ONTARIO COURT OF JUSTICE
CITATION: R. v. Mohamed, 2023 ONCJ 580
DATE: 2023 12 20
COURT FILE No.: Thunder Bay 220445
B E T W E E N :
HIS MAJESTY THE KING
— AND —
OMAR MOHAMED
Before Justice C.M. Brochu Heard on November 2 and 3, 2023
Ruling on Charter Application released orally on December 15, 2023 Written Reasons released on December 20, 2023
Misbah Haque........................................................................................... Agent for the PPSC
Kim Schofield.................................................. Counsel for the accused, Omar Mohamed
Brochu J.:
OVERVIEW
[1] The accused is charged with the offences of possession for the purpose of trafficking in cocaine contrary to section 5(2) of the Controlled Drug and Substances Act (“CDSA”) and possession of proceeds of crime under $5,000 contrary to section 354(1)(a) of the Criminal Code.
[2] This matter arises out of an incident that occurred on February 27, 2022 at the Thunder Bay International Airport (hereinafter “the Airport”), wherein an employee of Canadian Air Transport Security Authority (“CATSA”), alerted the Thunder Bay Police Services (“TBPS”) of a suitcase, which they inspected, and which they believed contained narcotics.
[3] The suitcase in question had a baggage tag in the name of Omarali Mohamed. The TBPS searched the suitcase and found it to contain 1.11 kilograms of cocaine and 51 grams of crack cocaine.
[4] The defendant has brought an Application alleging violations of his rights under sections 10(a) and 10(b) of the Canadian Charter of Rights and Freedom, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, (U.K.), 1982, c. 11 (“the Charter”). It should be noted that although the application included 10(a), the submissions and arguments only addressed 10(b) rights.
[5] As a remedy, the defendant seeks an order for the exclusion of the drugs, the money and evidence from the Holt Place search warrant execution, as evidence obtained in breach of these rights pursuant to section 24(2) of the Charter.
[6] The trial and Charter application proceeded by way of a blended voir dire/trial. However, the defendant indicated that he would be seeking a ruling on the Charter application during the voir dire prior to determining whether he would call any evidence in the trial portion.
[7] At the end of the Crown’s case, the defence indicated that it would not be calling any evidence in the Charter portion of the voir dire.
[8] I heard submissions on the Charter application. This ruling only addresses the Charter application in this blended proceeding.
SUMMARY OF THE RELEVANT EVIDENCE
[9] The following is a summary of the evidence that is relevant to ruling on the Charter application and for context.
[10] The facts and the evidence are not complicated.
[11] The parties filed an Agreed Statement of Facts (“ASF”) setting out the following:
(a) On February 27, 2022, Mr. Mohamed took a Uride from 475B Holt Place in the City of Thunder Bay. He was dropped off at the Airport at approximately 10:19 a.m.
(b) Melissa Bryson is a CATSA employee at the Airport. On February 27, 2022, she inspected a checked-in suitcase which carried a tag.
**It should be noted that a photograph of the tag was part of the ASF. It is an Air Canada tag with the name of Mohamed Omarali indicating a destination of Fort McMurray.
(c) Ms. Bryson inspected this suitcase and believed it to contain narcotics. She therefor called TBPS.
(d) DC Dave George and DC Chris Carson responded to the call. They searched the suitcase and found it to contain 1.11 kilograms of cocaine and 51 grams of crack cocaine.
(e) Following the search of the suitcase the detectives arrested Mr. Mohamed at the Airport.
(f) The drugs seized are of sufficient quantity to be for the purpose of trafficking.
(g) All photographs and videos are admitted. However, the admissibility of any utterances made by Mr. Mohamed contained therein are not admitted.
[12] DC Carson and DC George also testified.
[13] DC Carson and DC George indicated that on February 27, 2022 they were at the Airport, involved in an investigation on another project.
[14] In or around 1037 hours, DC George received a call from CATSA advising that they suspected having detected a large quantity of drugs in a piece of luggage. The police officers attended the lower-level luggage area. They retrieved the suitcase and found in it two plastic grocery bags and several other bags containing what was believed to be a cocaine.
[15] DC George and DC Carson attended the security area and asked that the individual named on the tag, Mohamed Omarali, be paged and present himself at the departure security gate.
[16] Mr. Mohamed attended the area. He was asked to identify himself. He did so verbally. He was placed under arrest, cuffed to the back and searched incident to arrest. Police located currency estimated at the time to be $500-$1,000. The officer explained the reason for arrest. A search incident to arrest was conducted, DC George advised him of his rights to counsel and caution.
[17] DC Carson indicated that Mr. Mohamed was arrested immediately upon identifying himself at 1103 hours.
[18] At 1108 hours rights to counsel and caution were read to him. Mr. Mohamed indicated that he understood. He also indicated that he wanted to speak to a lawyer.
[19] DC Carson and DC George were asked to explain the five minutes of delay between the arrest and rights to caution and counsel. They indicated that Mr. Mohamed was searched incident to arrest, items were taken from him, and DC Carson made notes in his notebook. DC George indicated that Mr. Mohamed was then identified with an Alberta driver’s licence. DC Carson could not remember if it was DC George or him that made arrangements for transport. These steps took about five minutes.
[20] It should be noted that Mr. Mohamed did make some utterances/statements after his rights to counsel and caution. The Crown agreed it would not rely on the utterances/statements made by Mr. Mohamed.
[21] DC George was cross-examined on the questioning of Mr. Mohamed after his rights to counsel were read and before speaking to a lawyer. DC George acknowledged that he asked Mr. Mohamed if he had checked a bag. He stated that he understood that he had a duty to hold off in questioning Mr. Mohamed until he had spoken to counsel. He conceded that he should not have questioned him.
[22] DC Carson was cross-examined to as to why rights to counsel were not facilitated at the Airport. He indicated that he prefers to have the lawyer called from the booking room. It is a controlled environment. Privacy can be ensured. He also did not believe that it could have been facilitated at the Airport. His experience is that police allow the call to be made from the police station, where they can ensure privacy and a secure location.
[23] Once at the police station, Mr. Mohamed was brought in the booking room where he is further searched.
[24] The video of the booking room was filed as an exhibit. On the video, DC Carson can be observed doing the following:
• He advised Mr. Mohamed of the offences with which he was being charged.
• He informed Mr. Mohamed of his right to counsel. He asked Mr. Mohamed if he had a lawyer of choice. DC Carson indicated that if he knew a name he could look up the number. Mr. Mohamed was handed a list of local lawyers. He was advised that if he would like to look up the telephone number for an ‘out of town’ lawyer, that the police could search for it online. He was also advised that he could contact Legal Aid Ontario.
• Mr. Mohamed looked at the list and stated the first lawyer he wanted DC Carson to contact. At that time, DC Carson inquired whether he wanted a message left if the lawyer was not available or to simply call the next one. Mr. Mohamed stated “The next one”.
• DC Carson could be observed calling the lawyer, and then advising Mr. Mohamed that there was no answer. The list was then given to Mr. Mohamed, he selected another lawyer and DC Carson made another call.
• DC Carson was observed placing eight calls to eight different lawyers selected by Mr. Mohamed. Out of these eight calls only one of them answered his telephone and indicated that he was unavailable for the next few weeks.
• After these failed attempts, Mr. Mohamed told DC Carson to call Legal Aid Ontario.
• DC Carson left a message for Legal Aid Ontario seeking a call back from duty counsel.
• DC Carson indicated to Mr. Mohamed that he was being held for bail. He told Mr. Mohamed that he left a message for duty counsel, that bail court was happening at that moment, and that hopefully they would hear from them shortly. DC Carson advised Mr. Mohamed that he would be placed in a cell until the lawyer called back.
• DC Carson once again told Mr. Mohamed that he should not say anything, that he was under caution and he could speak with his lawyer.
[25] DC Carson’s evidence was that Mr. Mohamed did not speak to a lawyer until several hours later. In or around 1850 hours, DC Carson attended the police station and spoke with the jailer. The officer was informed that Mr. Mohamed had not spoken to a lawyer. He was unsure as to whether duty counsel had called back.
[26] DC Carson placed a second call to duty counsel. Someone picked up right away. At 1852 hours Mr. Mohamed was placed in the privacy booth and spoke to duty counsel.
[27] DC Carson testified that between the time of leaving the booking room to reattending to speak with the jailer at 1850 hours, he continued with the investigation.
[28] In this regard, at 1213 hours DC Carson and George processed and weighed the drugs.
[29] DC Carson re-attended the Airport to continue the investigation. He reviewed security footage. They placed a covert camera at 975B Holt Place (hereinafter “Holt Place”). DC Carson drafted a CDSA warrant for that location as well.
[30] The CDSA warrant for 975B Holt Place was granted on February 28, 2022 at 1240 hours. It was executed at 1455 hours. They opened the door with the key that was found on Mr. Mohamed during the search incident to arrest.
[31] The following items were observed at Holt Place:
(a) 2 scales in working conditions, contaminated with a white substance believed to be cocaine,
(b) several ziplock bags,
(c) rubber bands,
(d) tin foil,
(e) a 9mm pistol magazine located under the lower kitchen drawer, and,
(f) a luggage tag dated February 24, 2022 in Mr. Mohamed’s name.
[32] DC Carson and DC George were cross-examined on the fact that it took over 6 hours for Mr. Mohamed to be placed in contact with counsel. DC Carson commented on the inefficiency of the system, stating that sometimes it can take 30 minutes and others several hours. He could not explain why duty counsel did not call back promptly in this case. He admitted that he could have checked back in during the day to inquire whether Mr. Mohamed had spoken to counsel.
[33] DC George indicated that he was not aware it took that long for Mr. Mohamed to be contacted by counsel. He agreed that it could have been done more quickly. He stated that the protocol is that once an accused is turned over to the jailer, it is the jailer’s responsibility to facilitate the call.
[34] When questioned as to what could be done to alleviate this issue in the future, DC Carson suggested that perhaps additional training for the jailers and/or resources for the jailer may have assisted. Perhaps then, someone would have noticed that the accused had not yet spoken to counsel. He further indicated that several individuals can be arrested in a day, or the run of a week by the TBPS. There is only one jailer. He could have 20 to 30 individuals for which to provide. However, DC Carson could not indicate how busy the jailer would have been that day.
POSITION OF THE PARTIES
Defence Position and Allegation of breaches
[35] The defence submits that the total 10(b) delay amounts to 7 hours and 49 minutes.
[36] The following is a timeline of events provided by the defence summarizing their position as it relates to the above delay:
OMAR MOHAMED – 10(B) TIMELINE
TIME
EVENT
February 27th, 2022
11:01am
Investigative Detention of Mohamed
DC George identified himself and asked if the male was Omarali Mohamed. The male confirmed his ID as Omar Mohamed. (with
ID perhaps)
11:03am
Arrest of Mohamed
11:08am
RTC and Caution
Mohamed requests to speak with counsel.
11:40am
Mohamed arrives at the Booking Hall Advised of charges, RTC and searched. Provided list of local lawyers and attempts to call counsel.
11:51am
Contacted Duty Counsel
12:13pm
Continue Investigation
DC Carson and DC George proceed to processing exhibits.
1:30pm
Continued Investigation
DC Carson re-attends Thunder Bay to review surveillance videos from Airport. DC Carson attempts to identify U-RIDE driver of Grey Hyundai.
Begins drafting ITO for CDSA SW at 975B Holt place. (@ 1200 Balmoral – Police Station)
6:00pm
Placed covert camera @ 975B Holt Place. Camera pointed at front door.
6:50pm
Second call to Duty Counsel
DC Carson confirmed Mohamed had not yet spoken to counsel.
6:52pm
RTC implemented with Duty Counsel (N. Clarke)
[37] It is the defence position that not only should any statements of Mr. Mohamed be excluded, but the evidence ‘obtained in a manner’ which violated his 10(b) Charter right to counsel should also be excluded.
[38] The defence submitted that the courts have adopted a broad interpretation of what is ‘obtained in a manner’.
[39] It is argued that the real issue on this Charter application rests in the 24(2) analysis and what emphasis to place on the Grant factors.
[40] It is advanced that the failure of the TBPS in this case is systemic in nature. As a result, in balancing all factors, the Grant analysis should favour the exclusion of the evidence.
[41] The defence further contended that this is the longest time in case law history for an implementation breach. It is argued that the longer the time to implement rights to counsel, the greater the breach.
[42] It is argued that based on the circumstances of this case and evidence provided by the officers, that perhaps aside for the first 50 minutes, there are no reasons why the implementation of the right should have been suspended.
[43] The defence submitted that the police violated Mr. Mohamed’s Charter-protected rights by failing to hold off in questioning him and by failing to implement his right to counsel. It is argued that these are serious breaches, they are systemic, unexplained and that all evidence obtained should be excluded.
Crown Position
[44] The Crown conceded that there was a breach of the duty to hold off until Mr. Mohamed spoke to counsel. DC George admitted that he questioned Mr. Mohamed after he was informed of his rights to counsel. Mr. Mohamed indicated that he wanted to exercise that right, and DC George ought to have waited until Mr. Mohamed had a chance to do so.
[45] In light of the foregoing, the Crown has indicated that it would not be relying on any statements made by Mr. Mohamed.
[46] The Crown submitted that the real issue and the most important factor will be whether the Court finds that there is a breach that is systemic in nature. It agrees with the defence that the issues essentially must be determined on the Grant analysis.
[47] It is advanced that the police officers were respectful of Mr. Mohamed’s 10(b) Charter-protected rights. This is not a case where these rights are completely ignored. It is noted that the police attempted to give effect to the 10(b) rights at the station by calling several lawyers, without success, and finally leaving a message for duty counsel.
[48] The Crown argued that there is no evidence that the delay in this case was systemic in nature. The seriousness of the section 10(b) Charter breach is tempered by the fact that no evidence is elicited from Mr. Mohamed during the wait period. There is no causal connection between any breach and the evidence obtained.
[49] Consequently, the Crown advanced that a consideration of the Grant factors should not result in the exclusion of the evidence.
THE LAW AND ANALYSIS
Section 10(b) – right to counsel
Section 10(b) – The Law
[50] Section 10(b) of the Charter guarantees to anyone arrested or detained the right “to retain and instruct counsel without delay and to be informed of that right”.
[51] There are two components to this right, an informational component and an implementational component, placing a duty on police to inform a detainee of his right to counsel immediately and if the detained person asserts that right, to provide a detainee with a reasonable opportunity to exercise his right to consult counsel without delay. (See: R. v. Suberu, 2009 SCC 33, R. v. Rover, 2018 ONCA 745; and R. v. La, 2018 ONCA 830.)
[52] The onus is on the applicant to establish a Charter violation on a balance of probabilities.
[53] As a general rule, section 10 Charter rights arise immediately upon arrest and detention.
[54] It has been recognized that in specific circumstances there may be justification in delaying the detainee access to counsel. Those circumstances often relate to police safety, public safety or the preservation of evidence. Such concerns must be case- specific rather than general concerns applicable to virtually any case. And even if such circumstances exist, the police must take reasonable steps to minimize the delay in granting access to counsel. (See: R. v. Rover 2018 ONCA 745, paras 27-28.)
[55] Once a detainee has been informed of his rights under section 10(b) of the Charter, and that person indicates their wish to speak to counsel, the police have a “duty to hold off” questioning or otherwise attempting to elicit evidence from the detainee. (See: R. v. Pileggi, 2021 ONCA 4 at para. 71.)
Section 10(b) - Analysis
[56] I find no breach of Mr. Mohamed’s 10(b) rights for the approximate 5 minutes which elapsed between 1103 hours and 1108 hours when Mr. Mohamed was placed under arrest and rights to counsel and caution were read.
[57] I further find that the delay of 32 minutes in implementing Mr. Mohamed’s rights to counsel until Mr. Mohamed’s arrival at the police station was reasonable. As explained by DC Carson, they attempted to remove Mr. Mohamed from public scrutiny at the Airport. It was stated that the police station would offer a secure, controlled and private area for Mr. Mohamed to speak with counsel.
[58] The officers testified that they had to request transport, as their vehicle was not equipped to transport an accused. I find that there was no time wasted. They immediately commenced the booking process upon arrival at the police station. They provided rights to counsel and caution, after a search of the accused completed, they started calling counsel.
[59] In R. v. Keshavarz, 2022 ONCA 312, the Court of Appeal for Ontario, indicated at para. 67 that the police were under no obligation to implement the right to counsel until after the appellant was in a safe and secure location where a private call with counsel could be facilitated. In that case, it was about two hours after his arrest, after the booking procedure had been completed and his safety and the safety of all was secured.
[60] In Pileggi, supra, (paras. 76-77) it was submitted that the appellant should have been afforded the opportunity to consult counsel while he was still in his house, before being transported to the police station. The Court of Appeal for Ontario disagreed and stated that consultation in private is a vital component of the section 10(b) rights and that the appellant’s right to consult counsel in private would have been compromised by attempting to facilitate contact at the house while a search was underway.
[61] It is acknowledged that the circumstances in Keshavarz, supra, were such that the appellant was arrested at the scene of a high risk take down. Despite the difference in circumstances, I find that the police were justified in removing Mr. Mohamed from the public eye, and then waiting until they were back at the station, the booking complete, searches done, prior to implementing the rights to counsel. Mr. Mohamed was arrested in a public international airport. The officers testified that they were not aware of a private place where Mr. Mohamed could have called counsel in private.
[62] It is conceded by the Crown that there was a breach of Mr. Mohamed’s Charter rights, when police failed to hold off questioning after providing Mr. Mohamed with his rights to counsel and prior to the implementation of those rights. In this regard, the Crown has indicated that it would not rely on any of the statements and/or utterances made by the accused.
[63] I find that the police breached Mr. Mohamed’s 10(b) rights by failing to hold off questioning prior to the implementation of those rights.
[64] Finally, I find that there was a breach of Mr. Mohamed’s rights under section 10(b) of the Charter for the unexplained delay in accessing counsel for approximately 7 hours, from approximately 1151 hours when the first call was made to duty counsel until 1852 hours when DC Carson placed a second call to duty, and Mr. Mohamed was placed in the privacy booth to speak with counsel.
[65] This results in a breach to implement Mr. Mohamed’s rights under 10(b) of the Charter. I do note that the officers partially complied with their obligations. They did try to implement Mr. Mohamed’s right to counsel, but their failure to follow through, and make sure that there was timely contact with counsel, results in a breach.
Section 24(2) – should the evidence obtained in violation of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) right be excluded?
[66] Having found that the defendant has established a Charter breach, I must now turn to the remedy being sought by the defendant to exclude the evidence obtained in consequence of that breach. In this regard, each case requires a case specific analysis of all the circumstances to determine whether the relief sought should be granted.
[67] The framework governing the exclusion of evidence pursuant to s.24(2) of the Charter is set out by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32.
[68] The Court must balance and assess the effects that the admission of the evidence would have on society’s confidence in the justice system considering:
(i) The seriousness of the Charter-infringing state conduct;
(ii) The impact of the breach on the Charter-protected interests of the accused; and,
(iii) Society’s interest in the adjudication of the case on its merits.
[69] Section 24(2) does not create an automatic exclusionary rule when evidence is obtained in a manner that infringes a Charter right.
[70] The accused has the onus of establishing that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute. (See: R. v. Hobeika, 2020 ONCA 750, at para. 76, R. v. Lenhardt, 2019 ONCA 416, at para. 11, and R. v. Fearon, 2014 SCC 77 at para 89)
[71] The phrase “obtained in a manner” has been given a very broad reading and generous view by the Courts. The Court of Appeal for Ontario states as follows in R. v. Griffith, 2021 ONCA 302 at para. 52:
52 Courts have taken a "very broad reading" and "generous view" of the phrase "obtained in a manner" under s. 24(2), the threshold requirement of whether the admission of the evidence would bring the administration of justice into disrepute: Hobeika, at para. 77; R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at para. 101. The jurisprudence has accepted that courts should examine the "entire 'chain of events' between the accused and the police": R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 72; Pileggi, at para. 101. The connection between the breach and the discovered evidence may be "causal, temporal, or contextual, or any combination of these three connections", as long as the connection is not "too tenuous or too remote": Pino, at para. 72; Pileggi, at para. 101; see also R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21; and Rover,
at para. 35.
[72] In this case, the Crown did not dispute that the evidence was “obtained in a manner”. What the Crown advanced was that there was no causal connection between the evidence obtained and any breach. It argued that the failure to hold off questioning would fit the temporal and contextual connection, and that any other breach would be in the realm of the contextual connection.
[73] The Court of Appeal in Griffith, supra, at para. 55 made some comments that are equally applicable in this case:
55 The trial judge may have misspoken when he said there was no temporal or contextual connection between the evidence and the s. 10(b) breach. If he did not misspeak, he was in error. Although the evidence was not causally connected to the breach of s. 10(b) because it was discovered before the breach, there was no basis to find that it was not temporally or contextually connected to the breach or that the connection was tenuous or remote. The discovery of the evidence and the s. 10(b) breach all arose from the same transaction -- the appellant's arrest: see Pino, at para. 73. The connection was temporal because the discovery of the evidence was relatively close in time to the s. 10(b) breach and part of the continuum of events arising from the appellant's arrest: see Pino at para. 74. The connection was also contextual because the discovery of the evidence arose out of the same events flowing from the appellant's arrest that led to the s. 10(b) breach: see Pino, at para. 74. Neither connection was tenuous or remote.
[74] In this case, although the breach was not causally connected, it was nonetheless temporally and/or contextually connected and the connection was not tenuous or remote.
[75] There need not be a causal relationship to establish a case for exclusion under section 24(2), but the absence of any such connection is a factor weighing against exclusion. (See: Lenhardt, supra, at para. 11; Pileggi, supra, at paras. 107-108)
[76] As was the case in Griffith, supra, it is clear that the discovery of the evidence and the section 10(b) breach all arose from the same transaction, Mr. Mohamed’s arrest. The connection was temporal because the discovery of the evidence was relatively close in time to the section 10(b) breach and part of the continuum of events arising from Mr. Mohamed’s arrest. Further, the connection was contextual as the discovery of the evidence arose out of the same events flowing from Mr. Mohamed’s arrest that led to the section 10(b) breach.
[77] As a result, I find that section 24(2) of the Charter was engaged. I now turn to the three lines of inquiry under the Grant analysis.
Seriousness of the breach
[78] The first line of inquiry is to consider whether the conduct is such that the courts are required to dissociate themselves from it because its admission would undermine public confidence in the rule of law. The main concern is to preserve public confidence in the rule of law and its process. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct.
[79] A complete disregard of the Charter rights of an accused, even where there has been no bad faith on the part of the police officer, is serious and should not be condoned.
[80] A systemic problem or pattern of Charter-infringing conduct is an aggravating factor that supports exclusion.
[81] In this case, the breach as it relates to section 10(b) was not overly serious in the circumstances.
[82] It is acknowledged that the officers failed to hold off in questioning the accused, which does increase to a certain extent the seriousness of the breach. However, the officers did not interrogate and persistently question the accused during this period of time. It was a rather simple question that should not have been posed.
[83] It should be noted that there was no evidence tendered that this question was even answered by Mr. Mohamed. Although, it does not absolve the officer’s wrongdoing, nothing incriminating was obtained as a result of the breach.
[84] Furthermore, at the time the accused was questioned, the suitcase and drugs had already been found. It would not have made any difference in the investigative detention, incidental search and seizure of the drugs.
[85] The evidence obtained at Holt Place was obtained pursuant to a lawfully executed CDSA warrant. It is acknowledged that the key to access the Holt Place, was obtained subsequent to the search incident to arrest of Mr. Mohamed.
[86] In particular, there was no causal connection between the breach of the section 10(b) Charter protected rights and the evidence sought to be excluded. The breach was not a contributing factor to the seizure of the evidence.
[87] The Crown has already conceded the breach and has agreed not to rely on any utterance and/or statement made by the accused prior to him speaking with counsel. The concession extends beyond the mere question left unanswered by Mr. Mohamed. It includes as well any other statements he made while at the police station.
[88] It was advanced by the defence that this was a systemic issue.
[89] Based on the evidence presented, I do not find that the breach was systemic in nature.
[90] The officers testified that the jailers would benefit from additional training and more resources. This was more of a general comment made by the officers. There was no evidence on how busy the jailer was that day, or that there were any such contributing factors impacting the follow up that did not occur.
[91] There were also comments made on the efficiency of the system. I interpret the evidence of the officer as frustration in having to call several lawyers from a list, on a Sunday, and only speaking to one counsel.
[92] I find that the evidence tendered does not support a finding that the delay in Mr. Mohamed speaking to counsel can be attributed to a systemic issue. There was no evidence of a pattern of ignoring constitutional rights, of a deliberate decision to do so, or any evidence of other constitutional breaches while Mr. Mohamed was detained.
[93] There was an unusual and unexplained delay. I cannot assume that it was the result of miscommunication between the officer and jailer, or that the jailer simply forgot. Whatever the cause, Mr. Mohamed was left to wait for a lengthy period before speaking to counsel. It was an unacceptable and serious breach.
[94] In Griffith, supra, the Court of Appeal for Ontario concluded that the delay was a fact-specific oversight and not a systemic or intentional breach of the appellant’s 10(b) rights. Nonetheless, it went on to state at para. 66 that:
66 Even if unintentional, what happened here reflected an unacceptably negligent approach to safeguarding the appellant's s. 10(b) rights. The police conduct violated an established constitutional obligation. As this court has noted, "[t]he law around s. 10(b) is clear and long-settled. It is not difficult for the police to understand their obligations and carry them out": R. v. Noel, 2019 ONCA 860, at para. 34. The officers' collective negligence in failing to uphold the appellant's s. 10(b) rights precludes a finding of good faith: see Le, at paras. 143, 147; Pileggi, at para. 119; and Hobeika, at para. 81.
[95] In light of the foregoing, I find that even if the breach was not deliberate or systemic or part of a pattern of police misconduct, it was a serious breach.
Impact of the Breach on the Accused
[96] This inquiry focuses on the seriousness of the impact of the breach on the Charter- protected interest of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The court must look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests.
[97] The seriousness of the infringement requires an examination of the interests engaged by the particular right or rights violated.
[98] In Rover, supra, the Court of Appeal for Ontario stated as follows at paragraph 45 as it relates to 10(b) rights:
“45 The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.”
[99] The denial of this right did impact the accused’s interests. However, I fail to see how giving the accused the opportunity to call a lawyer would have changed the outcome.
[100] Given the nature of the matter, the drugs were found prior to and independently of any Charter violation. The investigation leading police to Holt Place and obtaining a CDSA warrant, would also have occurred independent of any Charter violation.
[101] The Court of Appeal for Ontario in Griffith, supra, at para. 71, stated as follows:
71 In appropriate cases, the lack of a causal connection can mitigate the impact of the infringement: Grant, at para. 122; Rover, at para. 43; and Pileggi, at para. 120. I also note that the police did not try to elicit information from the appellant, thus avoiding an aggravating feature found in several other cases: see e.g., La, at paras. 47- 48; McSweeney, at paras. 79-80; R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at pp. 1242-43,
1245; and R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, at pp. 280, 284.
[102] It is noted, that unlike the situation in Griffith, supra, there was a question posed to the accused. However, as stated above, there was no evidence led as to any answer given to the question. Mr. Mohamed was not queried any further, he did not make any incriminating comments. In fact, while in the booking room, when he attempted to say something to the officer, he was told that he should not say anything.
[103] In Keshavarz, supra, J.M. Fairburn A.C.J.O., noted that the actual impact of the breach on the appellant’s Charter-protected interests was not particularly serious. At no point did the appellant incriminate himself and there was no indication that his liberty would have been obtained any earlier had the breach not occurred. There was also no causal connection between the breach and the discovery of the Glocks, which had been lawfully seized. The Glocks were seized hours before the section 10(b) breach even occurred. This it was found lessened the impact of the breach on the appellant’s Charter- protected interests, making admission more likely. It was also stated that it was entirely appropriate to consider the lack of a causal connection in calibrating seriousness under the second stage of the Grant analysis. (See: Keshavarz, supra, at paras. 113-116.)
[104] Very recently, in another case, R. v. Griffith, 2023 ONCA 822, a decision released on December 12, 2023, the Court of Appeal for Ontario at paragraph 36, found that the trial judge, in considering the second prong of Grant, supra, appropriately concluded that, “the evidence was ‘independently discoverable’” and that the impact upon the accused’s constitutional rights was accordingly diminished. It was open to the trial judge to make such a finding and it did not constitute double counting for the purposes of the Grant analysis.
[105] In the case at hand, it was also clear from the evidence that Mr. Mohamed would not be released from custody. He was being held until the following day for bail. As a result, this is not a situation where speaking to counsel earlier would have impacted Mr. Mohamed’s liberty rights.
[106] Finally, the seriousness of the impact of the 10(b) Charter breach was not compounded by interference with any other Charter-protected interest.
[107] Considering the above, I find that the impact of the section 10(b) breach on Mr. Mohamed’s Charter-protected interests was moderate.
Society’s Interest in the Adjudication on the Merits
[108] The third line of inquiry asks whether the truth-seeking function of a criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society’s collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to law.
[109] The court must consider both the impact of admission of the evidence, and the impact of failing to admit the evidence, on the repute of the administration of justice.
[110] The reliability of the evidence is an important factor in this line of inquiry, and so is the significance of the evidence to the case for the Crown. Reliable evidence critical to the Crown’s case will generally pull towards inclusion. (See: Griffith, supra, at para. 76, Harrison, supra, at paras. 33-34; McGuffie, supra, at para 62; and McSweeney, supra, at para. 81.)
[111] The Court of Appeal for Ontario in R. v. St. Clair, 2021 ONCA 895, has stated the following in addressing the final prong of the Grant analysis:
49 The trial judge was alive to these factors and found it "important to recall ... that the City of Toronto and the greater Toronto area continue to be troubled by gun violence and drug trafficking - offences which seem all too frequently to be committed in tandem, and often with tragic results." The trial judge found that exclusion of reliable evidence, essential to a prosecution of very serious offences, would bring the admission of justice into disrepute, and that this factor favours the admission of the cocaine, the ammunition, the magazine, and the handgun. I see no basis to interfere with this finding.
[112] There is no question that the evidence obtained from the search is relevant and reliable evidence. Without this evidence the Crown’s case fails.
[113] A consideration of the interest of society in the full adjudication of drug offences favours inclusion of the evidence in this case.
Balancing the Factors
[114] The final step in the section 24(2) analysis involves balancing the factors under the three lines of inquiry to assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice. The Supreme Court of Canada in R. v. Harrison, 2009 SCC 34, [2009] S.C.J. No. 34 at para. 36 in its analysis of the Grant factors, states that the balancing exercise mandated by s.24(2) is a qualitative one, not capable of mathematical precision.
[115] It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of the inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interest of the criminal justice system. Nor is the converse true. In all cases, it is the long- term repute of the administration of justice that must be assessed.
Case Law
[116] The parties referred to several authorities in oral submission and in their facta. I do not intend on reviewing all of them but felt that there is merit in referring to what I find are the most pertinent authorities to this analysis; some of which I already mentioned above.
[117] In R. v. Griffith 2021 ONCA 302, the appellant’s right to counsel under 10(b) of the Charter was delayed for several hours while the police executed search warrants at his apartment and storage locker. It was found that police were justified in delaying access to counsel while they executed the search warrant as there were case specific concerns for officer safety.
[118] It was the unexplained breach of one hour and twenty minutes after the search warrants were executed that was found to have breached the appellant’s section 10(b) rights. Despite the foregoing, the court did not exclude the evidence under section 24(2) of the Charter. The Court of Appeal for Ontario stated the following at para. 79:
79 Here, I have concluded that the evidence was properly admitted under s. 24(2). I say this for several reasons. The breach of s. 10(b), although serious, appears to have been situation-specific and isolated, rather than institutional or systemic. It has not been established that the breach was deliberate or intentional. The breach only moderately impacted the appellant's Charter-protected interests. The evidence, consisting of the loaded gun and drugs, was obtained through a lawful search incident to arrest and, because it was not causally related to the s. 10(b) breach, was not compromised by the breach of s. 10(b). In these circumstances, excluding the evidence would only punish the police -- which is not the purpose of s. 24(2) -- and would damage, rather than vindicate, the long-term repute of the criminal justice system: Grant, at para. 70; Hobeika, at para. 90; and Pileggi, at para. 127. It would allow an apparently unintentional, situation-specific police-slip that had only a moderate impact on Charter-protected interests to lead to the acquittal of an armed and dangerous drug trafficker in a city already plagued by gun violence.
[119] In R. v. Keshavarz, 2022 ONCA 312, the police found firearms in the search of a vehicle, incident to the appellant’s arrest. The appellant was advised of his rights to counsel, but the right was not facilitated until one hour after the police obtained and executed three search warrants, including one for the appellant’s home, where the police found seven other firearms.
[120] The Court of Appeal for Ontario found that the section 10(b) breach commenced when the police failed to implement the right to counsel at the earliest possible opportunity, in other words, as soon as the searches were complete. It was found that the breach was serious but the impact of the breach on the appellant’s Charter-protected interests was not particularly serious. There was no causal connection between the breach and the discovery of the firearms. The breach was not systemic. There was no pattern of Charter misconduct. The firearms were reliable evidence essential to the Crown’s case. Society’s interest in the adjudication on the merits favoured admission.
[121] The Court of Appeal for Ontario concluded that the first line of inquiry pushed towards exclusion, the second was somewhat neutral at best, and the third pushed towards inclusion. The evidence was not excluded.
[122] In R. v. Pileggi, 2021 ONCA 4, the Court of Appeal for Ontario concluded that the police violated their duty to hold off by attempting to elicit evidence from the appellant before he could retain counsel. Furthermore, the failure of the police to facilitate contact with counsel of choice and the three-hour delay in putting the appellant in contact with duty counsel, also violated the appellant’s 10(b) rights.
[123] The Court found that in combination, the infringements of the appellant’s rights under section 10(b) were serious. In commenting on the duty to hold off, the court states that the officer’s question was “entirely inappropriate”. However, the court accepted the respondent’s characterization of the exchange as “fleeting and inconsequential”, stating that no further evidence was obtained as a result of the questioning.
[124] It was further indicated that the implementation breach was unintentional and occurred largely due to a lack of communication between police officers. The breach was more situation specific and lacked some of the aggravating factors found in other cases, noting for example that it was not systemic.
[125] The Court distinguished the matter from R. v. Noel, 2019 ONCA 860, wherein no attempts were made to call counsel until three hours after arrest. Nor was it ever confirmed that the appellant had spoken to counsel. In Noel the court found the breach to be serious, noting that from the beginning, the police appear to have had a somewhat cavalier attitude regarding the right to counsel without delay.
[126] In Pileggi, the Court found that the seriousness did not rise to the level of carelessness demonstrated in Noel. It was noted that although the officer dropped the ball by failing to follow up, he diligently attempted to enlist the assistance of duty counsel.
[127] The Court stated that it would not describe the impact on the appellant’s Charter- protected interests as serious. It noted that there was no causal connection. That the failure to hold off had a minimal impact. Finally, society’s interest favored its inclusion.
[128] It was found that exclusion of the evidence would only serve to indirectly punish the offending officers, rather than aligning with the overall purpose of section 24(2). The Court declined to exclude the evidence.
Application to this case
[129] In summary, the police found concealed in a suitcase, a substantial quantity of drugs. They were investigating a serious crime.
[130] This is not a situation where the officers completely ignored the Charter-protected rights of the accused. Mr. Mohamed was informed of the reason for his arrest. He was provided with his rights to counsel and cautioned.
[131] The officer candidly admitted that he should not have asked Mr. Mohamed any questions before they had the opportunity to implement his rights to counsel. The officer did not interrogate Mr. Mohamed. His question did not illicit, at least on the evidence I heard to date, an answer from Mr. Mohamed.
[132] It can’t be said either that the officers did not implement Mr. Mohamed’s rights to counsel. They did to a certain extent by making several calls to selected lawyers. Where they failed was in the lack of follow through. They ought to have ensured that the accused spoke to counsel without delay.
[133] There is no excuse for senior officers delegating their duty to the jailer to see to it that the accused’s right to speak to counsel had been fully implemented. An aggravating factor is the length of time that passed before DC Carson realized that Mr. Mohamed had not yet spoken to counsel. In Keshavarz, supra, at para. 121, the Court of Appeal for Ontario noted that “exclusion does not follow from the length of the breach per se”.
[134] When DC Carson became aware of the issue, he immediately contacted Legal Aid Ontario again and put Mr. Mohamed in touch with duty counsel.
[135] In R. v. Thomas, 2023 ONCJ 531, a recent decision of this Court by Duncan J, it was found that the delay of 13 hours in implementing 10(b) Charter rights did not favour exclusion of the firearm under the Grant analysis. The firearm was ultimately excluded as a result of a serious section 7 Charter breach. I do note that this matter was decided on November 2, 2023, and may not have been brought to the attention of counsel. I simply mention it, as an example of another case wherein a lengthy delay resulting in a 10(b) breach does not necessarily lead to exclusion of evidence.
[136] There is no question that the officers dropped the ball. In the circumstances of this case and based on the evidence offered, although serious, I do not find that this was a systemic issue. It has not been established that the breach was deliberate or intentional. Furthermore, as was the case in Griffith, supra, and Keshavarz, supra, the evidence was obtained lawfully. It was not causally related to the section 10(b) breach. It was not discovered through the breach of the section 10(b) Charter right.
[137] Consequently, in examining the above factors through the lens of the s. 24(2) analysis set out in Grant, supra, I find that a balancing of the factors does not favour the exclusion of the evidence. The breach itself is unrelated to the seizure of the evidence. The police did not act in bad faith. Although they did question the accused, it was fleeting in nature, and they did not obtain any incriminating statement from him. The evidence was lawfully obtained and not causally connected with the breach.
[138] I conclude that the admission of the evidence would not bring the administration of justice into disrepute.
Holt Place
[139] Although I have included in the above analysis any evidence obtained from the execution of the search warrant at Holt Place, I will briefly make a few separate comments. Submission in this regard, were brief, and almost an afterthought upon my inquiry into the issue.
[140] Counsel indicated that much of the same arguments applied to the evidence obtained at Holt Place. In sum, the evidence obtained can be summarized by the Crown as indicia that Mr. Mohammed had been at Holt Place. The Crown will argue that the other items discovered at the residence are tools of the trade and point to drug trafficking.
[141] It is noted that the defence has agreed that the quantity of drugs suggests that they were possessed for the purpose of trafficking. Whatever weight is to be placed on any of this evidence will be of course determined at trial.
[142] I have addressed, in the above reasons, not only the drugs found in the suitcase, but the evidence obtained from Holt Place. The search warrant was executed after rights to counsel were implemented and over 24 hours after the arrest. There were no challenge to the ITO. The connection between the accused and Holt Place, is not clear at this stage. The evidence is that the Uride drove him from the Holt Place location to the Airport and there were baggage tags with Mr. Mohamed’s name located there.
[143] I find that the connection between the evidence obtained in consequence of the lawful execution of a search warrant, is even more remote to the Charter breach.
CONCLUSION
[144] In summary, I find that the accused Charter rights under section 10(b) were infringed. However, upon analysis under s. 24(2) of the Charter, a balancing of the factors in Grant does not warrant the exclusion of the drugs and evidence obtained.
[145] The defendant’s application to exclude evidence under section 24(2) of the Charter is therefore dismissed.
Released: December 20, 2023
Signed: Justice C. M. Brochu