingly, this ground of appeal has not been established.[^33]

[120] PC Azoulay did not interfere with Mr. Hamidu’s right to counsel of choice by informing him of and facilitating access to duty counsel. She was required to take steps to facilitate his contact with counsel. Mr. Hamidu was not told that duty counsel was his only choice, or that he could not wait to speak to Mr. Levien, and there is no evidence he believed he had no choice but to speak to duty counsel. There is no evidence that his decision to speak with duty counsel was the product of coercion.

[121] The police had an informational duty to ensure that Mr. Hamidu was aware of duty counsel and compliance with that duty did not interfere with his right to counsel of choice. As in McCrimmon, Mr. Hamidu was properly presented with an alternative route by which he could obtain legal advice, an option he voluntarily chose to exercise, and after speaking with duty counsel he made no indication that he was not satisfied with his opportunity to contact counsel.[^34]

[122] The applicant has failed to establish on a balance of probabilities that there was a violation of the right to counsel of choice under section 10(b) of the Charter.

D.7 Section 24(2)

24(2) General Principles

[123] The s. 10(b) violation I have found relates to the approximately 43-minute period of unexplained delay in the implementation of the rights to counsel, the period after Mr. Hamidu’s booking was complete at approximately 2:30 a.m. until the call was placed to counsel of choice at 3:13 a.m. Assuming that the gun and fingerprint evidence were “obtained in manner” that infringed or denied a Charter right, the applicant has failed to establish that the evidence should be excluded.

[124] Section 24(2) of the Charter does not create an automatic rule of exclusion for all unconstitutionally obtained evidence. Rather, under s. 24(2), where a court concludes that evidence was “obtained in manner” that infringed or denied any rights or freedoms guaranteed by the Charter, the evidence must be excluded if the Applicant establishes that having regard to all the circumstances, the admission of the evidence in the proceedings would bring the administration of justice into disrepute.

[125] According to the Supreme Court of Canada decision in Grant[^35], there is a three-pronged test that must be applied when considering the admissibility of evidence under 24(2) of the Charter. The court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to the following factors:

(1) the seriousness of the Charter-infringing state conduct;

(2) the impact of the breach on the Charter-protected interests of the accused; and

(3) society’s interest in the adjudication of the case on its merits.[^36]

[126] This requires attention to whether the overall repute of the justice system, when viewed in the long term and objectively speaking, will be negatively affected by the admission of the evidence, taking all the circumstances into account.[^37] Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The focus is societal and is on the broad impact of admission of the evidence on the long-term repute of the justice system.[^38]

Seriousness of the Breach

[127] In assessing the seriousness of a breach, Grant requires an examination of the police conduct and a determination of where it fits on a spectrum from mere technical breach at one end of the spectrum to bad faith violation at the other. In Beaver the court explained as follows:

The first line of inquiry under s. 24(2) considers whether the Charter-infringing state conduct is so serious that the court needs to dissociate itself from it. This inquiry requires the court to situate the Charter-infringing conduct on a scale of culpability. At one end of the scale is conduct that constitutes a wilful or reckless disregard of Charter rights, a systemic pattern of Charter-infringing conduct, or a major departure from Charter standards. At the other end of the scale are less serious Charter breaches, including breaches that are inadvertent, technical, or minor or those that reflect an understandable mistake. The more severe the state’s Charter-infringing conduct, the greater the need for courts to dissociate themselves from it. (citations omitted).[^39]

[128] The police were required to implement the right to counsel at the first reasonably available opportunity. Once Mr. Hamidu arrived at the police station, the call to counsel should have been placed “immediately” after the booking process was complete. While some delay was caused by PC Azoulay’s internet searches to confirm Mr. Levien’s number and that he was a lawyer, this does not sufficiently explain the 43-minute delay in placing the call to counsel of choice. The call should have been made earlier and the delay reflected a temporary lack of diligence by PC Azoulay in facilitating Mr. Hamidu’s contact with counsel without delay.

[129] In assessing where on the spectrum the breach lies in terms of seriousness, and the impact of the breach, the facts in this case are very different than cases such as Jarrett[^40] and Rover (discussed below), cases where courts found that delay in provision or implementation of the rights to counsel justified the exclusion of evidence despite the absence of a causal connection between the evidence and the breach.

[130] In Jarrett the accused was not provided with an opportunity to speak with counsel for 30 hours after requesting to do so. Jarrett was arrested for assaulting a police officer, possession for the purposes of trafficking, and other offences. The police used significant force in executing the arrest including use of tasers. Following the arrest, the accused was informed of the right to counsel and requested to speak to a specific lawyer before he was taken to the hospital where he remained for 20 hours handcuffed to a bed, during which time he was not provided access to counsel.

[131] Once Mr. Jarrett was released from hospital and taken to the police station, he waited another 10 hours to speak with counsel. The only step taken by the police to facilitate contact with counsel was a single voicemail message left for his lawyer approximately 1.5 hours after arrest. After the single phone call there was no further follow-up by the police.

[132] The trial Judge held that the accused’s s. 10(b) rights were violated because of the failure of the police to make further efforts to put him in contact with counsel but admitted the evidence, a fanny pack containing illicit drugs, after finding the breach was inadvertent, the impact limited, and society’s interest in determination of the case on the merits was significant.

[133] The Court of Appeal held that the trial Judge erred in his s. 24(2) analysis and found the breach to be serious because of the 30-hour delay and the fact that over the lengthy period nothing was done to follow up the single call or to inform the accused of what had been done to put him in contact with his lawyer.

[134] In Rover, the accused was arrested prior to a search warrant being obtained and executed on his home. At the time of arrest, when provided the rights to counsel, he asked to speak to a lawyer. The police put him in the cells and delayed contacting his lawyer for six hours while they applied for, obtained, and executed a search warrant. The court found that it was routine practice for the police to delay the implementation of the right to counsel for an indeterminate period when executing warrants to search a place for drugs believed to be connected to the accused person. The decision to delay access to counsel occurred without the officers turning their mind to the specific circumstances of the case. During the period of delay, the accused was not told why he was not being allowed to speak to counsel or when he would be allowed to speak to counsel.

[135] The Court in Rover made clear that constitutional breaches that are the direct result of systemic or institutional police practices render the police conduct more serious for the purposes of s. 24(2).

[136] The seriousness of the police conduct in Jarrett and Rover was of a different nature than what occurred in this case. Firstly, the delay in this case is of a different magnitude than the delays in Jarrett, 30 hours, and Rover, six hours.

[137] Secondly, a crucial difference between this case and Rover is that the systemic and institutional considerations present in Rover are absent. In Rover, the systemic nature of the police conduct was “central” to the conclusion that the exclusion of the evidence was necessary to dissociate the court from the misconduct.

[138] The delay in providing access to counsel in this case did not occur due to a customary or routine practice that “sacrifices a detainee’s constitutional right to immediate access to counsel in favour of the police interest in the efficient use of its resources”, rather the s. 10(b) violation, was isolated and situation specific.[^41]

[139] In my view, while not technical, the violation in this case falls towards the minor end of the spectrum. While many cases have characterized delay in providing access to counsel as a serious breach, those cases generally involved delays of hours not minutes, and often involved more than one Charter violation. The Charter-offending conduct in this case did not constitute a wilful or reckless disregard of Mr. Hamidu’s Charter rights, nor was it part of a systemic pattern of Charter-infringing conduct. It did not represent a major departure from Charter standards.

[140] While PC Azoulay should have proceeded more expeditiously in calling Mr. Hamidu’s counsel of choice, she was not indifferent to whether he accessed counsel, as was demonstrated by the fact that she followed up with Mr. Hamidu twenty minutes after she left the message for his lawyer and provided other options to Mr. Hamidu to speak with counsel.

[141] In Desilva the Court found a s. 10(b) violation because of an unexplained 55-minute delay in putting the accused in touch with duty counsel after the transportation and booking process was complete. The Court in DeSilva described the seriousness of the breach as moderate to serious. While there are factual similarities between this case and DeSilva, not only was the unexplained delay slightly longer in DeSilva but also the breach was not isolated. The Court in Desilva held the police also violated s. 10(b) by questioning the accused about the offence before he was notified of or given the opportunity to access counsel.

[142] Having regard to all of the circumstances, an assessment of the seriousness of the Charter-infringing conduct supports admission rather than exclusion of the evidence.

The Impact on the Applicant’s Charter Protected Interests was Minimal

[143] The impact of the breach on Mr. Hamidu’s Charter-protected interests was minimal.

[144] In Rover, when addressing the impact of the breach, the Court of Appeal held in respect of the six-hour delay that “A delay of that length, even when the police do not attempt to question the arrested person, has a significant impact on the arrested person’s rights”. The court explained that the right to counsel is a “lifeline” for a detained person through which they 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”.[^42]

[145] While I have no direct evidence on this point, I accept there may have been some psychological impact on Mr. Hamidu caused by the delay in waiting to speak with a lawyer. However, in assessing the impact, the approximately 43-minute delay in this case is different than cases where implementational breaches were found to have a significant impact and compromised the accused’s security of the person. The facts in this case are very different than Rover where the accused was held for six hours without any explanation for the police refusal of access to counsel, and without any indication of when he might be allowed to speak to someone.

[146] A significant factor attenuating the impact of the violation in this case is the absence of any causal relationship between the violation and the finding of the gun or the DNA evidence. While the impact of a breach can be serious even without a causal connection, the complete absence of a causal connection between the evidence and the breach will generally mitigate the impact of the breach on the accused’s Charter-protected interests.[^43]

[147] In Beaver, a Supreme Court of Canada decision, Justice Jamal, writing for the majority explained as follows:

In appropriate cases, the lack of a causal connection between the breaches and the obtaining of the impugned evidence may mitigate the impact of the breach on the accused's Charter-protected interests (Grant, at para. 122; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 87; R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 43; R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at para. 120). As this Court explained in Grant, the strength of the causal connection between the Charter infringement and the impugned evidence plays "a useful role ... in assessing the actual impact of the breach on the protected interests of the accused" (para. 122). Here, no such causal connection exists. The trial judge found that the Charter breaches arising from the unlawful detention "had little effect" on either appellant's decision to confess (para. 247). As the trial judge explained, Beaver's confession had nothing to do with the Charter breaches arising from the unlawful detention and everything to do with "the evidence that was beginning to unfold", including, most importantly, Lambert's videotaped confession (paras. 95 and 247). The lack of a causal connection between the Charter breaches and Beaver's confession mitigates the actual impact of the breaches on his Charter-protected interests.

[148] Recently, in Hamouth, the defence sought to exclude a gun seized during the execution of a search warrant. The gun was seized prior to serious s. 10(b) violations occurring. Despite the serious nature of the s. 10(b) breaches, Fairburn A.C.J., writing for the Ontario Court of Appeal, upheld the trial judge’s decision to admit the gun. In doing so Justice Fairburn confirmed that the lack of a causal connection is a well established and proper factor for consideration in assessing the impact of a breach and one that may mitigate the impact of the breach on an individual’s Charter-protected interests, weighing against exclusion.[^44]

[149] In this case the gun was found before the breach occurred. The recovery of the gun had no connection whatsoever to the s. 10(b) Charter breach. The evidence was discovered because the Applicant dropped the gun while running from the police. The evidence was in police custody before the breach took place and the DNA was already present on the gun. The firearm would have been discovered irrespective of any Charter violation.

[150] Section 10(b) is meant to assist detainees to regain their liberty and guard against the risk of involuntary self-incrimination. There is no evidence that the police delayed access strategically or attempted to elicit inculpatory statements from the Applicant during the delay. There is no indication that the Applicant would have regained his liberty earlier had there been no delay in accessing counsel.[^45]

[151] For these reasons, I find that the s. 10(b) violation had a minimal impact on Mr. Hamidu’s Charter-protected interests and the second line of inquiry also favours the admission of the evidence.[^46]

Significant Societal Interest in the Adjudication of the Case on the Merits

[152] The third line of inquiry, society’s interest on the adjudication of the case on its merits, “considers societal concerns and asks whether the truth-seeking function of the criminal trial process would be better served by the admission or exclusion of the evidence. Relevant factors under this inquiry include the reliability of the evidence, the importance of the evidence to the prosecution’s case, and the seriousness of the offence at issue”.[^47] While the seriousness of the offence can “cut both ways”, the public has a heightened interest in seeing serious firearms offences adjudicated on the merits.

[153] The loaded handgun and DNA evidence is reliable real evidence. The handgun is evidence that is essential to the Crown’s case. The exclusion of the firearm would effectively end the prosecution and preclude any consideration of the merits of the case. The DNA evidence while not essential is important to the truth-finding process. The Charter violation in no way undermined the reliability of the evidence. Excluding reliable evidence critical to the Crown’s case, such as the gun, can also undermine the truth-seeking function of the justice system and render the trial unfair from the public’s perspective, thus bringing the administration of justice into disrepute.

[154] Society has a strong public interest in controlling and deterring unlawful ownership of prohibited firearms and the possession of loaded firearms that pose a grave danger to the community. The inherent dangerousness of illegal firearms and society’s desire to live free from the lethal threat they pose informs whether the exclusion of a firearm obtained in violation of the Charter will undermine public confidence in the administration of justice.[^48]

[155] The truth-seeking function of the criminal process, and the societal interest in a criminal trial on the merits would be seriously undermined if such highly reliable and critical evidence were excluded.

[156] This third prong of the analytical framework under 24(2) of the Charter strongly favours admission of the evidence.[^49]

Conclusion 24(2)

[157] In my view, all three prongs of the Grant test support the admission of the evidence: the breach was not serious, had a minimal impact on the Applicant, and there is a strong societal interest on the adjudication of the case on the merits. The Applicant has not established that admission of the gun or the DNA evidence would bring the administration of justice into disrepute.[^50] The evidence of the gun and the DNA will be admitted.

E. Findings on the Trial Proper

Standard of Proof and Circumstantial Evidence

[158] Mr. Hamidu is presumed to be innocent of each count, unless and until the Crown has proven each of the essential elements for that charge beyond a reasonable doubt. Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence. It is not enough for me to believe that the defendant is possibly or even probably guilty. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities.[^51]

[159] A reasonable doubt is a doubt based on “reason and common sense”; it is not “imaginary or frivolous”; it “does not involve proof to an absolute certainty”; and it is “logically connected to the evidence or absence of evidence”.[^52]

[160] Where proof of an offence depends on circumstantial evidence, the trial judge must consider whether the only reasonable inference arising from the evidence is that the accused is guilty of the charged offences. The court must determine whether there are “other plausible theories or other reasonable possibilities that are inconsistent with guilt, and whether any gaps in the evidence give rise to a reasonable doubt”.[^53]

[161] In circumstantial cases the trier of fact must approach the evidence with awareness of the dangers of jumping to unwarranted conclusions. In order to protect against the drawing of unwarranted conclusions, I must be satisfied that the guilt of Mr. Hamidu is “the only reasonable inference” that can be drawn from the proven facts. This approach is necessary to guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences. The inferences that may be drawn from proven facts must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.[^54]

[162] In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. Requiring proven facts to support an explanation other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.[^55]

[163] However, while a certain gap in the evidence may result in inferences other than guilt, those inferences must be reasonable given the evidence and absence of evidence, assessed logically and in light of human experience and common sense. The Crown is required to negative reasonable possibilities but does not have to “negative every possible conjecture, no matter how irrational or fanciful which might be consistent with the innocence of the accused.” Alternative inferences inconsistent with an accused’s guilt must be reasonable, not just possible, and should not be speculative. [^56]

[164] Evidence must be considered in totality, with the court considering the cumulative effect of all the evidence. Evidence is not to be considered in a piecemeal fashion. For example, in Abdelrahman the Court of Appeal found that the trial judge erred in considering individual pieces of evidence relied upon by the Crown to prove possession of drugs in isolation. The Court of Appeal explained that while each piece of evidence may not, by itself, have supported the inference of possession beyond a reasonable doubt, the trial judge was obligated to consider the combined effect of all of the evidence relevant to whether the accused knowingly possessed drugs.[^57]

Factual Findings

[165] I find as a fact that Mr. Hamidu was the person PC Simmonds and PC Smilis saw at the car in the parking lot, who fled when PC Simmonds directed him to stop, and who was arrested by PC Smilis at 1:38 a.m. on December 15, 2019. I have reached this conclusion based on the totality of the evidence including the following evidence:

• PC Smilis testified that he never lost sight of the man who was running away from him from the time he saw him in the parking lot until the point of arrest.

• PC Simmonds testified that after he stopped chasing the man, he was able to see the man fleeing and described the same path of travel as described by PC Smilis.

• PC Smilis saw the man remove his jacket in the parking lot not far from the location of the arrest. The jacket was recovered and was a brown sheepskin jacket with a white collar, the same as the jacket worn by the man PC Simmonds told to stop. This is compelling evidence that PC Smilis never lost the man he was chasing.

• Although an urban area and in the general vicinity of the restaurants and nightclubs, the location where the actual chase took place was not busy with people. The theatre the man ran towards was closed and the man was running away from the busy area and towards the closed theatre in the early morning hours.

• PC Smilis saw something fall from the man’s waist and PC Simmonds found the gun in the path of travel of the man, where PC Smilis saw the item drop from the man. A DNA profile consistent with Mr. Hamidu’s was found on the gun. DNA that could not be excluded as having originated from Mr. Hamidu was on the grip and slide of the gun. It was not a coincidence that a gun in the path of travel of the person fleeing the police, contained DNA that could not be excluded as having originated from Mr. Hamidu, and Mr. Hamidu was arrested a short distance away, without his jacket, breathing heavily.

• The man PC Smilis was chasing removed his coat and shoes. As noted, a brown sheepskin jacket was seized in the path of travel of the man. When Mr. Hamidu was arrested, he was not wearing a coat or shoes and was breathing heavily, consistent with having been running. Mr. Hamidu advised police that he thought he was going to vomit and subsequently did so in the back of the police cruiser. It is not a coincidence that Mr. Hamidu was not wearing a coat or shoes in December. He removed them during the chase. It is not a coincidence that Mr. Hamidu was breathing heavily. He was breathing heavily, and subsequently vomited because he had been involved in the foot chase with the police.

[166] The totality of the evidence, including that at the time of his arrest Mr. Hamidu was not wearing a jacket and was breathing heavily, considered in the context of the evidence as a whole, including the DNA evidence, and evidence of PC Smilis that he never lost the man he was chasing, collectively constitutes overwhelming evidence that it was Mr. Hamidu who was engaged in the foot chase with PC Simmonds and PC Smilis. There is no other reasonable inference.

[167] I have considered that a passport in the name of Marlow Roberts was located near the sheepskin jacket discarded by the man fleeing PC Smilis. This does not cause me to doubt that it was Mr. Hamidu involved in the chase. Either he was in possession of the passport which he dropped with the coat, or the passport was unrelated to the incident.

[168] I also find as a fact that Mr. Hamidu was in possession of the firearm when first told to stop by PC Simmonds and remained in possession until he discarded the firearm while being pursued by PC Simmonds and PC Smilis.

[169] I am satisfied beyond a reasonable doubt that the gun found by PC Simmonds was dropped by Mr. Hamidu and I find as a fact that he intentionally discarded the firearm.

[170] I accept that PC Smilis’s cruiser lights illuminated Mr. Hamidu when he dropped an item enhancing PC Smilis’s ability to see the item fall. PC Simmonds found the gun where PC Smilis said he saw the item drop. The gun seized had a DNA profile consistent with Mr. Hamidu’s. The CFS compared the DNA samples from Mr. Hamidu and the gun and confirmed that the DNA found on the grip and slide of the firearm was a match to Mr. Hamidu who could not be excluded as a contributor to Mixture 1 from the Glock grip and slide.

[171] It is of no moment that PC Smilis recalled PC Simmonds being in a slightly different position than PC Simmonds described being in when he stopped chasing the man. PC Smilis had little opportunity to consider the exact position of PC Simmonds at that point, nor was his precise position of importance at that point in time. I accept PC Simmonds’ evidence that he found the gun along the path of travel taken by the man he was chasing, close to where he stopped the pursuit, and where PC Smilis described seeing an item drop.

[172] I find as a fact that Mr. Hamidu had knowledge that he was in possession of the firearm and had control over the firearm.

[173] I find as a fact that Mr. Hamidu intentionally discarded the firearm while being chased to get rid of it.

• He knew he had a firearm.

• He knew he was prohibited from having a firearm.

• He knew he was being pursued by the police who were attempting to apprehend him.

o The police were driving a marked cruiser and the lights and siren were engaged, the officers were in uniform, and PC Simmonds said, “Police stop” and told him he was under arrest.

• The only reasonable inference is that Mr. Hamidu knew he would be in jeopardy of serious legal consequences if the police found him in possession of the loaded firearm. Not only was the gun unlawful but he knew he was prohibited from possessing firearms.

• Furthermore, a short time after dropping the gun Mr. Hamidu intentionally removed and discarded his jacket.

• I find that like the jacket, Mr. Hamidu intended to discard the firearm while seeking to escape from the police.

[174] I reject the defence assertion that the Crown has not disproven that it was a “hot potato circumstance” where Mr. Hamidu had only transient possession of the firearm without knowledge or control.

[175] The evidence of Mr. Hamidu’s possession of the gun in the parking lot and during the chase is sufficient to establish the firearms offences beyond a reasonable doubt.

[176] In respect of the count of possession for a purpose dangerous to the public peace, Mr. Hamidu could not possess a firearm lawfully, and the firearm, a handgun, was loaded. The only reasonable inference is that he had it in his possession for a purpose dangerous to the public peace. The handgun posed an immediate threat to life and safety.[^58]

[177] I also find as a fact that Mr. Hamidu was the man who attempted to enter Attic Nightclub and was turned away by Ms. Taylor because she believed he had a gun. I have reached this conclusion based on the totality of the evidence including:

• Mr. Hamidu matched the description of the man who attempted to enter the club. He was a tall black male wearing a brown sheepskin jacket with a white collar.

• I find as a fact, as described by Ms. Taylor and Mr. Demarche, that after leaving the club the man with the brown jacket went through the pedestrian walkway between the Attic Nightclub and Boston Pizza. When the man left the nightclub, he walked north in the pedestrian walkway towards the north parking lot, the location where Mr. Hamidu was located by the police entering a vehicle.[^59]

• Ms. Taylor saw the man turn left when he exited. Mr. DeMarche testified that the man turned left and went to the parking lot behind the building. He said the two men were in the pedestrian walkway between Attic and Boston Pizza when he approached the two officers. The walkway led to the north parking lot behind the building. The men were in the walkway closer to the parking lot. He noted that there was an abandoned building to the north of the parking lot and the Cineplex to the east of the parking lot was closed.

• Notably, Ms. Taylor and Mr. DeMarche told the man to put the item in his car and Mr. DeMarche told the man he could come back after he put the item in his car.

• I do not agree with the defence submission that there were many people in the area that night creating doubt about whether the man at the car that PC Simmonds directed to stop was the same man that had been in the club. I am satisfied there were not many people in the area of the pedestrian walkway and north parking lot at the time Mr. DeMarche spoke to the officers and when they located Mr. Hamidu entering a vehicle.

o PC Smilis testified he did not see anyone else walking down the walkway.

o Although PC Simmonds testified that there were lots of beautiful people in the area that night frequenting the clubs and restaurants, when asked more specifically about the parking lot area PC Simmonds testified there were a lot of cars in the parking lot, but he did not remember seeing anyone else in the immediate vicinity of the vehicle Mr. Hamidu was entering. PC Smilis testified that in the north parking lot there were two or three rows of cars, and it was not that busy that night. He said overall it was a quiet night. He noted that people tended to park in the south parking lot. He said the man in the brown jacket and the second black male were the only two people he saw.

o While Ms. Taylor talked about 1:30 a.m. being one of the busiest times for people entering the club, her evidence did not suggest that the pedestrian walkway was filled with people or that the parking lot to the north was filled with people.

o I find that there were few if any other people in the pedestrian walkway or north parking lot at the time PC Simmonds and PC Smilis interacted with Mr. Hamidu.

• PC Simmonds and PC Smilis located Mr. Hamidu in the parking lot that Mr. DeMarche described the two men walking towards, within a very short period after the man spoke with Ms. Taylor.

o After Mr. DeMarche and Ms. Taylor told the men to leave Mr. Demarche immediately went outside and told the officers about what happened. The officers were parked immediately beside the Attic Nightclub.

o Immediately after the officers received the information from Mr. DeMarche, they drove around the building and saw the man with the brown jacket getting into the car.

o I accept that it took the officers approximately one minute to drive around the building. They received the information from Mr. DeMarche at or very shortly before 1:34 a.m. and Mr. Hamidu was arrested by 1:38 a.m., four minutes later. The officers interacted with Mr. Hamidu less than four minutes after the man with the brown jacket left the Attic club and headed towards the parking lot and I find as a fact that the officers interacted with Mr. Hamidu in the parking lot within approximately a minute or two of when Ms. Taylor dealt with the man in the club.

• I have considered the fact that Mr. Hamidu ran immediately when directed to stop by PC Simmonds and subsequently dropped a gun during the chase. I find as a fact that he immediately fled because he was the man who had interacted with Ms. Taylor, he had a gun, and he knew Ms. Taylor knew he had a gun and turned him away from the club because he was in possession of a gun. When he saw the police, he knew the security officers may have told the police about the gun.

• While I have considered that Mr. Hamidu may have had another reason to flee upon seeing police, that he was in violation of a release order, in my view it was his possession of the gun and the fact that Mr. Hamidu knew the security officers may have told the police about the gun that created a more powerful motive to flee. The fact that he intentionally discarded the gun further supports my conclusion that part of the reason he fled was so the gun would not be found by the police. He had reason to believe that police were seeking to arrest him for being in possession of a gun.

o The undisputed evidence of Ms. Taylor was that the item she located was concealed in the man’s pants in the area of his groin. She felt what she believed was the handle of a gun which was secured in the opening of the man’s boxer briefs.

o I find that the item Ms. Taylor detected on the man was in fact a gun having regard to what she described feeling and the conversation she had with the man. Ms. Taylor believed it was a gun because of her conversation with the man. When she discovered the item, she asked the man to put whatever the item was in his car. The man did not deny the item was contraband, but rather asked Ms. Taylor to let him be and offered her compensation to let him in the club with the item. She refused because of what it was and asked him to return the item to his car.

o In addition, the conclusion that Mr. Hamidu was the man who attempted to enter the club must be considered having regard to all the evidence, including that a gun was dropped by Mr. Hamidu when he fled from the police.

[178] I find as a fact that Mr. Hamidu was in possession of the Glock Model 27 loaded semi-automatic handgun, a prohibited firearm, when he was turned away from the Attic Nightclub.

[179] I recognize that a reasonable doubt, or a theory alternative to guilt is not rendered “speculative by the mere fact that it arises from a lack of evidence” and I am well aware that the burden of proof at all times lies with the Crown. I have cautioned myself that the accused has no burden to prove anything, and inferences inconsistent with guilt can arise from a lack of evidence. I recognize that a gap in the evidence may result in inferences other than guilt. However, such inferences must be “reasonable given the evidence and the absence of evidence, assessed logically and in light of human experience and common sense”.[^60]

[180] Having regard to the evidence as a whole, I am satisfied there are no other plausible possibilities inconsistent with guilt. The Crown does not need to “negative every possible conjecture no matter how irrational or fanciful, which might be consistent with the innocence of the accused. Other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation”.[^61]

[181] The cumulative evidence in this case that Mr. Hamidu was in possession of the loaded firearm with knowledge and control is overwhelming. There is absolutely no foundation for the assertion that he might have received the gun from another person and was only in momentary possession that was insufficient to establish knowledge and control.

[182] Further, having regard to the totality of the evidence, the suggestion that some other man dropped the gun that contained a DNA profile that was a match to Mr. Hamidu, while Mr. Hamidu was in the area jacketless and breathing heavily, amounts to supposition or conjecture flowing from a purely hypothetical narrative, that is not reasonable when considered in the context of the evidence as a whole.¹⁶

[183] In my view, the circumstantial evidence, viewed logically and in light of human experience, is not reasonably capable of supporting any inference other than that the accused is guilty of each of the firearm related offences and two counts of failing to comply with his release orders.

[184] The only reasonable inference is that Mr. Hamidu attended the Attic Nightclub on December 15, 2019, with a firearm concealed in his pants. He knew he was in possession of the loaded concealed handgun and attempted to enter the nightclub with the gun for a purpose dangerous to the public peace. He knew that his possession of the handgun was unlawful. When he was refused entry, he tried to talk Ms. Taylor into allowing him into the club with the gun and offered to pay her when she declined to let him enter. He left with the gun when denied entry by Ms. Taylor and Mr. Demarche. He and his friend turned left, walked through the pedestrian walkway, and went to the parking lot.

[185] Mr. Hamidu was getting into a car when he was approached by PC Smilis and PC Simmonds. When PC Simmonds told him to stop and said he was under arrest, he fled because he knew that the police were seeking to investigate him for being in possession of a gun and it was a serious offence for him to be in possession of the firearm and because he knew he was in violation of his release order.

[186] He knew he was subject to a release order that required him to keep the peace and be of good behaviour and to be in his residence between 8 p.m. and 6 p.m. He knew he was prohibited from possessing the loaded gun and he knew that he had no authorization or licence to possess the gun.

[187] He ran to prevent the police from arresting him and finding the gun that was in his possession and while running he discarded the gun and his jacket.

[188] From the point he attended the nightclub until he dropped the gun during the chase, Mr. Hamidu was in personal physical possession of the gun with knowledge of the loaded prohibited handgun and he had control over it. The possession of the gun was neither temporary or transitory. He dropped the gun on purpose during the pursuit. After discarding the gun, and subsequently his jacket, something that might tend to identify him, he continued fleeing until he could not run further and was apprehended by the police.

[189] I am satisfied that the Crown has proven beyond a reasonable doubt the essential elements of:

• Possession of a prohibited firearm for a purpose dangerous to the public peace, contrary to s. 88(2) of the Criminal Code;

• Possession of a prohibited firearm without licence, contrary to s. 91(3) of the Criminal Code;

• Carry a Concealed Weapon, contrary to s. 90(2) of the Criminal Code;

• Possession of a prohibited firearm without a licence, contrary to s. 92(3) of the Criminal Code;

• Possession of a loaded prohibited firearm without licence, contrary to s. 95(2) of the Criminal Code;

• Failing to comply with a recognizance, contrary to s. 145(3) of the Criminal Code, by failing to keep the peace and be of good behaviour;

• Failing to comply with a recognizance, contrary to s. 145(3) of the Criminal Code, by failing to comply with a curfew.

[190] There will be a finding of guilt on each of these counts.

F. Amendment of Counts 7 and 8 – Disobey Court Order

[191] In respect of the charges of failing to comply with a court order, contrary to s. 127 of the Criminal Code, the Crown relying on Irwin,[^62] a decision of the Ontario Court of Appeal, seeks to amend the charges under s. 127, disobeying a lawful order, to substitute the offence of possession of a firearm contrary to a prohibition order, contrary to s. 117.01(1) of the Criminal Code. Section 117.01(1) is the proper section for charges alleging a failure to comply with a prohibition order made under the Criminal Code or another federal statute, including the YCJA. Section 127, disobeying a lawful order, is not an appropriate charge where “a punishment or other mode of proceeding is expressly provided by law”.[^63] It appears that the allegation that Mr. Hamidu failed to comply with a prohibition order was charged under s. 127 instead of s. 117.01(1) in error.

[192] In Irwin, the Court of Appeal confirmed that there are broad powers of amendment at trial under s. 601 of the Criminal Code and on appeal under s. 683 of the Criminal Code including for defects in substance or form. Broad powers of amendment allow a court to substitute a different charge for the original charge to conform with the evidence so long as the accused is not misled or prejudiced in his or her defence.[^64]

[193] Prejudice speaks to the accused’s ability and opportunity to meet the charge. In deciding whether an amendment should be allowed, the court must consider whether the accused had a full opportunity to meet all issues raised by the charge as amended and whether the defence would have been conducted any differently had the amended charge been before the court. If the accused had a full opportunity to meet the issues and the conduct of the defence would have been the same, there is no prejudice. The Court in Irwin explained that “Some amendments which substitute one charge for another will amount to no more than placing a new label on exactly the same conduct”.[^65]

[194] I am satisfied that counts seven and eight may be amended as requested by the Crown, something not strenuously contested by the defence, such that the information charges two counts of possession contrary to a prohibition order contrary to s. 117.01(1) instead of two counts of disobey a court order contrary to s. 127 of the Criminal Code. The words “for which no punishment or other mode of proceeding is expressly provided by law” are to be deleted from the information.

[195] I am satisfied that the amendment does not prejudice Mr. Hamidu because what was at issue in the trial was whether Mr. Hamidu possessed the firearm, not the existence of a prohibition order prohibiting his possession of firearms.

[196] As in Irwin, the amendment does no more than put a new label on Mr. Hamidu’s culpable conduct. The substance of the allegations remains unchanged. Mr. Hamidu was neither misled nor prejudiced. The defence position during the trial was that Mr. Hamidu was not in possession of a firearm. In submissions, Mr. Golec reasonably conceded that if Mr. Hamidu were found to be in possession of a firearm, the court should find that he knowingly possessed the firearm, contrary to the YCJA s. 51(1) order prohibiting him from possessing firearms.[^66]

[197] As a result of my findings, there will also be findings of guilt to counts seven and eight, the two counts of possession contrary to a prohibition order relating to possession of the firearm and ammunition.

Released: December 4, 2023

Signed: Justice Marcella Henschel

[^1]: Oral reasons for judgment delivered November 30, 2023. Submissions on the Crown’s request to amend the information to substitute the two counts of disobey a court order contrary to s. 127 of the Criminal Code, counts seven and eight, with two counts of possession contrary to a prohibition order contrary to s. 117.01(1) of the Criminal Code, were made on November 30, 2023. Oral reasons allowing the requested amendment were provided on November 30, 2023. The written reasons include supplementary reasons with respect to the order amending the information.

[^2]: In the written Charter application materials Mr. Hamidu sought exclusion of all police observations during the investigation, any and all utterances by the Applicant, the firearm, and the results of the DNA analysis. In oral submissions counsel focused the request for exclusion on the firearm and the results of the DNA analysis.

[^3]: R. v. Suberu, 2009 SCC 33, at para. 42

[^4]: R. v. Nguyen, 2008 ONCA 49.

[^5]: Nguyen, at para. 8.

[^6]: R. v. Evans, 2015 ONCJ 305.

[^7]: R. v. Pera, 2023 ONCA 160, at para. 12.

[^8]: Evans, at paras. 45-48.

[^9]: R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at para. 17.

[^10]: Bartle, at para. 17.

[^11]: R. v. Suberu, 2009 SCC 33.

[^12]: Suberu, at para. 40-42; R. v. Willier, 2010 SCC 37, at para. 38; Bartle, at para. 16.

[^13]: Willier, at para. 27.

[^14]: R. v. Jarrett, 2021 ONCA 758, at para. 52.

[^15]: Suberu, at para. 42.

[^16]: Suberu, at paras. 41-42; R. v. Taylor, 2014 SCC 50, at para. 24.

[^17]: Taylor, at para. 24; R. v. Desilva, 2022 ONCA 879, at para. 73. In R. v. Jarrett, 2021 ONCA 758, at para. 41, the court citing Suberu, at paras. 38 and 42, stated that when the detainee asks to exercise the right to counsel the police must “immediately provide the detainee with a reasonable opportunity to speak to counsel”.

[^18]: Rover, at paras. 26-28; Desilva, paras. 73-75; R. v. Wu, 2017 ONSC 1003, at para. 78.

[^19]: Rover, at paras. 26-28; Desilva, paras. 73-75; Taylor, at paras. 23, 24, and 33; R. v. Pileggi, 2021 ONCA 4, at para. 87

[^20]: See also R. v. Pileggi, 2021 ONCA 4, wherein the Court of Appeal upheld the trial judge’s conclusion that the “brief” delay in provision of the right to counsel, “a mere seven minutes”, during which the police officers were clearing the house during the execution of a search warrant was justified by concerns for officer safety.

[^21]: Pileggi, at para. 77

[^22]: Desilva, at para. 84.

[^23]: R. v. Leclair, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3; Willier, at para. 35.

[^24]: Jarrett, at para. 43; R. v. Panigas, 2014 ONCJ 797, at para. 52.

[^25]: Willier, at para. 35. See also R. v. McCrimmon, 2010 SCC 36, at para. 17, wherein the Court states “As explained in Willier, the right to choose counsel is one facet of the guarantee under s. 10(b) of the Charter. Where the detainee opts to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles him or her to a reasonable opportunity to contact chosen counsel”.

[^26]: Jarrett, at para. 43.

[^27]: R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236; 1995 CarswellNS 25, at paras. 35-40.

[^28]: Bartle, at para. 24.

[^29]: R. v. Littleford, 2001 CanLII 8559 (ON CA), [2001] O.J. No. 2437 (CA); R. v. Blackett, [2006] O.J. No. 2999 (SCJ), at paras. 10-11.

[^30]: Willier, at para. 42.

[^31]: McCrimmon, at para. 19.

[^32]: R. v. Veliz, 2022 ONCA 653.

[^33]: Veliz, at para. 10.

[^34]: Willier, at paras. 43 and 44.

[^35]: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[^36]: Grant, at para. 71.

[^37]: R. v. Beaver, 2022 SCC 54, at para. 116.

[^38]: Grant, at para. 70; R. v. Hobeika, 2020 ONCA 750, at paras. 76-78.

[^39]: Beaver, at para. 120.

[^40]: R. v. Jarrett, 2021 ONCA 758.

[^41]: Rover, at para. 37; Desilva, at para. 93; R. v. Tim, 2022 SCC 12, at para. 88. In R. v. Hobeika, 2020 ONCA 750, at paras. 85-88, although the court found the four-hour delay in providing access to counsel was serious, the court held that a “crucial” difference that distinguished the case from Rover was there was no evidence that the failure to provide access was routine or systemic.

[^42]: Rover, at para. 45.

[^43]: Beaver, at para. 125.

[^44]: R. v. Hamouth, 2023 ONCA 518, at paras. 50-58; Desilva, at para. 97.

[^45]: Desilva, at paras. 87 and 101.

[^46]: Desilva, at para. 102; R. v. Keshavarz, 2022 ONCA 212, at paras. 112-16. See also R. v. Pileggi, 2021 ONCA 4, where the court found multiple s. 10(b) breaches. The accused asked the police to facilitate access to counsel of choice and then waited over three hours before speaking to duty counsel due in part to miscommunication between officers. The Court concluded that the breach was serious but found the other two factors, impact, and societal interest in the case being determined on the merits favoured admission and held the gun was properly admitted into evidence. See also R. v. Griffith, 2021 ONCA 302. In Griffith the accused was arrested for possession for the purposes of trafficking and a loaded firearm was found on his person during a search incident to arrest. The police violated the accused’s s. 10(b) rights by failing to provide access to counsel for a period of over 3 hours and 35 minutes as a result of unacceptable negligence. After arrest the police were executing search warrants at other locations and the officer who ultimately facilitated contact with counsel completed other tasks including paperwork prior to implementing contact with counsel. Despite finding the breach to be serious, after balancing the other factors, the court admitted the evidence including the firearm seized incident to arrest.

[^47]: Beaver, at para. 129 citing Grant, at paras. 79-84, R. v. Harrison, 2009 SCC 34, at para. 33, R. v. Cote, 2011 SCC 46, at para. 47, and R. v. Patterson, 2017 SCC 15, at paras. 51-52.

[^48]: See R. v. Omar, 2018 ONCA 975, reversed 2019 SCC 32, 2019 SCJ 32, wherein the SCC adopted the dissenting comments of Brown J. from the Ontario Court of Appeal at para. 138 who stated, “It is of course, a matter of balance under s. 24(2). But the balance necessary to offer Canadians a peaceful community in which to live is not achieved by neutering the third Grant factor and treating illegal handguns as fungible with any other kind of evidence for the purposes of a section 24(2) analysis.” And R. v. Reid, 2019 ONCA 32, at para. 67, wherein the Ontario Court of Appeal stated that recognition that the public has an overwhelming interest in curtailing gun-crime “is an entirely uncontroversial statement and accords with good common sense”.

[^49]: Grant, at para. 106.

[^50]: Pileggi, supra; R. v. Hobeika, 2020 ONCA 750, the accused was charged with possession for the purpose of trafficking and possession of proceeds of crime. The accused, following arrest, asked to speak with a specific lawyer. He was taken to the police station, strip searched and placed in the cells. No steps were taken to put the accused in contact with his counsel of choice for a period of 4 hours and no explanation for the failure to do so was provided. There was no evidence of any other breaches, and no evidence that the breach was systemic. The Court held that despite the serious nature of the s. 10(b) breach, the evidence of the drugs and money seized was admissible under s. 24(2).

[^51]: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at p. 39.

[^52]: Lifchus, at para. 36; R. v. Villaroman, 2016 SCC 33, at para. 28.

[^53]: R. v. Abdelrahman, 2022 ONCA 798, at para. 8

[^54]: Villaroman, at para. 30

[^55]: Villaroman, at para. 35.

[^56]: R. v. Abdelrahman, at paras. 8 and 9, citing Villaroman, at paras. 36-37.

[^57]: Abdelrahman, at paras. 9-15.

[^58]: R. v. Kerr, 2004 SCC 44. R. v. Andrade, 2015 ONCA 499, at para. 36; R. v. Horner, 2018 ONCA 971, at para. 17. The essential elements the Crown must prove to establish possession for a purpose dangerous to the public peace are i.) the accused possessed a weapon (in this case the firearm), and ii.) the purpose of that possession was for a purpose dangerous to the public peace.

[^59]: Ms. Taylor testified that when she had her dealings with the man it was around 1:30 a.m. . She said this was the busiest time for persons arriving at the club and she believed around 10 people arrived at the same time as the man. She estimated there were around 20 people in the club and there were 150 persons who attended the club that night.

[^60]: Villaroman, at para. 36.

[^61]: Villaroman, at para. 37.

[^62]: R. v. Irwin, 1998 CanLII 2957 (ON CA), [1998] O.J. No. 627 (C.A.); 123 C.C.C. (3d) 316. The Court of Appeal found the two policy goals that support permitting broad powers of amendment include, i.) the determination of cases on the merits and ii.) the avoidance of multiplicity of proceedings by allowing for the plea of autrefois acquit where amendments could have been made at the original trial such that the accused might have been convicted. Broad powers of amendment expand the scope of special pleas and avoid multiple trials in relation to a single transaction.

[^63]: Section 127(1) of the Criminal Code provides:

127 (1) Every one who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction. (Emphasis added)

[^64]: Irwin, at paras. 31-34.

[^65]: Irwin, at paras. 27 and 38.

[^66]: Irwin, at para. 42.