ONTARIO COURT OF JUSTICE DATE: 2024 11 28 COURT FILE No.: Toronto 22-30004539

BETWEEN:

HIS MAJESTY THE KING

— AND —

ROYDEL RAMSAY-MORRIS

Before: Justice Derek Ishak

Heard on: April 24, 25, 30, May 28, Sept 9, 11 and 16, and November 1, 2024 Reasons for Judgment released on: November 28, 2024

Counsel: S. Reid, counsel for the Crown M. Wyszomierska, counsel for the accused Roydel Ramsay-Morris

ISHAK J.:

I. Overview of the case

[1] On September 27 to 28, 2022, two search warrants were executed by the Toronto police. During the execution of the second search warrant a loaded firearm was located.

[2] As a result of the investigation, Mr. Ramsay-Morris now stands charged with multiple firearm-related offences.

[3] At trial, Mr. Ramsay-Morris was arraigned on all counts and a Charter application was filed alleging several breaches of his Charter-protected rights, specifically his s. 10(a) and 10(b) rights. Based on those alleged breaches, Mr. Ramsay-Morris submits the firearm, and its associated ammunition should be excluded pursuant to s. 24(2) of the Charter.

II. Foundational Principles

[4] Mr. Ramsay-Morris is presumed innocent. He does not have to prove anything. He does not have to raise a reasonable doubt. The Crown must prove the essential elements of each offence beyond a reasonable doubt. This burden of proof rests squarely on the Crown throughout the trial and never shifts to the accused.

[5] In R. v. Lifchus, [1997] 3 S.C.R. 320, the Supreme Court of Canada explained the meaning of reasonable doubt. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

[6] Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However, I must remember that "the reasonable doubt standard ... falls much closer to absolute certainty than to proof on a balance of probabilities" (see R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 at para. 242).

III. The Position of the Parties

[7] Counsel, on behalf of Mr. Ramsay-Morris, argues his s. 10(a) and 10(b) rights were breached during the execution of the search warrants. Counsel submits the s. 10(b) breach led to her client being detained for hours without having been read his rights to counsel (“RTC”) or a call to counsel having been facilitated. Counsel submits these egregious breaches of his rights should lead to an exclusion of the seized evidence pursuant to s. 24(2) of the Charter.

[8] Counsel further argues, whether or not I find a breach, knowledge and control, as it relates to the loaded firearm, have not been proven beyond a reasonable doubt.

[9] The Crown argues Mr. Ramsay-Morris was provided RTC within a reasonable time and no breach of his rights occurred. In the alternative, the Crown submits any breach found should not lead to the exclusion of the evidence seized by police.

[10] The Crown further submits given what was found in the bedroom with the firearm, be it multiple documents and identification belonging to Mr. Ramsay-Morris, the sole tenant named on the lease, there can be no doubt he had both knowledge and control of that firearm.

IV. Analysis

[11] The trial and Charter application proceeded by way of a blended voir dire. On the trial proper, I heard from eight Crown witnesses. Mr. Ramsay-Morris then testified in relation to the Charter application.

[12] As was confirmed by numerous police officers who testified, Mr. Ramsay-Morris was the target of their investigation. The target addresses and vehicles were:

(1) 100 White Oaks Court, unit 1603, in Whitby; (2) 100 Taunton Road, unit 44, in Oshawa; (3) A grey Cadillac ALU; and (4) A silver Honda.

[13] After some initial surveillance, on September 27, 2022, the Guns & Gangs Unit (“G&G”), with the assistance of the Emergency Task Force (“ETF”), executed the first of their two search warrants at 100 Taunton, unit 44, in the City of Oshawa.

[14] At approximately 11:47 p.m., ETF entered the unit via the front door, as well as through the fenced backyard.

[15] ETF advised G&G that three females and two males had been located in the living room, with another four males in the backyard – Mr. Ramsay-Morris was one of the four found in the backyard.

[16] By 11:59 p.m. ETF had secured the home and its occupants. The investigation was then turned back over to the G&G officers.

A. Section 10(a)

[17] As per Officer MacDonald, one of the first G&G officers to enter the backyard, the four men were quickly detained and put on their stomachs by ETF. Officer MacDonald then took over custody of Mr. Ramsay-Morris who was lying on his stomach near the rear sliding glass door of the unit.

[18] Officer MacDonald handcuffed Mr. Ramsay-Morris to the rear, stood him up and walked him over to some patio furniture on the opposite side of the backyard. Mr. Ramsay-Morris was then laid across the furniture and his legs were straddled by Officer MacDonald who proceeded to conduct a pat down search. I note, this portion of his testimony accords with what was captured by the body worn camera of the K9 unit officer who also attended the rear of the address.

[19] Officer MacDonald testified he then advised Mr. Ramsay-Morris he was under arrest for the possession of a firearm. As per the officer, Mr. Ramsay-Morris being the named party in the Information to Obtain gave him reasonable and probable grounds to believe he was in possession of a firearm and place him under arrest.

[20] When being cross-examined, Officer MacDonald could not confirm the exact time he advised Mr. Ramsay-Morris of the reason for his arrest but was confident it was very shortly after he arrested him. The officer did not agree that he failed to advise Mr. Ramsay-Morris that he was under arrest for the possession of a firearm.

[21] Officer MacDonald confirmed he did not provide RTC to Mr. Ramsay-Morris at the time of his arrest as it was their team’s practice that RTC be provided by the Central Note Taker (“CNT”) who, on that day, was Officer Donnelly.

[22] Officer MacDonald acknowledged the importance of RTC and agreed nothing was preventing him from providing RTC to Mr. Ramsay-Morris once the situation was under control. However, he felt he would have been criticized if he did not provide RTC verbatim and note the exact responses given. Since the investigation, Officer MacDonald testified he now always carries a RTC card in his wallet to avoid such a situation in future.

[23] Mr. Ramsay-Morris disagreed with the chronology of events as described by Officer MacDonald. Mr. Ramsay-Morris testified he was not told of the reason for his arrest during or right after the pat down search. After being searched, he was made to sit on the ground and was told to be quiet. After about 5-10 minutes, he asked a uniformed officer if he could sit on the patio furniture, which he was allowed to do.

[24] Mr. Ramsay-Morris testified he was only advised of the reason for his arrest by Officer MacDonald shortly before being moved from the backyard to the back of a police cruiser.

[25] Mr. Ramsay-Morris readily acknowledged he was uncertain as to how much time had elapsed prior to his being advised as to the reason for his arrest but estimated this would have happened “maybe” thirty minutes after his initial interaction with Officer MacDonald.

[26] Section 10(a) of the Charter imposes an informational obligation on officers to advise a detainee of the reason for their detention. The purpose is to ensure detainees generally understand the jeopardy they face so they can make an informed choice about submitting to arrest or detention and exercising their rights to counsel. Essentially, it guarantees a person who has been detained the right to be promptly informed of the reasons for their detention. There is no formulaic wording required (see R. v. Roberts, 2018 ONCA 411 at para. 78, R. v. Evans, [1991] 1 SCR 869 at para. 35).

[27] It is not disputed Mr. Ramsay-Morris was advised of the reason of his arrest by Officer MacDonald. What is in dispute is whether Mr. Ramsay-Morris was told the reason for his arrest immediately after being arrested by this officer.

[28] I find Officer MacDonald testified in a straightforward and credible manner. He was confident as to what he recalled and what he did not. He readily accepted his shortcomings and acknowledged where he could have done better. He was not inconsistent, nor did he equivocate as to when he advised Mr. Ramsay-Morris of the reason for his arrest. Portions of his testimony were also corroborated by the body camera footage.

[29] Mr. Ramsay-Morris was uncertain as to exactly how much time had elapsed prior to being advised of the reason for his arrest. He further accepted that it was indeed Officer MacDonald who told him he was under arrest for the possession of a firearm.

[30] Having accepted Officer MacDonald’s evidence on this point, I do not find Mr. Ramsay-Morris has met his onus to establish that his s. 10(a) rights were breached.

B. Section 10(b)

[31] Officer MacDonald was questioned regarding G&G’s practice of the CNT being the designated, and it would appear only, RTC officer. Officer MacDonald advised it was the way they had operated for the five years he had been on the team. He confirmed this was in reason of the CNT having in their possession the search warrant package, which would include the exact wording for RTC. This would also allow the CNT to take notes, write down what was said and obtain verbatim responses from the detained or arrested parties. On that day, it was Officer Donnelly who had been anointed as the CNT.

[32] It was not disputed by the G&G officers who testified that the practice within their team was to have the CNT provide RTC to those detained or arrested during the execution of a search warrant. It was known by all, that the CNT was the officer responsible to ensure RTC were provided, and the responses accurately recorded.

[33] Officer MacDonald recalled turning Mr. Ramsay-Morris over to Officer Donnelly while still in the backyard but could not recall the exact time this occurred. He could also not recall what Officer Donnelly said to Mr. Ramsay-Morris or whether Officer Donnelly interacted with anyone else in the backyard as his focus was on Mr. Ramsay-Morris. Officer MacDonald could not recall or confirm whether Officer Donnelly provided RTC to any of the detainees who were in the backyard.

[34] Officer Donnelly also testified as to his involvement in this investigation. He advised that prior to the execution of the search warrant he had volunteered to be the CNT. As such, he knew it was his responsibility to take notes about the search warrant entry, found-ins, items located and by which officer, and to include if a transfer of an accused between officers occurred. He was also aware it would be his job to read RTC to all detained or arrested parties which was why the wording for RTC was taped to the back of his steno pad.

[35] Officer Donnelly confirmed ETF turned the scene back over to G&G at 11:59 p.m. It was then he became aware of the nine found-ins: three females and two males in the living room, and four males in the backyard.

[36] Around the same time, shortly after midnight, several Durham police officers arrived at 100 Taunton in response to a call for assistance by G&G. Officer Hristov and his partner, Officer Dingwall, both of the Durham police, were detailed to attend the backyard. When they arrived, they observed four men in handcuffs.

[37] Officer Donnelly testified he was aware Mr. Ramsay-Morris was the target of their investigation and was mindful of providing him RTC. He agreed in cross-examination there were a lot of people to talk to, and he wanted to make sure he was taking complete and accurate notes, including as they related to any Charter rights.

[38] As to his notes, Officer Donnelly was aware that once back at the station, a debrief would occur, during which he would ensure his notes were correct. After which he would transcribe them into the Search Warrant Executed Package (“SWEP”). It would be from these central notes, that the rest of the team would write their notes.

[39] Officer Donnelly stated he provided RTC to all detained parties located at the Taunton address at the following times: 12:00 a.m., 12:05 a.m., 12:09 a.m., 12:11 a.m., 12:13 a.m., 12:14 a.m., 12:17 a.m., 12:20 a.m., and 12:25 a.m.

[40] Officer Donnelly testified he interacted with Mr. Ramsay-Morris and read him his RTC at 12:20 a.m. – some 33 minutes after ETF entered and detained all parties present at the address.

[41] Section 10(b) of the Charter obligates the police to provide a detainee with rights to counsel "without delay".

[42] As per the Court of Appeal in R. v. Rover, 2018 ONCA 745, at para. 45:

The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.

[43] In R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 41 (“Suberu”), the Supreme Court confirmed:

[…] If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises.

[44] In this same decision, the Supreme Court made clear that "without delay” means “immediately” (see Suberu, supra, at para. 42).

[45] However, “immediately” does not mean “instantaneously”. Officers are not expected to handcuff a detainee with one hand and, with the other, read RTC from their memo books (see R. v. Fisk, 2020 ONSC 707, at para. 51).

[46] From 11:47 p.m. to 11:59 p.m., ETF was securing the home and the numerous found-ins. The warrant itself was in relation to a firearm. Time spent ensuring that all parties on scene, including the attending officers, were safe would inevitably lead to some delay in providing and implementing RTC. I find this delay to be reasonable in the circumstances. Therefore, what I must determine is what did or did not happen from 11:59 p.m. onward.

[47] At 12:20 a.m., some 21 minutes after the scene had been turned over to G&G, Officer Donnelly testified he found Mr. Ramsay-Morris in the backyard. He believed Mr. Ramsay-Morris was seated but could not recall what Mr. Ramsay-Morris was seated on. He read Mr. Ramsay-Morris his RTC, to which the latter responded he understood and that he did not wish to speak to a lawyer.

[48] On the other hand, Mr. Ramsay-Morris testified he was never provided RTC in the backyard at Taunton. He was adamant this did not occur until much later in the evening, after he had been moved and while he was seated in the rear of a police cruiser at a nearby plaza.

[49] When Officer Donnelly was asked when RTC should be provided to a detained or arrested person, he responded “as soon as practicable”. He was also questioned about his interaction with the various detainees. Officer Donnelly denied holding “Q&A” with each found-in, but agreed he asked each of them some questions, including where they lived. Officer Donnelly agreed in cross-examination the answers provided may not only be relevant to his investigation but possibly incriminating.

[50] For example, for the third detainee, Michael or Michel Brown (Officer Donnelly was uncertain of the detainee’s first name despite having written it down in his steno pad), the officer’s notes included the male’s physical description and clothing after which Officer Donnelly noted where he was from, when he arrived, when he was leaving and where he was staying.

[51] Initially, in cross-examination, Officer Donnelly stated these questions would have been asked only after he had provided RTC. However, he later conceded he did not know whether these questions had been asked before or after RTC had been given.

[52] When questioned about not writing down what he asked each detainee, he responded that it was because he knew what the required fields to be filled were on the SWEP template which he would have to populate when back at the station. However, he then failed to Caution any of the detainees, despite the Caution being one of the required fields needing to be populated in the SWEP template.

[53] When asked why he failed to provide the Caution, his response was “I didn’t read it, I don’t have any reason for you.” And yet, knowing no one had been Cautioned, he did not hesitate to question each of the detainees, possibly prior to providing them RTC and definitely without them having spoken to lawyer.

[54] The Supreme Court of Canada in R. v. Manninen, [1987] 1 S.C.R. 1233 (“Manninen”), confirmed police have a duty to hold off attempting to obtain information from an accused before they have an opportunity to speak with counsel. In that case, the questioning commenced was aimed at eliciting responses that would incriminate the accused with respect to the matter being investigated.

[55] I find Officer Donnelly gave no thought as to whether he should be asking these questions, and failed to turn his mind to whether his questions could lead to self-incrimination. This is not a situation in which Officer Donnelly was asking these questions to ensure the health and safety of the detainees or other officers. Such questions would not be prohibited by the language in Manninen (see R. v. Dupe, 2010 ONSC 6594, [2010] O.J. No. 5757, at para. 24).

[56] In cross-examination, Officer Donnelly was questioned at length about his steno pad notes and the SWEP that he prepared.

[57] Firstly, his steno pad notes were devoid of any mention of RTC – when they were read, what he said or the responses he received. When it was suggested, this was in reason of him not having given RTC, he disagreed. He testified the time he noted in his steno pad for each detainee confirmed not only the time of his interaction with that person but indicated the time at which he read RTC to that detainee. I do not accept this explanation.

[58] As per his evidence, the notes in steno pad pertaining to his live interaction with the detainees were written contemporaneously and chronologically. Each of the answers provided by the detainees to his questions were written after the time stamp noting his initial interaction with that detainee. If Officer Donnelly had provided RTC at the interaction time noted in his steno pad, he would know that the answers to his questions would have been provided after he had read the detainee their RTC. However, he admitted more than once that he could not be certain whether he questioned the detainees before or after RTC had been provided – which clearly undermines his assertion that RTC had been provided at the interaction time noted in his steno pad. I find this inconsistency in his evidence to be significant.

[59] Secondly, despite agreeing the waiver of one’s rights was very important, Officer Donnelly failed to record a single response given by any of the detainees to RTC in his steno pad – including that of Mr. Ramsay-Morris.

[60] Officer Donnelly testified it was not difficult to recall what each detainee had said as each of the nine had stated “yes” they understood their RTC, and “no” they did not want to speak to a lawyer – which was what he would later transcribe into the SWEP.

[61] When questioned about this omission from his steno pad notes, Officer Donnelly testified he did not record the answers to RTC given the number of found-ins and not wanting them to have to wait any longer than necessary for their RTC. Essentially, he failed to record their answers to save time and provide RTC in a timely fashion. Again, I do not accept this explanation.

[62] Officer Donnelly was aware one of his main responsibilities as the CNT was to provide RTC, but also to note what, if anything, was said by those detained or arrested. This obligation was also confirmed by other G&G officers who testified, including Officer MacDonald who stated he would expect the CNT to note the verbatim responses to these questions.

[63] Had Officer Donnelly truly felt pressed for time, as he claimed, one would expect he would have, for example, forgone asking detainees when they arrived in Canada or planned to leave, or asked one of the many officers on scene to assist in facilitating the reading of RTC.

[64] As was noted, numerous Durham officers attended and were standing by to assist G&G as required. Officer Shufman estimated some twenty police cars attended, perhaps even an entire platoon. Some were sent on their way, while others were requested to assist G&G given the number of found-ins – including Officers Hristov and Dingwall who were sent to the backyard shortly after midnight.

[65] Nothing was done by the numerous officers present to mitigate or try to mitigate delay in providing RTC, or ensure it was done properly. As per Officer Shufman, the officer leading the G&G unit that day, had the CNT required assistance, he would have expected they would ask for help. Officer Shufman also conceded he did not request that the Durham officers assist in the providing of RTC to the detainees.

[66] I do not accept Officer Donnelly was concerned about providing RTC in a timely fashion, but rather was sloppy and careless in the taking of his notes and failed to duly record any of the answers provided.

[67] When further questioned as to how he could be so certain as to the “yes” and “no” stated by each party when providing RTC, given his lack of contemporaneous notes on the point, he responded “that night, it’s still pretty fresh”, without further elaborating.

[68] I found his response surprising given what appeared to be a rather routine search warrant execution, devoid of anything particularly memorable. I find it hard to believe that an officer with fifteen years’ experience at the time of the search warrant, including two years as part of G&G, would find this event, particularly his brief interaction with nine people, would stand out in his mind.

[69] I also find it remarkably coincidental that nine individuals detained for the possession of a firearm after a dynamic entry in the middle of the night to execute a search warrant would provide the exact same verbatim responses when read their RTC.

[70] Finally, Officer Donnelly was confronted with the fact that he noted the responses to RTC in the SWEP for only eight of the nine detainees, despite his claim that all the answers were “yes” and “no”. The two fillable portions of the SWEP were left blank as to any responses that may have been provided by Mr. Ramsay-Morris.

[71] When asked about this further omission, Officer Donnelly indicated he must have gotten distracted by someone when filling out the template at the station and accidentally turned to the next page before completing this portion relating to Mr. Ramsay-Morris, the sole target of their investigation.

[72] I find this to be another example of Officer Donnelly’s careless notetaking and failure to complete a task he had been assigned as the CNT.

[73] What I find particularly concerning about Officer Donnelly’s lack of notes regarding salient parts of the investigation is that he was well aware that his role as the CNT, who was the only contemporaneous G&G notetaker at the time, was to record what was being done and said, including providing RTC. All officers on that team knew it was Officer Donnelly who was responsible for RTC, including the officer himself.

[74] Overall, I did not find Officer Donnelly to be a reliable or credible witness. His notes included several errors and omissions, which he attempted to explain away, which in turn, resulted in internal inconsistencies and contradictions.

[75] Despite other officers testifying to having seen Officer Donnelly interact with Mr. Ramsay-Morris, not one officer present in that relatively small backyard, could confirm what, if anything, was said, or not, to Mr. Ramsay-Morris – including Officer Dingwall who, as will be explored, had been instructed to refrain from noting his observations.

[76] Given my numerous concerns regarding Officer Donnelly’s reliability, and the lack of independent confirmatory or corroborative evidence as it pertains to his providing Mr. Ramsay-Morris RTC, I accept Mr. Ramsay-Morris’ evidence that he was not read RTC while in the backyard of 100 Taunton. As a result, I am satisfied, on a balance of probabilities, that Mr. Ramsay-Morris’ s. 10(b) rights were breached.

[77] As per the police witnesses, the search at Taunton ended at 12:51 a.m. At that time, Officer Shufman made the decision to have Mr. Ramsay-Morris and Mr. Baker held in a scout car pending the completion of the second search warrant. Given the balance of the found-ins had no association to the address at 100 White Oaks, they were released.

[78] Officer Shufman agreed he did not know how long the second search warrant would take to finish but that he was not ignoring the two detainees’ RTC by placing them in a cruiser without facilitating a call to counsel. He was of the opinion it would take longer for the detainees to be transported, booked, and then possibly released, as opposed to completing their search to determine whether either individual would be criminally charged.

[79] Officer Shufman also agreed he personally could have read Mr. Ramsay-Morris his RTC but was dealing with other issues and had other functions that day.

[80] Officer Dingwall testified he was advised Mr. Ramsay-Morris and Mr. Baker would continue to be detained and moved to another location. He recalled receiving that instruction at 12:55 a.m. but confirmed he was never advised by G&G as to why the two men were being moved.

[81] Officer Dingwall did not provide Mr. Ramsay-Morris RTC before moving him to the nearby plaza shortly after 12:55 a.m. as he was not informed that Mr. Ramsay-Morris’ jeopardy had changed. He believed RTC had already been provided. Officer Dingwall stated that given both men were detained, he would have expected they had been provided RTC. However, this was not something he confirmed with any of the G&G officers present, including Officer Donnelly. He stated they arrived at the rear of the plaza at approximately 1:00 a.m.

[82] Officer Hristov confirmed that he and Officer Dingwall were detailed by G&G to continue to hold Mr. Ramsay-Morris and Mr. Baker given another search warrant was going to be executed at 100 White Oaks. It was Officer Hristov’s understanding that he was to hold both individuals as the ongoing police investigation and subsequent search warrant may provide grounds to charge one or both men.

[83] As per Officer Hristov, at the direction of G&G, the two men were placed in the back of the same fully marked cruiser and driven to a nearby plaza. Officer Hristov could not confirm who in fact advised him to move the detainees, but stated he was told to move them from the address but not go too far. They were to wait at the location until they received further instruction from G&G.

[84] Officer Hristov testified he was detailed to remain with the detainees, but never instructed to provide either of them with RTC or to facilitate a call. It was when being cross-examined as to why RTC were being delayed, that Officer Hristov mentioned, for the first time, that given it was an active investigation with a search warrant being conducted and a second on the cusp of being executed, it could not be done – though this did not seem to be a reason that was provided to him by G&G. That was the extent of the information he could provide as to why RTC were not facilitated for Mr. Ramsay-Morris or Mr. Baker while they were in his custody.

[85] As per Mr. Ramsay-Morris, he was never advised as to why he was being moved from 100 Taunton, where he would be taken, how long he would be held or why the implementational aspect of his RTC was being delayed. He described the location to which he and Mr. Baker were taken as a dark laneway at the rear of a plaza. He testified it made him feel uncomfortable and unsafe.

[86] From 1:00 a.m. to 1:40 a.m., Mr. Ramsay-Morris and Mr. Baker remained handcuffed in the rear of the scout car at the back of the nearby plaza.

[87] In certain circumstances, facilitating the right to speak to counsel can be delayed while police execute a search warrant (see R. v. Strachan, [1988] 2 S.C.R. 980, R. v. Learning, 2010 ONSC 3816, [2010] O.J. No. 3092, at paras. 71-75).

[88] However, concerns of a general nature cannot justify such a delay (see R. v. Rover, supra, at paras. 29-34, R. v. Wu, 2017 ONSC 1003, at para. 78).

[89] As stated by the Court of Appeal in R. v. Rover, supra, at para. 27:

The police may delay access only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel. Even when those circumstances exist, the police must also take reasonable steps to minimize the delay in granting access to counsel. (emphasis added)

[90] As per Officer Shufman, the lead for G&G at the scene and the one providing direction and instruction to the Durham officers, the delay in facilitating a call to counsel was to avoid a potentially unnecessary booking process. He made no mention in his evidence as to the risk of the destruction of evidence, public safety or police safety.

[91] Officer Hristov, on the other hand, was clearly following and executing the instructions received from G&G. He was never given a reason as to why RTC needed to be delayed or could not be facilitated. It was only when pressed in cross-examination that he raised it being an active investigation with another search warrant about to be executed as reasons for which RTC could not be implemented. He did not elaborate any further.

[92] Finally, I note, the unit at 100 White Oaks was secured shortly after the police entry at 1:20 a.m. However, despite the second location now being secured, Mr. Ramsay-Morris spent another 20 minutes handcuffed in the rear of a cruiser without being provided RTC or advised of when a call could be made.

[93] Though neither of the Durham officers had work-issued cell phones at the time of this investigation, this does not relieve the police from their obligations under the Charter. I would not expect either Durham officer to provide Mr. Ramsay-Morris their personal devices, but this was a factor which should have been considered when Officer Shufman directed that Mr. Ramsay-Morris be relocated and held at the rear of a plaza in the middle of the night as opposed to being transported to a nearby police station.

[94] Given these facts, I find neither Officer Shufman nor Hristov turned their minds to the specific circumstances of the case and provide reasonable grounds to justify a delay in implementing Mr. Ramsay-Morris’ RTC – expediency and convenience are not valid reasons to withhold a call to counsel (see R. v. Keshavarz, 2022 ONSC 1839, [2022] O.J. No. 1839, at paras. 71-83).

[95] While the two men were being held at the rear of the plaza, police officers located the following items in the primary bedroom of unit 603 at 100 White Oaks:

(1) An empty black holster on the nightstand; (2) A loaded black and silver handgun inside a laundry hamper in the closet with its serial number defaced; (3) Several documents and identification in the name of Mr. Ramsay-Morris; and (4) A Cadillac key in the top drawer of the nightstand.

[96] Located in the entryway closet were two bulletproof vest carriers.

[97] At 1:40 a.m., Officer Hristov was contacted by G&G and advised that Mr. Ramsay-Morris was arrestable for possession of a firearm. He relayed this information to Officer Dingwall who thereafter arrested Mr. Ramsay-Morris and provided him RTC and a Caution.

[98] As per Officer Dingwall, Mr. Ramsay-Morris was arrested at 1:44 a.m., read his RTC at 1:50 a.m., and Cautioned at 1:52 a.m. He confirmed Mr. Ramsay-Morris asked to speak to a lawyer from Toronto but that he could not recall her name. Officer Dingwall advised Mr. Ramsay-Morris that efforts would be made to track down that lawyer.

[99] When asked what happened to Mr. Baker, Officer Dingwall stated he believed, at that point, he was released unconditionally, but could not recall exactly what happened.

[100] As became clear during the trial, there were significant issues with the reliability of Officer Dingwall’s evidence.

[101] Returning to earlier in the evening, when Mr. Ramsay-Morris was still in the backyard of 100 Taunton, Officer Dingwall stated he recalled a plainclothes officer with a TPS vest coming to the backyard from inside the house. He recalled that officer speaking to each of the four detainees in the backyard, but he did not know what was said.

[102] Officer Dingwall surmised this was when RTC may have been provided to Mr. Ramsay-Morris. However, this observation did not make it into his notes. The reason provided for this omission was that as a new officer he was still receiving guidance from other officers. He stated he had been told to distance himself from the G&G investigation to not have notes that may conflict with the notes of the other officers.

[103] When questioned about this practice in cross-examination, Officer Dingwall stated he was following the lead of more senior officers. When trying to clarify what he characterized as a poorly worded response, he stated he had understood he should not take notes or comment on someone else’s conversation, as it may conflict with another officer’s notes or recollection. In the end, he agreed he had been told not to take notes as they may conflict with G&G’s investigation.

[104] I find the direction given to Officer Dingwall extremely concerning given the known duties and obligations of all officers, which include the taking of notes related of relevant observations.

[105] As to his observations that evening, many of them did not make it into his notes but came back to mind when he first attended court to testify, after which he prepared a Will Say. At the time of the investigation, Officer Dingwall never thought he would be called to testify or that his notes, or lack thereof, would be questioned. He conceded he would now include additional details into his notes that he failed to record during this investigation.

[106] During his testimony he noted, that given he was a new officer, and that it was his very first search warrant, including his first investigation with other police services, it was easier for him to recall what happened that day – particularly as certain aspects of what happened were “oddly comical”. However, his independent recollection on a rather significant point was thereafter proven to be incorrect.

[107] Officer Dingwall recalled Mr. Ramsay-Morris and Mr. Baker being placed in separate police vehicles, and Mr. Baker being in the custody of another Durham officer – Dave Leslie. He agreed in cross-examination he did not have notes about the detainees being held in separate cruisers but was adamant other officers’ notes would confirm that this was in fact the case. He then disagreed with the suggestion that Mr. Ramsay-Morris and Mr. Baker were both held in the back of his cruiser.

[108] At the end of this trial, it was confirmed by way of agreed fact, that Durham officer Dave Leslie was 1) not involved in this investigation in any way, and 2) was not working the night of September 27-28, 2022.

[109] Both Officer Hristov and Mr. Ramsay-Morris confirmed that both men were being held in the back of the same cruiser, and I accept their evidence on this point.

[110] Given Officer Dingwall’s lack of contemporaneous notes, and his reliability on a salient point having been successfully challenged, I find I must approach his evidence with caution.

[111] At 1:54 a.m., Mr. Ramsay-Morris was driven to 17 Division in Oshawa to facilitate a call to counsel. They arrived at the station at 2:01 a.m. The sergeant’s work-issued cell phone was brought to the police vehicle which was parked on the east side of the police station. Mr. Ramsay-Morris was then put into contact with his requested lawyer using the phone that was provided.

[112] When asked why Mr. Ramsay-Morris was not taken into 17 Division to make use of the private rooms available to make calls to counsel, Officer Hristov stated it was to ensure Mr. Ramsay-Morris got his call as soon as possible given it would have taken additional time to book and process him. As per Officer Hristov, the fastest booking he observed had taken approximately 5-8 minutes, while, on average, a booking would take 12-14 minutes.

[113] A fundamental consideration as to the implementational component of RTC is whether a detainee was given the requisite privacy to exercise this Charter-protected right. As noted by our Court of Appeal, “[c]onsultation in private is a vital component of the s. 10(b) right” (see R. v. Pileggi, 2021 ONSC 32, [2021] O.J. No. 32, at para. 77).

[114] In R. v. Playford, [1987] O.J. No. 1107, the Court of Appeal stated at para. 31:

[i]t would defy common sense to expect an accused person to instruct counsel properly when his instructions can be overheard by other persons and in particular by police officers. Such lack of privacy might even seriously prejudice his ability to retain counsel. Retention of counsel usually requires some explanation by the accused of the circumstances which led to his arrest.

[115] Even in cases where no actual invasion of privacy occurred, a breach of s. 10(b) might still be found if the accused believes he was not afforded the privacy necessary to retain and instruct counsel and this belief was reasonable in the circumstances (see R. v. Cairns, [2004] O.J. No. 210, at para. 10). And though detainees must be reasonably diligent in exercising this right, they are under no specific duty to complain about an alleged lack of privacy (see R. v. Procyk, 2018 ONSC 6416, [2018] OJ No 6416, at para. 28).

[116] Finally, I note that a safe and suitable environment is also an important factor to consider when exercising this right (see R. v. Keshavarz, supra, at para. 67).

[117] As to the privacy afforded to Mr. Ramsay-Morris, Officer Hristov testified to closing the cruiser door and stepping 20-30 feet away from the police vehicle. He stated he was unable to hear anything being said on the call. He confirmed Mr. Ramsay-Morris was alone in the vehicle while the call was underway. When asked how he knew the call was done, Officer Hristov indicated he may have approached the vehicle once or twice to see if Mr. Ramsay-Morris was still on the phone, and that on one occasion, when he approached, Mr. Ramsay-Morris indicated he was done.

[118] Officer Hristov recalled asking Mr. Ramsay-Morris if he was satisfied with his call, to which Mr. Ramsay-Morris responded he was until he reached 43 Division. He then asked Mr. Ramsay-Morris whether he wished to speak to his lawyer again at the station to which Mr. Ramsay-Morris said yes.

[119] As per Officer Dingwall, the windows were rolled up and Mr. Ramsay-Morris was instructed to knock on the window when he was done his call. Officer Dingwall stated he moved far enough away from the cruiser that he could not hear any conversation but would be able to hear Mr. Ramsay-Morris knock on the window. He testified to being a couple of meters away from the cruiser but able to monitor the interior of the vehicle through the windshield. Officer Dingwall testified Mr. Ramsay-Morris did in fact knock on the window when he had completed his call.

[120] In cross-examination, Officer Dingwall confirmed he told Mr. Ramsay-Morris it would be a private call, however that observation was not included in his notes or his Will Say. Given the reliability concerns as they relate to Officer Dingwall, I am not prepared to accept this was in fact said to Mr. Ramsay-Morris.

[121] It is not disputed that from 2:04 a.m. to 2:19 a.m., Mr. Ramsay-Morris spoke to counsel while in the rear of the police cruiser.

[122] Mr. Ramsay-Morris also testified about the call from the rear of the cruiser. He agreed that both officers stepped away from the cruiser when he was speaking to his lawyer, but stated he did not feel he was afforded privacy during his call as he could still see both officers and could hear them talking and laughing. I find his latter assertion about being able to hear them to be supported by the testimony of the officer who noted hearing Mr. Ramsay-Morris knock on the window.

[123] Finally, Mr. Ramsay-Morris, now cuffed to the front, was holding the phone up in front of him, and speaking to his lawyer while on speakerphone.

[124] Given the proximity of both officers to the cruiser, the monitoring of the interior of the vehicle through the windows, their ability to hear Mr. Ramsay-Morris knocking and his being able to hear the officers talking and laughing while he spoke to his lawyer on speakerphone, I accept that he believed his call with counsel was not private and that his belief was reasonable in the circumstances. I do not find Mr. Ramsay-Morris taking the opportunity finally afforded to him to speak to counsel negates or undermines his belief that the call was not private. Given what had already transpired that evening, it is understandable Mr. Ramsay-Morris would seize this opportunity despite the less than ideal circumstances in which it was offered.

[125] Therefore, I find the lack of privacy to have breached the implementational component of his section 10(b) rights.

[126] Mr. Ramsay-Morris further testified that his call with counsel had been disconnected before he had finished speaking with his lawyer. He said he told Officer Dingwall he had been disconnected and asked the number be dialed again. He testified he was then advised he would have another opportunity to speak to counsel at the station in Toronto. Officer Dingwall did not recall Mr. Ramsay-Morris telling him the call had been disconnected.

[127] On this point, I accept Mr. Ramsay-Morris’ evidence that the call had been disconnected and that Officer Dingwall had been told of the disconnected call.

[128] At 2:21 a.m., the Durham officers began driving towards 43 Division in Toronto. They arrived at 2:43 a.m. and Mr. Ramsay-Morris was paraded at 3:13 a.m. The booking process was completed by 3:23 a.m.

[129] From 3:21 a.m. to 3:46 a.m., Officer Shufman testified he was logging into the computer at 43 Division which can take quite a bit of time given they are encrypted and not a computer he had used before. He also spent some of that time speaking to Mr. Ramsay-Morris, which included a conversation about what was to be done about the dog in his apartment.

[130] At 3:46 a.m. a call to counsel was placed for Mr. Ramsay-Morris from 43 Division.

[131] I do not find this final delay, from when Mr. Ramsay-Morris was transported to 43 Division at 2:21 a.m., to when the call was placed to counsel at 3:46 a.m., constitutes a further breach of his s. 10(b) rights. Delays attributable to transport, the booking process, and other routine steps in the detention process, do not amount to “wasteful delay” and I find were reasonable in the circumstances (see R. v. Lawson, 2017 ONSC 7104, [2017] O.J. No. 7104, at paras. 71-77).

C. Section 24(2)

[132] Mr. Ramsay-Morris has established his s. 10(b) Charter-protected rights were infringed. What I must now determine is whether the admission of the loaded firearm would bring the administration of justice into disrepute (see R. v. Grant, 2009 SCC 32 (“Grant”)).

1. The Seriousness of the Charter-Infringing State Conduct

[133] The first inquiry in the balancing test outlined by Grant examines the seriousness of the Charter-infringing state conduct. Good faith breaches may have “little adverse effect on the repute of the court process” (see Grant, supra, at paras. 72-75).

[134] I do not find this was a breach which occurred in good faith or despite the best efforts of the police. Officer Donnelly was an experienced officer who failed to complete rudimentary and expected tasks, such as reading Mr. Ramsay-Morris his RTC.

[135] This mistake was compounded by Officer Donnelly inexplicably failing to Caution any of the detainees, including Mr. Ramsay-Morris, prior to asking them potentially incriminating questions. Though no incriminating evidence was elicited from Mr. Ramsay-Morris, this seems to have occurred more by chance than design given Officer Donnelly asked other detainees where they lived.

[136] These failings must then be considered in the context of Officer Donnelly’s careless notetaking which was riddled with errors and omissions. Despite his years of experience and his duty to do so, Officer Donnelly failed to prepare accurate, detailed, and comprehensive notes (see Wood v. Schaeffer, 2013 SCC 71, [2013] SCJ No. 71 at paras. 64-67).

[137] It was also surprising that an officer of his vintage was unable to clearly articulate that RTC are to be provided “immediately” upon arrest or detention as opposed to “as soon as practicable”. In fact, despite nearly fifty years of cumulative policing experience, and being fifteen years post-Suberu, not one officer who testified, was able to articulate that RTC are to be provided “immediately”.

[138] Secondly, though not a systemic problem such as the one noted in R. v. Thompson, 2020 ONCA 264, it is still a situation in which RTC would have been unnecessarily delayed in reason of officers following a G&G notetaking practice without consideration of its impact on the rights of those they had detained, or its feasibility given the circumstances in which they found themselves.

[139] This was not a dynamic situation, or one in which police lacked the resources to effectively provide RTC immediately or had other pressing matters to deal with – they simply accepted the status quo. Not one of the officers present was able to confirm when or if Officer Donnelly in fact provided Mr. Ramsay-Morris RTC. As a result, Mr. Ramsay-Morris was not read RTC until 1:50 a.m. – nearly two hours after he had been turned over by ETF to G&G at 100 Taunton.

[140] This breach must also be considered in conjunction with the police’s failure to provide Mr. Ramsay-Morris the requisite privacy when finally getting to speak to counsel – a call which was disconnected.

[141] Finally, police failing to facilitate a call to counsel or attend a location where this could be done to avoid a potentially unnecessary booking process is highly problematic. Options were available to the officers, such as heading to a police station, the nearest of which was a seven-minute drive away, but they chose instead to take Mr. Ramsay-Morris offsite to the rear of a plaza where he remained for nearly an hour.

[142] Overall, I find the first factor favours exclusion of the evidence.

2. The Impact of the Charter-Infringing Conduct on the Rights of the Accused

[143] The second inquiry under the Grant analysis focuses on the impact of the Charter violation on the Charter-protected interests of Mr. Ramsay-Morris.

[144] As noted in Rover, supra, the right to counsel is a lifeline for detained persons. It is important in providing support and advice on several issues, such as the right against self-incrimination, how long a detention may last, and what can be done to regain one’s liberty (see R. v. Noel, 2019 ONCA 860, [2019], O.J. No. 5612, at paras. 25-26).

[145] These factors were at play in this case, including what advice, if any, could have been provided to Mr. Ramsay-Morris as it related to the execution of the search warrant at his apartment at 100 White Oaks (see R. v. Whittaker, 2024 ONCA 182, at paras. 50-51).

[146] Though the lack of causal connection between the breach and the finding of the firearm somewhat attenuates the seriousness of the breach, I find the s. 10(b) violation still had a significant negative impact on Mr. Ramsay-Morris’ Charter-protected rights (see Rover, at paras. 43-47).

[147] Mr. Ramsay-Morris was detained after a dynamic entry was executed by ETF in the middle of the night. He was secured, handcuffed, and searched. He then waited nearly two hours before being read his RTC, and for the last 45 minutes of this two-hour window, he was handcuffed and seated in the rear of a cruiser which was parked in a dark laneway behind a plaza. He was never told why or where he was being moved to, or when he would be given the chance to speak to a lawyer. I accept this would have added to his discomfort and unease.

[148] Mr. Ramsay-Morris had been in police custody for over two hours when a call to counsel was finally facilitated at 2:04 a.m. – a call which occurred on speakerphone with officers chatting and laughing a short distance away, which was then disconnected before its natural conclusion.

[149] Mr. Ramsay-Morris was then made to wait until 3:46 a.m. before being placed back in touch with his lawyer. There can be no doubt this would have exacerbated his worry and anxiety.

[150] Given the significant impact of the Charter-infringing conduct on Mr. Ramsay-Morris’ rights, I find this second factor also favours exclusion.

3. Society’s Interest in the Adjudication of the Case on its Merits

[151] The third inquiry under the Grant analysis asks, “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.”

[152] Reliability of the evidence, its importance to the prosecution’s case, and the seriousness of the offence are all relevant considerations. When the evidence is both reliable and crucial to the Crown’s case, the pull towards inclusion is especially strong (see Grant, supra, at paras. 79-83, R. v. Harrison, 2009 SCC 34, at paras. 33-34).

[153] The firearm and ammunition are reliable evidence which are essential to the Crown’s case – without them, this prosecution fails. Furthermore, there is a high interest in the adjudicating of gun-related offences on their merits.

[154] As noted by the Court of Appeal, “[h]andguns are an all too prevalent menace in the Greater Toronto Area” (see R. v. Brown, 2010 ONCA 745, [2010] O.J. No. 4707, at para.14).

[155] In R. v. Thavakularatnam, 2018 ONSC 2380, [2018] O.J. No. 2038, it was noted at para. 21:

Gun crime has become a cancer in Toronto. Despite several years of case law condemning the offence, the possession of firearms remains a blight on the city and its residents. Guns are made and used to maim, threaten and kill. Their impact goes well beyond the victims of such crime: spouses, romantic partners, parents and children suffer the trauma of a loved one lost to the mindless violence wrought by the use of firearms […]

[156] This final factor clearly favours inclusion of the evidence.

4. Admission or Exclusion of the Evidence

[157] As the Supreme Court of Canada stated in R. v. Le, 2019 SCC 34, [2019] S.C.J. No. 34, at para. 142 (“Le”):

[…] The third line of inquiry becomes particularly important where one, but not both, of the first two inquiries pull towards the exclusion of the evidence. Where the first and second inquiries, taken together, make a strong case for exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility (Paterson, at para. 56). Conversely, if the first two inquiries together reveal weaker support for exclusion of the evidence, the third inquiry will most often confirm that the administration of justice would not be brought into disrepute by admitting the evidence.

[158] Further on, at para. 158 of Le, the Court stated:

While this inquiry is concerned with the societal interest in "an adjudication on the merits" (Grant, at para. 85), the focus, as we have already explained, must be upon the impact of state misconduct upon the reputation of the administration of justice. While disrepute may result from the exclusion of relevant and reliable evidence (Grant, at para. 81), so too might it result from admitting evidence that deprives the accused of a fair hearing or that amounts to "judicial condonation of unacceptable conduct by the investigatory and prosecutorial agencies" (Collins, at p. 281). An "adjudication on the merits", in a rule of law state, presupposes an adjudication grounded in legality and respect for longstanding constitutional norms.

[159] The evidence in this case is reliable, central to the Crown’s case, and there is lack of causal connection between the breach and the finding of the firearm, but I cannot ignore the seriousness of the Charter-infringing police conduct and its impact on Mr. Ramsay-Morris’ Charter-protected rights.

[160] In the circumstances of this case, I find the balancing of the three factors favours the exclusion of the evidence. As a result, I am left little choice but to acquit Mr. Ramsay-Morris of the charges before me.

Released: November 28, 2024 Signed: Justice Derek Ishak