Ontario Court of Justice

Date: 2024.01.19 Court File No.: Toronto # 21-55002857

Between:

HIS MAJESTY THE KING

— AND —

FUAD ABDULLAHI

Reasons for Judgment

Released on January 19, 2024

Counsel: Ms. S. Lewis, for the Crown Mr. J. Christie, for Mr. Abdullahi

BAND J.:

I. Introduction, Issues and Positions of the Parties

[1] In the early morning hours of August 22, 2021, a concerned motorist called 911 to report that she had come upon Mr. Abdullahi sitting in a car at an intersection for two traffic light cycles. He appeared to be passed out. When the first police officer arrived, the car was in drive and Mr. Abdullahi’s foot was on the brake pedal. The officer had to rouse him in order to remove him from the car and turn off the ignition. Mr. Abdullahi was then arrested almost immediately for impaired driving. He was not immediately told of the reason for his arrest, and there was a delay before he was advised of his right to counsel. Later, at the police station, he refused verbally and unequivocally to comply with an officer’s demand that he provide breath samples into an approved instrument. He was charged with impaired driving and refusing to provide breath samples, contrary to ss. 320.14(1)(a) and 320.15(1) of the Criminal Code.

[2] Footage from the various officers’ body worn cameras (BWCs) and the booking hall make it obvious that Mr. Abdullahi’s ability to operate a motor vehicle was significantly impaired by his consumption of alcohol. His refusal was clear and unequivocal. As a result, the triable issues were limited to the Charter of Rights and Freedoms. Mr. Christie argued that the police violated Mr. Abdullahi’s ss. 10(a) and (b) rights by:

A. failing to advise him immediately of the reason for his detention;

B. failing to advise him immediately of his right to counsel;

C. failing to “hold off” on questioning him about his consumption of alcohol pending his right to counsel and eliciting an incriminating response;

D. failing to follow up, at the scene, to ensure that he responded to the question whether he had a lawyer; and

E. “funneling” him toward the services of Duty Counsel once at the station.

[3] As a remedy, Mr. Christie sought the exclusion of the utterance that Mr. Abdullahi made at the scene, the police observations of him and his refusal to provide breath samples. In doing so, he urged me to reach the same conclusions that Justice Stribopoulos (as he then was) had in R. v. Evans, 2015 ONCJ 305.

[4] The Crown initially argued that Mr. Abdullahi’s Charter rights were not violated at the scene or at the station. During oral argument, the Crown conceded that the police had failed to hold off on questioning Mr. Abdullahi and that his response to their question warranted exclusion. Beyond that, however, the Crown invoked the “fresh start” doctrine and argued that the remaining evidence was not “obtained in a manner” that violated Mr. Abdullahi’s rights. The stated reason is that Mr. Abdullahi’s consultation with Duty Counsel severed any connection between the alleged breaches and his refusal to comply with the breath demand. In the alternative, the Crown argued that Evans, supra, is distinguishable [1], that any Charter breaches were minor and that the admission of the evidence would not bring the administration into disrepute.

[5] The trial proceeded in “blended” fashion. Mr. Abdullahi called no evidence.

II. Analysis

A. Did the police violate Mr. Abdullahi’s s. 10(a) rights?

[6] The parties agree that s. 10(a) imposes an obligation on police to inform persons of the reason for their detention immediately. The question then is what the person could reasonably have gleaned from what the police told them: see R. v. Mueller, 2018 ONSC 2734 at para. 18 and R. v. Gardner, 2021 ONSC 3468 at para. 35 (S.C.A.C.).

[7] In this case, PC Callender, the first officer on scene, found Mr. Abdullahi asleep in the driver’s seat. There was an empty tumbler on the passenger seat, like a rocks glass. When he removed Mr. Abdullahi from the car, he smelled an odour of alcohol and arrested him immediately at 2:29 a.m. Other officers arrived at around the same time. Mr. Abdullahi asked them why he was being handcuffed. The first response was “because you were sleeping in your car in the middle of the road.” He was then asked if he was on any medication and why he had been asleep. Again, he asked why he was in handcuffs at 2:31 a.m. At that point, an officer asked him if he had been drinking. By 2:33 a.m., he was told explicitly that he was being arrested for impaired driving.

[8] Even though it might have been obvious to the officers and anyone watching the police footage that Mr. Abdullahi was being arrested in relation to a drinking and driving investigation, his repeated questions demonstrated that it was not at all obvious to him. By telling him that it was because he had been asleep behind the wheel, the officers did not provide enough information to enable him to understand why he was being arrested or that he was subject to a criminal investigation (as opposed to a Highway Traffic Act investigation, for instance). This constituted a violation of the informational component of his s. 10(a) rights. The breach lasted for approximately two minutes, until an officer asked him if he had been drinking. At that point, Mr. Abdullahi could have been under no other impression but that he was being investigated for a drinking and driving offence.

B. Did the police fail to advise Mr. Abdullahi of his s. 10(b) rights immediately?

[9] While the parties agree that Mr. Abdullahi was arrested at 2:29 a.m. and that he was not advised of his right to counsel until four minutes later, at 2:33 a.m., they disagree as to the legal significance of the four-minute delay.

[10] During those four minutes, officers placed Mr. Abdullahi in handcuffs, did a quick safety pat-down and arranged for a police vehicle to be moved so that he could be placed in it. There were two reasons for this. First, all of them were standing on the roadway, and cars were going by. Second, Mr. Abdullahi is a relatively large man, and they felt that the rear seat of a police SUV would be more comfortable for him than a standard cruiser. Then, they had a brief discussion as to what rights and demands had to be read to him. PC Preston was new on the job and they directed her accordingly.

[11] In my view, the officers were entitled to briefly delay the reading of Mr. Abdullahi’s rights in order to perform the tasks that I have just described: see R. v. Fisk, 2020 ONCJ 88 at para. 51 and R. v. Agnihotri, 2019 ONCJ 551 at para. 9. This brief delay did not violate Mr. Abdullahi’s s. 10(b) rights. [2]

C. Did the police fail in their s. 10(b) obligation to “hold off”?

[12] At 2:31 a.m., Mr. Abdullahi was under arrest but had not yet been advised of his right to counsel. An officer asked him if he had been drinking and he replied in the affirmative. The Crown has conceded that the questioning breached Mr. Abdullahi’s s. 10(b) right and that his admission ought to be excluded.

D. Did the police failure to follow up at the scene breach Mr. Abdullahi’s s. 10(b) rights?

[13] PC Preston read Mr. Abdullahi his rights carefully from the back of her memo book. He made her repeat the reason for his arrest. She then asked him if he had a lawyer. He did not reply to that question and neither PC Preston nor the other officers within earshot followed up.

[14] This failure to follow up does not amount to a breach of Mr. Abdullahi’s s. 10(b) rights in the circumstances of this case. At this point, PC Preston was informing Mr. Abdullahi of his rights. While failing to follow up on the question of counsel of choice may amount to a breach of the police’s implementational duties, I know of no authority in which it was held to constitute a violation of the informational component. I would add here that there was no argument in this case that Mr. Abdullahi ought to have been given access to counsel at the roadside.

E. Did PC Preston “funnel” Mr. Abdullahi to Duty Counsel?

[15] Mr. Abdullahi invoked his right to counsel at the scene. PC Preston testified that once at the station, when she returned to the question of Mr. Abdullahi’s rights to counsel in a room off the booking hall, she told him that he could call a personal lawyer if he wished. He replied “that’s my personal information; I don’t want to tell you” and then opted to speak to Duty Counsel. None of this was captured on video.

[16] Mr. Christie argued that I should reject PC Preston’s evidence concerning Mr. Abdullahi’s response because PC Preston did not have her BWC on at the time. This is unlike a period later, when she and PC Moore had their BWCs on while serving papers on Mr. Abdullahi in the cells prior to his release. PC Preston testified that she believes such filming runs counter to internal police policy.

[17] While it appeared to me that PC Preston was labouring under some confusion as to the internal police policy concerning filming within the station, I believed her testimony about her exchange with Mr. Abdullahi, which she had memorialized in her memo book. Aside from the fact that I saw no reason to disbelieve her, the exchange she described was consistent with Mr. Abdullahi’s oppositional behaviour throughout the investigation.

[18] PC Preston properly implemented and facilitated Mr. Abdullahi’s right to counsel according to his stated wishes that night.

F. Should evidence be excluded due to violations of any of Mr. Abdullahi’s Charter rights?

[19] I reject the Crown’s argument that a s. 24(2) analysis is not required in this case for three reasons. First, I remind myself that whether evidence was “obtained in a manner” is a threshold issue that calls for a generous approach: R. v. Wittwer, 2009 SCC 33 at para. 21; R. v. Pino, 2016 ONCA 389 at paras. 54 et seq. Second, how this argument would apply to the evidence relating to the impaired count is not clear to me. Third, it is more economical (and fairer to Mr. Abdullahi) to proceed on the assumption that the threshold issue has been met.

[20] Section 24(2) of the Charter allows a court to exclude evidence where admitting it would bring the administration of justice into disrepute. In R. v. Grant, 2009 SCC 32, at paras. 68-70, the Supreme Court explained this concept:

The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.

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

[21] I must consider three factors: (1) the seriousness of the violations; (2) the impact of the violations on the accused's Charter-protected interests; and (3) society’s interest in the adjudication of the case on its merits (ibid, at para. 71). The focus must be on the long-term and prospective effect of a remedy or lack of remedy.

(i) Seriousness of the breaches

[22] The police breached Mr. Abdullahi’s rights by failing to immediately inform him of the reason for his arrest and by asking him if he had been drinking in violation of their duty to “hold off.” While I do not find that any officer acted in bad faith or deliberately, they violated basic and well-entrenched constitutional principles in both respects. This was negligent. However, unlike the Evans case, there is no evidence of a systemic issue in terms of their legal training. This factor favours exclusion somewhere on the spectrum between moderately and strongly.

(ii) Impact on Mr. Abdullahi’s Charter-protected interests

[23] Sections 10(a) and 10(b) operate together. The Ontario Court of Appeal explained their interrelated purposes succinctly in R. v. Nguyen, 2008 ONCA 49 at para. 20:

while the main purpose of s. 10(a) is to inform an individual of why he or she is being detained, it also has an important secondary aspect as an adjunct to the right to counsel conferred by s. 10(b). Specifically, the purpose of s. 10(a) is also to inform an individual of the extent of his or her jeopardy such that he or she can exercise the right to counsel conferred by s. 10(b) in a meaningful way. The purpose of s. 10(b), in turn, is to ensure that an individual subject to detention or arrest understands his or her right to silence and can make a meaningful choice about whether to exercise it.

[24] At para. 21, the Court continued:

Once detained, an individual is at the mercy of state actors. Thus, in circumstances where the informational component of s. 10(a) of the Charter is easy to fulfill - as it was in this case - the breach of the obligation to provide that information cannot be considered a trivial matter. We say this because, as the jurisprudence illustrates, the right against self-incrimination is fundamental to the spirit of s. 10 of the Charter.

[25] Mr. Abdullahi was in a vulnerable position and subjected to questioning while under arrest before being advised of his right to counsel. For the first two of the four minutes of delay, he had insufficient information as to the reasons for his detention when it would have been easy for the police to tell him what they were right away.

[26] The breach of his s. 10(a) rights was brief. The breach of his s. 10(b) right was more meaningful, given its impact on his right against self-incrimination. However, I am satisfied that the investigation would have unfolded exactly the same way had the breaches not occurred. Mr. Abdullahi’s impairment was obvious and the police arrested him, based on ample grounds, almost immediately upon their arrival and before he was asked whether he had been drinking.

[27] This factor strongly favours the exclusion of Mr. Abdullahi’s response about drinking. If it favours excluding the remainder of the evidence at all, however, it does so only negligibly: see R. v. Côté, 2011 SCC 46 at para. 69.

(iii) Society’s interest in a prosecution on the merits

[28] As the Supreme Court of Canada has indicated on several occasions, society has a very strong interest in the prosecution of drinking and driving offences. The evidence that Mr. Christie asks to be excluded in this case is extremely strong and reliable. It is captured on video. The Crown’s case on both counts depends upon it. With respect to the police observations, the video footage and Mr. Abdullahi’s unequivocal refusal, this factor pulls strongly in favour of admission. With respect to his answer to the question whether he had been drinking, much less so.

(iv) Balancing

[29] On balance, I find that the admission of Mr. Abdullahi’s response that he had been drinking would bring the administration of justice into disrepute. However, the admission of the remainder of the evidence would not bring the administration of justice into disrepute in the short or long term. To the contrary, its exclusion would.

III. Conclusion

[30] The Crown has proved Mr. Abdullahi’s guilt on both counts beyond a reasonable doubt.

Released: January 19, 2024 Justice Patrice F. Band

Footnotes

[1] In that case, also involving a drinking and driving investigation, the arresting officer did not inform the accused of the reason he was being detained; instead, he asked him questions about his comings and goings. When the accused admitted that he was coming from a bar, the officer did not provide him with sufficient information about the reason for his detention. The accused was not informed of his right to counsel until 14 minutes after the being arrested. Moreover, the police violated the accused’s s. 8 rights by failing to make the breath demand in a timely fashion. Referring to it as a “close case,” Justice Stribopoulos excluded the evidence pursuant to s. 24(2). In doing so, His Honour found that the arresting officer’s ignorance of basic and well-established constitutional obligations “potentially point[ed] to a larger systemic issue in terms of the legal training provided to members of the Peel Regional Police Service.”

I agree with Crown Counsel that Evans is distinguishable from this case.

[2] I also note that at 2:31 a.m., an officer told Mr. Abdullahi “you’ll get your rights to counsel.”