R U L I N G

BEFORE THE HONOURABLE JUSTICE B. BROWN

on June 28 and July 10, 2024, TORONTO, ONTARIO

APPEARANCES:

C. K. Bunting Counsel for the Crown

A. Warth Counsel for Anthony Dass

K. Tink Counsel for Joshua Jeremiah

FRIDAY, JUNE 28, 2024

WHEREUPON OTHER MATTERS ARE SPOKEN TO

BROWN, J: (Orally)

Anthony Dass and Joshua Jeremiah are charged with many offences arising out of a police investigation at a residential condominium unit on January 13, 2022. Another two accused persons were also charged arising from this investigation, Eric Poku and Michael Poku, but the charges against them were withdrawn by the Crown prior to the commencement of the trial.

This has been a very lengthy trial with many Charter applications brought by each accused, together with a s. 11b Charter application by each accused, and a Crown application to reopen its case. The rulings on the 11b Charter application and Crown application to reopen its case are not the subject of these reasons.

The trial has taken the form of a blended voir dire over many dates. The trial began on July 11^th, 2023, and it continued on July 12^th and 13^th, October 31, November 1, 2, 3, 15, all in 2023, and then continued in 2024 on April 22^nd, May 1^st, 2^nd, and 9^th. To this point, the trial has run over 12 days. Unfortunately, counsel did not advise the judge on the JPTs that were held, of the vastly expanded Charter applications that each defendant eventually filed just prior to the start of the five day trial.

Over that time, a great deal of evidence was called, including various police officers who attended at the condominium unit, being officers Kyle Cole, Sarah Kenny, Brandt Gordon, Brendan Johnson, Detective Dan Mcnab, and the acting staff sergeant at the police station, Sergeant Christopher Ferko. Both defendants gave evidence in relation to the Charter issues as well.

After the Crown closed its case, the defendant, Mr. Dass, brought an application for a directed verdict in relation to various counts he faced. Subsequently, Mr. Dass has been discharged in relation to counts 3, 11, 26, 27, 28, 29, 31, 32, 33, 34, 35, 36, and 37. Count 31 was a duplicate and it was withdrawn by the Crown.

The case against the defendants relates primarily to two firearms. The first firearm was the Glock 23 semiautomatic firearm which was seized pursuant to a search incident to the arrest of Mr. Jeremiah. Following that seizure, a search warrant was obtained based upon the seizure of this firearm in the unit, and a second firearm was located and seized during the execution of that search warrant.

At this point the Court rules on the Charter applications related to sections 7, 8, 9, and 10.

Uncontradicted Evidence

Counsel filed an agreed statement of fact in relation to this case. The Court has noted that this contains information in error and uses this as a guide with the clear, uncontradicted testimony in this case.

In addition, there is a great deal of evidence in this case that is uncontradicted. A lot of evidence arises from body worn camera video clips from several officers who were on the scene of the investigation.

The investigation started on January 13, 2022 at 7:41 a.m., not p.m., with a 911 call. The civilian reported a young female believed to be around 16 years old and intoxicated, in the company of two males, in a situation that didn’t look right. The civilian was concerned for the female and requested the police attend. There was a second civilian call to 911 advising that the female had approached his girlfriend’s vehicle and advised his girlfriend that the males were being mean to her. Two males then attended and retrieved the female, stating she was in the wrong vehicle. The two males escorted the female away to the lobby of the condominium building at 19 Bathurst Street in Toronto. The information was relayed to various officers of the Toronto Police Service.

Officer Kenny was a female police officer and she testified that she received a suspicious radio call for a suspicious incident at Bathurst and Fort York near the LCBO store. The information was that a bystander or a civilian witnessed a female, possibly on drugs, who looked really young, in the company of two other men. She ran into someone’s car to try and get away from the two men. And, at the time, January 13, 2022, she was partially clothed, wearing a tank top. She appeared intoxicated with her eyes rolling into the back of her head. She indicated that she would back up the other police car attending the scene. In her mind at the time were a variety of different scenarios with the most important factor being that she was trying to get away from two males with her, that if she was on drugs, if she was intoxicated, she should not have been, given her age. She wondered if it was a kidnapping, if it was human trafficking.

Officer Kenny had experience in the area of Fort York and Bathurst with human trafficking, where someone was missing, young girls were located, executing search warrants involving females from Quebec believed to be victims of human trafficking. The preliminary information from this call was pretty concerning. PC Kenny attended 18 Bathurst and asked the concierge about the description. She believed that the three parties had gone somewhere. The concierge gave her information about a unit on the 18^th floor, unit 1807, in relation to the female and two males. She attended and obtained more information from the caller to 911, and various other officers arrived, including Officers Johnson, Gordon, Casasola, and Cole.

Sergeant Mcnab spoke to Officer Kenny before he attended and he learned that the two males and female had gone into unit 1807. He was of the opinion that this required an immediate response, that there was fear for the safety of the female, and that there were exigent circumstances. He instructed Officer Kenny to enter the unit as soon as possible without any announcement. He instructed them to do so as soon as possible, before he arrived on scene. He planned to attend at the scene.

PC Kenny was in charge of the scene until Sergeant Mcnab arrived on the scene. PC Kenny testified she spoke to Sergeant Mcnab and they agreed to make an entry in exigent circumstances as to the safety of the female, and that was the top priority. Officers went up to the unit with a master key and obtained entry. PC Kenny gave evidence as to the concerns prior to the entry related to potentially there being firearms if this was related to human trafficking, that there may be multiple people in the unit. She was one of the first few officers to enter the unit.

After Officers Gordon and his partner, Officer Johnson, arrived, they proceeded to watch some of the security footage of the three parties (two males and one female) in the building elevator. Officer Gordon did not watch all of the security footage until just prior to his evidence in July of 2023. At the time, he was focused on looking for two males and a female, he was not focused or looking for a satchel.

The security guard said he believed the unit was on the 18^th floor and the concierge advised he thought it was unit 1807.

The surveillance video footage from the elevator was put in evidence as Exhibit 8A. At that point, Officer Gordon was of the view that this was the two males and one female they were looking for as part of the radio call. One of the males was holding open the female’s pants while they were seen in the elevator on the videoclip.

After seeing the video, PC Gordon was of the view that she looked heavily intoxicated, that she was not there of her own volition, that she may have been taken advantage of, either sexual assault or human trafficking. He was concerned about seeing one man looking down her pants and the other man grabbing her before they went in the elevator. He was also concerned about what the Court heard as the narrative prior to the two calls to 911. He and the other officers felt there were exigent circumstances to enter the unit and they did so with a key that security provided.

PC Cole gave evidence as to working with his partner, PC Casasola, in attending the unit in response to the radio call. PC Cole and his partner arrived on scene at 8:03 a.m. When they arrived to open the door, the officers present were Officers Cole, Casasola, Gordon, and Johnson. Before entry they knew that two of the males were black. Officers Gordon and Johnson are black. Officer Casasola is Hispanic. The Court notes this as there was a question raised in cross-examination about the actions of the police officers towards white people as opposed to minorities.

The body worn camera of Officer Cole was played in evidence. It was apparent that there was heavy music being played inside the unit. After the door to the unit was opened by building security, the officers announced Toronto Police two times as they entered unit 1807 at 8:06 or 8:07 a.m. As it turned out, the tenant on the lease for the unit was Mark Williams. At the time of the police entry he was in a separate bedroom with the female, Dominika Jazwiec.

As the officers entered the unit, PC Gordon had a taser out and on. PC Cole did not have a weapon drawn. Heavy music caused the inside of the unit to be loud and the lighting was extremely low, with only string lights turned on. There were several males in the apartment. It was dark inside the unit and there was strip lighting like a club. There were three people in the living room. One male walked right past the officer, Kenny, and two males were at the far end of the condo. In addition to the tenant and a female in the bedroom, there were four males, who were Mr. Jeremiah, Mr. Dass, Eric Poku, Michael Poku, and the female the police were looking for, M.R.

The people inside the unit were compliant. At the time of police entry, M.R. and Eric Poku were together in the bathroom of the unit. At that time the other three males, Mr. Jeremiah, Mr. Dass, and Michael Poku were in the living space of the unit. It was a one bedroom unit with a blowup bed in the living area. After entry, Officer Gordon observed that there was a coffee table between Mr. Jeremiah and the sofa in the unit, near the balcony door. When Officer Gordon entered, he ordered Mr. Jeremiah to move closer to the balcony door. At the time, Mr. Jeremiah did not have a satchel on his person and he did not have anything in his hands. He told Mr. Jeremiah to get down and Mr. Jeremiah went down on the floor. He did not get up until Officer Gordon told him to get up.

In cross-examination, Officer Gordon admitted that Mr. Jeremiah asked “what did we do?” And he said, “wrong house”. At 8:07 a.m. the officer stated, the white girl you were with, where is she? Mr. Jeremiah said, bathroom, or motioned towards the bathroom. Up until that point the female had not been found. Mr. Jeremiah was described as being “very detained”.

Officer Gordon did not tell Sergeant Mcnab that Mr. Jeremiah had dropped any stuff. In cross-examination, Officer Gordon testified that as he entered the unit, it looked like Mr. Dass took something off his shoulder and put it on the couch. It looked like the corner of the satchel coming off his back. At the time, Mr. Dass was standing in the area of the couch or sofa, next to the kitchen, not Mr. Jeremiah. That’s a very important piece of evidence.

PC Cole made his way into the only bedroom in the unit where Mark Williams and the female that’s been mentioned earlier were found. PC Cole engaged with them. Mr. Williams was described as the owner of the unit, although other evidence disclosed that he was a tenant of the unit. Mr. Williams was only clothed from the waist up and the female was nude. PC Cole did not have concerns regarding officer safety related to those two people. Officers explained to Mr. Williams the reason why they had entered the apartment related to the potential situation of a 14 year old girl being trafficked. They asked Mr. Williams for his ID to ensure he owned and had colour of right to the apartment.

PC Sarah Kenny located the female in the bathroom of the unit with a male. She gained entry to the bathroom and saw the female, asking if she was 14, and the female agreed. She observed the tone of her voice and her eyes shifting back and forth. She appeared to be on drugs or alcohol at the time. Due to the way she walked and her mouth movements, her glossy eyes, and being super unstable, the officer believed that she was on drugs.

PC Kenny’s body worn camera was played in evidence. It showed the condition of the female, including the swaying of her body, and her reaching out, touching and holding the female officer at various times. Officer Kenny believed she had just ingested drugs. After she took the female downstairs, she was not aware of what was happening inside the unit. Officer Kenny had the impression that the female did not want to be there with the males in the unit. The female said she met the guys at a club. Officer Kenny was of the view that this could be human trafficking. The officer wanted to get her to the hospital quickly as the result of the concern as to drugs being in her system and the view that the drugs might suppress her breathing. Although the female said she took cocaine and alcohol, the officer was of the view she did not quite know what she had taken. If she had taken cocaine, given her presentation, the officer was of the view, given her experience, that she took other drugs such as psychedelic drugs as well. In Officer Kenny’s view, this was a human trafficking investigation.

PC Kenny removed the female from the unit at 8:08 and 55 seconds and took her down to the lobby of the condo building. PC Kenny was in charge of the officers and the investigation until Sergeant Mcnab arrived. He arrived to observe PC Kenny with the female, M.R., in the lobby of the building. He then went upstairs to the condo unit and PC Kenny left with the female in the ambulance shortly after. At 8:16 a.m. Sergeant Mcnab entered the unit. He advised that the female was downstairs and being seen in an ambulance.

Just prior to 8:30 a.m., Sergeant Mcnab stated in front of everyone that “I think we are going to be leaving”. Officer Gordon agreed in cross-examination that the situation with the female was most certainly concluded at 8:33 a.m. when Sergeant Mcnab said the female is saying nothing.

At around that time, 8:33 a.m., Sergeant Mcnab stated that they’re good, everyone in the unit is good. None of the detained men in the unit were told they were free to go. When Sergeant Mcnab returned to the unit just prior to 8:31 a.m., Sergeant Mcnab advised that Mr. Williams had an outstanding warrant for assault. By 8:37 a.m. Officer Cole indicated that the atmosphere in the unit was jovial and people were making jokes. By that time Mr. Williams, from viewing the body worn camera, had called his lawyer a few times. Mr. Williams continued to drink alcohol.

While the police were in the unit, the police radios were not working. This is a problem in some tall buildings in Toronto. Officers had to use cellphones as an alternative means of communication, to run checks to identify various people. Sergeant Mcnab was dealing with Mr. Williams regarding a charge he faced and had discussions regarding suggestions to deal with the charge. Meanwhile, Mr. Jeremiah and Mr. Dass continued to remain in the area, still not having been given rights to counsel, not having been told of the right to remain silent, or being given a caution. After dealing with Mr. Williams, Sergeant Mcnab advised that the female was not making allegations and he told Mr. Williams they were preparing to go.

Following that, Sergeant Mcnab was shown information by PC Gordon relating to Mr. Jeremiah. The two officers went outside the unit to discuss the matter in the hallway, away from the occupants and away from Mr. Dass. Following that discussion and receiving more information from another officer, at 9:06 a.m. Sergeant Mcnab returned inside the unit and asked Josh Jeremiah to stand up. He walked over to him and told him that there was a warrant for his arrest. This was an outstanding warrant for assault cause bodily harm, assault peace officer with a weapon, dangerous driving, flight from police, driving while disqualified, and possession of property obtained by crime. These charges arose from December 18^th, 2021, approximately 26 days prior to this investigation.

Mr. Jeremiah, and Mr. Dass, and the Poku brothers were all placed in a police wagon and taken to a police station for booking. This arose from the discovery of a firearm, discovered in a search incident to the arrest of Mr. Jeremiah.

Sergeant Ferko, who was the acting staff sergeant at the police station, was advised at 10:32 a.m. that there were four males to parade in the booking process. The first male, Michael Poku, was brought into the station at 10:38 a.m. This was Michael Poku, as indicated, and he was lodged in his cell at 11:04 a.m.

The second male was Eric Poku. He was started in the booking process at 11:12 a.m., and that continued until 11:42 a.m. when he was lodged in his cell.

Mr. Dass was the third prisoner brought in for booking at 12:02 p.m., and he said he wanted to speak to a lawyer. There was no mention of how long it had been since he was detained without an opportunity to consult with counsel. Mr. Dass was lodged in his cell at 12:28 p.m.

The last prisoner, Mr. Jeremiah, was brought in at 12:36 p.m., and he was lodged in his cell at 12:58 p.m.

Sergeant Mcnab advised that a firearm had been located in the unit. As indicated, this was what he discovered during a search incident to the arrest of Mr. Jeremiah. This firearm was a Glock 23 semiautomatic handgun. It was operable. It is a prohibited firearm. It was a 40 caliber gun with a laser sight on front. There was also one extended magazine with a capacity for 28 rounds and what Officer Cole believed were 8 rounds inside it. A round that had been in the chamber was removed. The gun was loaded. A photo of the satchel which had contained the firearm was put in evidence as Exhibit 7B, and the satchel also contained two razors, one of which was new, and one of which was used. There were two loose rounds in the satchel. They were photographed and put in evidence. One round was a Luger 9 millimetre and the other was a hollow-point bullet with Sig Luger 9 millimetre.

At the time, Officer Cole was not aware of the male in the hallway just outside the unit. Sergeant Mcnab stated that all occupants of the interior room were to be arrested for possession of a firearm. This did not include Mr. Williams, who had been in his bedroom. Mr. Jeremiah, Mr. Dass, Eric Poku, and Michael Poku were all arrested then in relation to the possession of the firearm found by Sergeant Mcnab. Others males were being read rights to counsel but Officer Cole did not read rights to counsel to Mr. Jeremiah yet. He explained this was in order that he could clearly hear and understand, and he could hear his response clearly. It was loud in the area at the time with the other officers reading rights to counsel to the other parties.

At approximately 9:15 a.m., Officer Cole read rights to counsel to Mr. Jeremiah for the warrant and for possession of a firearm. Mr. Jeremiah advised he wished to call a lawyer, and that his lawyer was Rachel Lichtman, and he gave her phone number. He was also given a caution. At 9:27 a.m. Mr. Jeremiah was loaded into a police wagon which was the means of transport of prisoners during COVID-19, and he was placed in the custody of court officers for transport. The unit was secured and sealed. PC Kenny spoke with Sergeant Mcnab at some time after the female had been taken to Mount Sinai, and she advised Sergeant Mcnab that there was no complaint of sexual assault at that time. It is not clear to this Court what time that took place.

The following day, on January 14^th, 2022, a search warrant was obtained to search unit 1807. During the execution of this search warrant, the police located a second firearm in the unit, being a Glock semiautomatic handgun, model 26 Gen5. It is also a prohibited firearm. It was also operable, it had an extended magazine, and it was loaded with a hollow-point bullet in the chamber. The location of this second firearm in the unit was not in evidence in the trial. A stun baton was located in a grey Hyundai.

DNA evidence appeared to suggest that the firearm seized from the unit during the search incident to arrest had DNA on it, 8.6 million times more likely to originate from Mr. Dass and two unknown people than if it originated from three unknown people, unrelated to Mr. Dass.

Relevant to Mr. Jeremiah, he was subject to a section 109 weapons prohibition order in force at that time, relative to counts 12, 13, and 14 in the information. Relative to Mr. Dass, there was a section 109 weapons prohibition order in force on January 13, relevant to counts 8, 9, and 10 of the information. Mr. Dass was also subject to a probation order which was in effect at the time, to not possess any weapons, relative to counts 11 and 27 of the information. DNA evidence appeared to suggest that the firearm seized during the execution of the search warrant was greater than one trillion times more likely to originate from Mr. Jeremiah and two unknown people than if it were from three unknown people, unrelated to him.

Consideration of evidence.

There is a need to consider the credibility and reliability of the evidence called on the blended Charter applications in the voir dire and to make findings of fact. Following that assessment, the Court will consider the Charter applications. The Court will, at this point, consider the evidence of the various witnesses.

PC Sarah Kenny

In the mind of PC Kenny, everyone in the unit was detained. She stated that at the time, at a minimum, the males were detained in terms of what the situation was with the female, why she was there, and what was happening. Most of her relevant evidence is uncontradicted and set out above. PC Kenny was not really challenged in terms of credibility and reliability. She was not contradicted, there did not appear to be any issues with her evidence, and portions of it were confirmed by body worn camera footage. She was not contradicted and her evidence was not challenged by defence counsel. The Court found her evidence to be credible and reliable.

PC Kyle Cole

The male and female that had been in the separate bedroom of the unit got dressed after the entry by police. The male, Mr. Williams, according to PC Cole was getting “heavily irate” in relation to the circumstances, and he and Officer Gordon switched their positions. He was somewhat nervous about the patio door in the unit and he likes to place himself between people and the patio door. At the time, Mr. Jeremiah appeared calm. The officer’s understanding was that they were investigating the suspected underage female. The officer was just waiting to see other information being gathered. Mr. Williams was upset, but other people were rather cordial and their demeanour was polite. He and the officers had to note who they were dealing with for a report. He was thinking of an incident report, although he did not know exactly what they had.

Charter Rights

The officer had no problem with Mr. Williams making a phone call to the person he said was his lawyer. The officer did not give rights to counsel to Mr. Williams. The officer was not aware of anyone else indicating that they wished to speak to counsel other than Mr. Williams. At 8:16 a.m. Sergeant Mcnab entered the unit. Sergeant Mcnab advised that the female was downstairs and being seen in an ambulance. At that point, Officer Cole understood that the female was safe. Officer Cole testified that he should have realized at that point that they had found the female and that their role had changed to investigating the parties for criminal activity and that they should have been advised of their rights to counsel.

Officer Cole was not thinking that at the time, but, with the benefit of hindsight and having more experience as of the date of his evidence, he understood that to be the case. He had one and a half to two years experience at the time of the allegations, and four years experience by the time he testified in court in this trial.

Officer Cole admitted that at that point the parties were in investigative detention. There were questions as to what had occurred in relation to bringing her up to the unit and who was with her, as seen in the video. There was a video of the female and two males from the elevator. The two males were later determined to be Mr. Dass and Mr. Jeremiah. At 8:17 a.m. this officer ran the name Joshua Jeremiah on his phone for internal and CPIC checks. He did not note what he had found for Mr. Jeremiah. Officer Cole took notes from a Health Card for Joshua Jeremiah. He passed this photo ID to Officer Gordon. He did so to determine if he was violating any conditions of release, if there were any mental health issues, suicidal tendency, officer safety issues.

At the time Officer Gordon was still dealing with Mr. Williams, who was arguing with him. Officer Cole provided his phone to Officer Gordon to continue running checks. The phone had the information displayed regarding the checks of Joshua Jeremiah. At the time the police radios were not working, given the height in the building. Often the radios did not work at that height in a building and the officers needed to use their phones at the time, which takes more time. Officer Cole explained that he was under the assumption that other officers were identifying the other parties in the unit. At 8:17 a.m. Officer Gordon asked Mr. Jeremiah to step over there, meaning to move away from the balcony. This investigation was recently after the incident of a woman who fell from a balcony. This officer was dealing with Mr. Williams and trying to get him away from the balcony. It makes the officer nervous, particularly when it’s the 18^th floor and the man was being argumentative. The officer’s attention was focused on keeping everyone safe. People’s behaviour can change on a moment’s notice and the officer stated he must keep aware of that. The officer was not thinking of reading rights to counsel as the first thing on his mind at the time. When asked if this was something he planned to do, he said that if the investigation continued further, he should have provided rights to counsel. When asked when he should provide rights to counsel, he stated at the point that a person is not free to go, when being investigated and detained.

On another officer’s body worn camera, one man asked to speak to a lawyer, but that was not on the officer’s mind at the time. He admitted that reading rights to counsel should have been on his mind at the time but it was not. At the time he did not know what offence they were investigating, the parties were in investigative detention, and he admitted that the parties should have been made aware of their rights to counsel and given the ability to call a lawyer.

When asked what offences he was concerned with at the time, he indicated assault, sexual assault, or kidnapping, but that was not something he was immediately aware of or thinking about at the time. He explained that he was more concerned to find the girl and ensure she was safe. However, he did admit that at this point in time the girl was safe, as the detective had made comments in that regard. Prior to that time, PC Cole testified that they had gone into the unit to locate the female, to make sure she was safe. After that was determined, depending on other information, there might be an investigation, such as potentially for human trafficking. In the time that followed from 8:19 and afterwards, he understood his role was to stand by, to ensure that everyone was safe, that no one was doing anything to cause harm to anyone, nor to destroy property while the investigation continued.

In relation to destruction of property, he explained that arising from mental health issues in other experiences, people can damage property and become violent. At 8:29 a.m., as shown on the body worn camera of Officer Cole, Mr. Williams was drinking from a bottle of Crown Royal. The officer did not have a concern about that as Mr. Williams was calm and collected at the time.

Sergeant Mcnab stepped out of the unit at a point and nothing had been communicated by him to Officer Cole as to why they were still in the unit. The understanding of Officer Cole was that they were doing further investigation, but the parties were detained and searched and they should have been given rights to counsel, and then the officers could continue their investigation. Just prior to 8:30 a.m., Sergeant Mcnab stated in front of everyone that “I think we are going to be leaving”. At around that time, 8:33 a.m., Sergeant Mcnab stated that they are good, everyone in the unit is good. It was the understanding of Officer Cole that meant that everyone was free to go, although he admitted that none of the men in the unit were told that at any time prior to the arrest of Mr. Jeremiah after 9:00 a.m. Officer Cole testified that he and the other officers were awaiting direction as to whether the investigation was completed.

At 8:31 a.m. Sergeant Mcnab left the unit but he got a phone call. When Sergeant Mcnab returned to the unit just prior to 8:31 a.m., he advised that Mr. Williams had an outstanding warrant for assault. Officer Cole was not aware of the details regarding this warrant and if he could be released. Sergeant Mcnab stated that the warrant for Mr. Williams had not been sworn, that he could deal with that later. Just prior to 8:42 a.m., Officer Gordon passed the cellphone to Sergeant Mcnab.

In terms of their current status in the unit at the time, Officer Cole understood that they were just waiting for orders as to whether they were leaving or not at the time. Mr. Williams was laughing and everyone was pretty laid back and relaxed. Then Mr. Williams went into his bedroom and closed the door. At that point Officer Cole’s view was that they were waiting for Sergeant Mcnab to say they were out of there. He did not know what was going on in the hallway.

At 9:06 a.m. Sergeant Mcnab returned inside the unit and asked Mr. Jeremiah to stand up. He walked over to him and told him that there was a warrant for his arrest. PC Cole stated that he was not given direction to do anything until Sergeant Mcnab advised him to place Mr. Jeremiah under arrest as he was wanted on an assault police charge. PC Cole placed Mr. Jeremiah under arrest for dangerous driving, assault police, and fail to remain. Cuffs were placed on Mr. Jeremiah and he was searched incident to arrest.

Officer Cole asked if someone came in with a duffle bag or a bag. He indicated that he was not referring to a specific bag, he was inquiring as to whether Mr. Jeremiah wished to have property with him, to come with him, such as a debit card. Mr. Jeremiah responded that he wanted to keep his bank card there but take the cash with him. While he and his partner were doing the arrest, PC Cole then was directed by Sergeant Mcnab to provide scene of crime duties. He collected evidence, including the firearm which was the subject of the arrest of the parties. PC Cole was not challenged to any notable degree by either defence counsel. His evidence was consistent with the body worn camera footage and generally consistent with the evidence of other witnesses in the voir dire. The Court found his evidence to be credible and reliable.

Officer Brandt Gordon

Officer Gordon, as of December 2022, was entering his sixth year as a police officer. He also received the call regarding the female who looked 14 to 15 years old, looked intoxicated, and is set out above, as far as information. He was working with PC Johnson. They attended at 19 Bathurst after they received information from PC Kenny. He and others had concerns about the female. As set out above, they viewed part of the surveillance video of the building elevator showing the two males and the one female that they thought were related to the dispatch call. Prior to entering the unit, he understood that the purpose was to ensure the female was safe and that everything was okay with her, that she was a potential underage female, a potential sexual assault. As he entered the unit, he had a taser in his hand. He did this because he did not have any information as to who or what was inside the unit. They were going into an unknown environment and they did not know what they were going to encounter.

Charter Rights

Although the prior plan was to detain everyone inside the unit, the giving of rights on detention was not on the officer’s mind as they entered. After entry, Officer Gordon observed that there was a coffee table between Mr. Jeremiah and the sofa in the unit, near the balcony door. When Officer Gordon entered, he ordered Mr. Jeremiah to move closer to the balcony door. Officer Gordon did not know any of the males in the unit or anything about them. He had to expect the unknown. At the time Mr. Jeremiah did not have a satchel on his person and he did not have anything in his hands. He told Mr. Jeremiah to get down and he went down on the floor. He did not get up until Officer Gordon told him to get up.

In cross-examination, Officer Gordon admitted that Mr. Jeremiah asked, “what did we do?” And he said “wrong house”. At 8:07 a.m. the officer stated “the white girl that you were with, where is she?” Mr. Jeremiah said “bathroom” or motioned towards the bathroom. Up until that point the female had not been found. As indicated earlier, Mr. Jeremiah was very detained. Officer Gordon admitted that from the outset he was detaining Mr. Jeremiah and he admitted that he never said that Mr. Jeremiah was being detained.

After entering the unit, the plan, according to Officer Gordon, was to separate the males. Officer Gordon said to take Mr. Dass over there but did not say to remove him from the unit or take him to the hallway outside the unit. Officer Gordon approached Mr. Jeremiah who was near the television in the unit and who had his hands up. The officer asked him if he had any ID, and he did this to get information to do police checks which could change things. He explained that it might explain a violent history with the police, which might make him more heightened or aware of their movements, and what they might have access to around them. If the person had no history with the police it might allow the officer to bring his guard down a little bit.

He told Mr. Jeremiah he would say why they were there after he got his ID, and he explained he did that because if you tell people first what you’re looking for, sometimes they’re less likely to cooperate, in terms of giving their identification, and then the officer would need to take them to the police station. That is not something he wanted to do.

Officer Gordon felt comfortable not searching Mr. Jeremiah based upon what he saw, given that he put his hands up, and he was not hostile. He asked Mr. Jeremiah where the female was and he cooperated by pointing to the bathroom area. He was, for the most part, cooperative. The officer wanted to speak to the female first, to see if anything had happened. Mr. Jeremiah told the officer he needed to speak to the owner of the condo, and he kept saying that he wanted to know what was going on.

At the time the police radio was not working. That is a problem, as indicated earlier, in some tall buildings in Toronto. Officer Gordon wanted to identify who he was speaking with, to figure out if the female was okay, and if anything had happened. A lot of the information came from the body worn camera videoclips from Officer Gordon. He stated he was there regarding the two guys and the young girl, he wanted to investigate if everything was okay. Mr. Jeremiah responded, okay, you just want to figure out what is going on. Officer Gordon explained that if someone called the police and had concerns you would want the police to do what they were doing. He felt that Mr. Jeremiah completely understood and he said okay, if that’s what you’re here for, by all means. Mr. Jeremiah was very respectful and cooperative with Officer Gordon.

Officer Gordon was of the view that when they first entered the unit a lot was going on. The belief of the officer was that they were first in the unit for exigent circumstances relating to the female. At the time, he wasn’t necessarily thinking about detention and reading rights. However, when cross-examined, he admitted that at 8:11 a.m. things had calmed down, the officers were watching everyone, the music was turned off, no one was acting erratically or in a worrisome way. Officer Gordon had put away his taser. He admitted that it was an oversight on his part to not have advised Mr. Jeremiah that he was being detained.

In cross-examination, Officer Gordon admitted that from the moment the police officers entered the unit, to the time Mr. Jeremiah was arrested, he was not free to leave, he was not free to move around the unit as he wished. He agreed that rights to counsel should be given as soon as practicable after the detention begins. Officer Gordon agreed that Mr. Jeremiah was detained the whole time, he was not advised that he was detained, he was never told he could call a lawyer, he was not given an opportunity to call a lawyer. He agreed in cross-examination that it was not proper where no rights to counsel were given to ask the man questions before being given rights to counsel.

At one point Officer Gordon volunteered that Mr. Jeremiah had said my lawyer said not to say anything, not to answer questions, which the Court would note was presumably advice prior to this detention. The officer realized this oversight when he returned to the police station and when he reviewed his body worn camera. Previously, it hadn’t crossed his mind, when he was in the condo unit, to advise him of the reason he was being detained. The parties were not advised of their right to remain silent.

When they first entered the unit, the officer had said that the female outside the unit had been assaulted. He’s not sure why he said that. This was one of various areas of testimony where his evidence was inconsistent with other evidence, in particular details, in this trial.

Mr. Jeremiah provided his green provincial Health Card when he was asked to identify himself. At the time, the officer saw that he was a person of interest in relation to the assault police charge. The system did not show that there was a warrant for his arrest. The officer first learned about this around 8:06 a.m. That was obviously shortly after the officers entered the unit. From 8:06 to 8:42 a.m. the officer did not bring this information to the attention of any other officer on scene.

Sergeant Mcnab was not present when he obtained the information at 8:06 a.m., as he arrived sometime later, at approximately a few minutes before 8:18 a.m. Officer Gordon waited until the situation with the female was sorted out. Then the situation with Mr. Williams and sorting out that situation arose, according to the officer. It was not until after that was sorted out that Officer Gordon brought the information regarding Mr. Jeremiah to the attention of Sergeant Mcnab.

When Sergeant Mcnab stated to everyone in the condo unit that “we are going to leave the unit or get ready to leave”, that is when Officer Gordon brought to the attention of Sergeant Mcnab the POI, or Person of Interest, notation on the cellphone return for Mr. Jeremiah. There was a need to telephone the police station to speak to a detective, to get more information regarding the person of interest notation. The officer brought this information to Sergeant Mcnab. Officer Gordon could not recall what he discussed with Sergeant Mcnab when he turned off the audio for his body worn camera. However, when the body worn camera audio was turned off, as they spoke in the hallway outside the unit, they were discussing Mr. Jeremiah. It remained muted while Sergeant Mcnab was alone in the hall speaking to someone on the phone. Later, Officer Gordon forgot to turn off the muting on the body worn camera. It was right after that Sergeant Mcnab returned inside the unit and arrested Mr. Jeremiah for the assault police charge for which Mr. Jeremiah had been noted to be a person of interest.

The Court’s going to stop at this point to take an afternoon recess.

Is there the ability to have him use the washroom facilities if he wants it on this floor or does he have to go ... There is? Can we do just a ten minute recess. Mr. Daas, I’m worried if we let you out of that room and you start walking around, they won’t let you come back. I just want to take a ten minute recess. I don’t know if you need to leave the room or not. If we lose you for a while there is nothing I can do about that, so hopefully, you’ll be here in ten minutes, okay?

ANTHONY DASS: Okay, thank you.

THE COURT: So people can be excused for ten minutes. I’m just going to wait here with my Clerk for a second.

R E C E S S

U P O N R E S U M I N G:

THE COURT: Okay, just continuing with the reasons. Later, when Sergeant Mcnab asked Officer Gordon where Mr. Jeremiah was when the officers entered the unit, Officer Gordon indicated that Mr. Jeremiah was between the coffee table and the TV, near the balcony door. Officer Gordon never said that Mr. Jeremiah was on the couch. Officer Gordon received the Health Card from Mr. Jeremiah but he didn’t know if it came from a wallet and he didn’t remember if he saw Mr. Jeremiah with the wallet. He did not see Mr. Jeremiah discard anything after they entered and he could not tell if he was wearing a satchel or holding a wallet. He did not appear to be holding anything in his hands. Officer Gordon did not tell Sergeant Mcnab that Mr. Jeremiah had dropped anything.

In cross-examination, Officer Gordon testified that as he entered the unit it looked like Mr. Dass took something off his shoulder and put it on the couch. It looked like the corner of a satchel coming off his back. At the time, Mr. Dass was standing in the area of the couch, next to the kitchen, not Mr. Jeremiah. Again, that’s another important piece of evidence.

Officer Gordon admitted in cross-examination that when he saw Mr. Williams on the phone with his lawyer that should have triggered him that the males in the apartment should be told they could call a lawyer. Later on, Officer Gordon spoke with the tenant of the unit, Mr. Williams. Mr. Williams took out his cellphone and spoke with his lawyer. Officer Gordon did not have any concerns about Mr. Williams using his phone for that purpose. He testified that other people present were more than free to speak to their lawyer. Officer Gordon did not advise any of the occupants in the unit that they were free to call their lawyer. He explained that this was a complete oversight on his part. He felt that there were so many things going on through his mind that he forgot to read to Mr. Jeremiah his detention rights. He did not realize that he had neglected to do that until quite a bit later at the time they left the unit.

Later in the body worn camera he advised Mr. Williams that they were investigating a possible sexual assault, they were not sure, and the safety of the female. He stated that it was oversight on his behalf to not advise Mr. Jeremiah that they were there to investigate a possible sexual assault and the safety of the female.

As indicated, Sergeant Mcnab arrived on scene in the unit at 8:16 p.m. He was the supervisor on scene. His role was to ensure everything went smoothly. Sergeant Mcnab stated in front of everyone, loud enough for everyone in the unit to hear, that there was a young lady downstairs in rough shape.

Shortly after, Officer Gordon had his phone in his hand, where he was looking at the criminal history for Mr. Jeremiah. Officer Gordon had some questions and concerns regarding Mr. Jeremiah from what he saw on his phone, but he testified that since they were not specifically there for him, and they were there for something else, he wanted the first matter dealt with before anything related to Mr. Jeremiah.

Officer Gordon was of the view that there was further investigation that needed to be done regarding Mr. Jeremiah. For the criminal check on him, Officer Gordon did not have his own phone and he used Officer Cole’s cellphone. He elaborated that the information on his cellphone required that he call someone at the police station, a detective, to go through a case that showed a criminal check displayed on the cellphone. Officer Gordon did not do that himself but communicated that to Sergeant Mcnab. He did not advise Mr. Jeremiah of any of this and Officer Gordon admitted that was his mistake.

As of 8:25 a.m., Officer Gordon admitted that he collected all the necessary information regarding Mr. Jeremiah. The only information received by Officer Gordon in relation to the female came from Sergeant Mcnab.

At 8:29 a.m. Officer Gordon muted his body worn camera to have a conversation with Sergeant Mcnab. He could not recall what they spoke about. Officer Gordon testified that the Toronto Police policy permits muting to speak about investigative techniques or sensitive information they do not want the public to overhear. Officer Gordon knew nothing about Mr. Dass or what was happening with him. At one point, Officer Gordon forgot to press the button to turn back on the audio recording of the body worn camera.

Sergeant Mcnab returned to the unit and advised Mr. Williams there was an outstanding warrant for him at the time. The Court would note from viewing the body worn camera that the conversation Mr. Williams had in the open with his lawyer would have been an obvious situation where other occupants would have realized he was speaking with his lawyer on the phone. Following that, Sergeant Mcnab advised the occupants in the unit that the female was fine, she’d been taken to the ambulance, we have talked to you guys, we are on our way. And it was 8:34 at that point. He said everybody is good. However, Sergeant Mcnab went on to deal with Mr. Williams for an outstanding arrest that had not been processed, and he was going to have it dealt with on scene to avoid taking Mr. Williams to the police station. The Court would note he essentially was not dealing with Mr. Dass or Jeremiah whatsoever. He was the officer in charge of the scene.

Officer Gordon had been dealing with both Mr. Jeremiah and Mr. Williams, he was at this point trying to figure out if Mr. Williams was going to be released on a Form 10. He again muted his body worn camera at 8:34 a.m. when he spoke to Sergeant Mcnab about Mr. Williams.

As time went on, the atmosphere in the unit became more relaxed and people were laughing. Officer Gordon was not thinking about the legal situation of the males in the unit. He obtained the cellphone again from Officer Cole, as he knew the investigation regarding the female was coming to an end, but he remembered he had to deal with the returns of information regarding Mr. Jeremiah and to share that with Sergeant Mcnab. Mr. Jeremiah was listed as a person of interest in an investigation.

Later, he asked Mr. Jeremiah questions but he did not read him his detention rights and he admitted he should have done so. He volunteered that there was no excuse for not reading Mr. Jeremiah his rights. Officer Gordon and Sergeant Mcnab went outside the unit, in the hall, muting the body worn camera of Gordon, so the two could discuss the specifics of Mr. Jeremiah being noted as a person of interest. It did not occur to Officer Gordon to tell Mr. Jeremiah what they were looking into.

It was around 8:52 a.m. Officer Gordon spoke to Mr. Jeremiah with the body worn camera muted because he forgot to turn the audio back on. He could not recall what he discussed with Mr. Jeremiah.

Later, at 8:54 a.m. Officer Gordon was looking at the information regarding Mr. Jeremiah being a person of interest for striking an officer with a motor vehicle. There was no reason why he did not tell Mr. Jeremiah that and he said it didn’t cross his mind to do so.

At 8:56 a.m., Mr. Jeremiah was questioning Officer Gordon about what he was looking at in relation to him, and Officer Gordon told him he was waiting for a phone call. Mr. Jeremiah asked, “a phone call about what?” And PC Gordon said, crimes. Mr. Jeremiah asked what kind of crimes? And PC Gordon said, crimes I don’t like. He admitted he could have given Mr. Jeremiah more information regarding this investigation but stated that he did not want Mr. Jeremiah to get more excited or amped up if he told him what they were investigating, that everyone had become a lot more calm and he wanted to keep it that way. He had no concerns regarding safety at the time.

At 8:58 a.m., he spoke again with Sergeant Mcnab and the body worn camera was muted, but he could not remember what they spoke about.

At 9:06 a.m. PC Gordon advised Mr. Jeremiah he was under arrest for trying to run down a police officer with his car. Mr. Jeremiah and Mr. Dass were taken to the police station, as were the two Poku brothers, as they were all placed under arrest for the possession of the firearm found in the satchel in the search incident to the arrest of Mr. Jeremiah. Mr. Williams was advised to vacate the unit as a search warrant was being sought. Mr. Dass was paraded before the officer in charge at 12:02 p.m., and Mr. Jeremiah was paraded starting at 12:36 p.m., as indicated earlier.

Officer Gordon admitted he muted his body worn camera at times when it should not have been muted. In assessing the credibility and reliability of the evidence of Officer Gordon, the Court would note that he was generally consistent in his evidence throughout lengthy examination in-chief and cross-examination by two defence counsel over the course of four days. He made many admissions against interest, including admitting that he muted his body worn camera on occasions when he should not have done so. He also made a great number of material admissions against interest in relation to detention of Mr. Jeremiah, his failure to advise Mr. Jeremiah that he was detained, his failure to give rights to counsel, and that he never saw Mr. Jeremiah with anything in his hands when Officer Gordon entered the unit. He also gave evidence contrary to the Crown’s case, that when he entered the unit it was Mr. Dass that was closer to the couch and that he saw what appeared to be Mr. Dass taking something off his shoulder, that appeared to be a satchel, and placing it on the couch.

The Court has noted above a minor detail which was inconsistent in terms of the female having been assaulted. Overall, the evidence of Officer Gordon was consistent with the body worn camera footage as it recorded events. It was generally consistent with the bulk of evidence from other officers in this trial. The Court found the evidence of Officer Gordon to be credible and reliable and accepts it as an accurate version of events for the findings of fact by this Court.

Detective Dan Mcnab

Detective Mcnab was working as a sergeant in uniform on the day of the allegations. He had been a police officer for 22 years with the Toronto Force. He was the supervisor of the uniform officers on scene. Based on the nature of the radio call, this was one that was suitable for him to attend with his officers who had been dispatched. He had heightened concern in relation to the call relating to a female who appeared to be 15 years of age, heavily intoxicated, falling over, with two men in their mid 20’s. She was not dressed appropriate for January, wearing only a tank top or bra. There were concerns related to possible sexual assault, human trafficking, et cetera. Human trafficking in that area of Toronto was quite prevalent at the time.

Sergeant Mcnab learned that officers had entered the unit at 8:07 a.m. When he arrived on scene, he saw Officer Kenny with the female in the atrium of the building. She appeared to be 14, 15, or 16 years of age. She was wearing only a bra, not a tank top, no shoes, was extremely intoxicated, and on either drugs or alcohol. She had difficulty putting together a sentence. Her eyes were unable to focus and her head bobbed back and forth. Her condition was such that she was only able to provide some information. When she was asked if the males had touched or hurt her, he was unable to hear her response, or, sorry, to understand her response. She was very incoherent. At one point she indicated that they had touched her. At another point later she indicated they had tried to touch her. She had been taken to a condo unit by two men and there were four men in the unit. She was found in the bathroom, behind a locked door, with one of the men.

There was heightened concern as to whether an offence had just or was just about to happen. The role of this witness as the uniformed sergeant on scene was to gather information from the officers, to act as a liaison with the Criminal Investigation Bureau, to make phone calls, and become a conduit for all the information gathered. The police radio transmissions were not working, so all communications had to be done by cellphone. He spoke with Officer Kenny before entering the unit, and stated that he was going to go to the unit to have a peek, which he meant was to see if there was anything in plain view to indicate that a sexual assault had happened. He wanted to preserve any potential relevant evidence after they had entered under the exigent circumstances rationale. He also wanted to identify the parties in the unit, in the event that the female later disclosed an offence such as sexual assault. He wanted to ensure, as stated in cross-examination, that nothing was removed from the unit. He also wanted to gather information as to whether an offence had occurred. When he was in the unit at 8:16, he asked about the owner of the unit, to explain why the police were there, and to see if he had any knowledge of the female. The sergeant’s view was that the occupants could choose or not to participate in the interaction he and his officers were having with them in questioning them.

Charter Issues

Significantly, this Court would note that Sergeant Mcnab had a role to play in ensuring that the investigation was done properly, and, this Court would add, that Charter rights were being observed on scene. That’s not in evidence but that’s the Court’s view. Sergeant Mcnab did not ask any of the officers in the unit, who were all under his supervision, anything about Charter rights, right to remain silent, and any cautions being given to anyone. He just assumed, given the delay in time for him to get on the scene, that the officers had given the parties rights to counsel.

Sergeant Mcnab did not ask any of the police officers in the unit if they had given rights to counsel and cautions to the occupants in the unit. He had a responsibility to ensure that rights to counsel were read and that they were told, as persons in the unit, that they were detained. He also seemed to rationalize that, on the basis of certain things that happened, he believed rights to counsel had been read.

In cross-examination he clarified, he thought that they had also been given a caution advising them of their right to remain silent. He did not believe he needed to restate all of this before asking the occupants questions. In cross-examination, Sergeant Mcnab agreed that he should have taken the time to ask the officers about rights to counsel before questioning the males in the unit. He testified that he did not realize until the time of the trial that the officers on scene had not given rights to counsel. Sergeant Mcnab agreed that if rights to counsel were given, and a person wished to exercise rights to counsel, that the officers ought not to question them.

Interestingly, without the knowledge, but just an assumption that rights to counsel had been given, the Court would note that Sergeant Mcnab also did not ask or ascertain if anyone wanted to speak to counsel. In cross-examination he testified he did not think to ascertain if there was a desire to consult counsel. This is critical as it impacted directly on whether he should have asked those persons any questions. Instead, the Court would note Sergeant Mcnab took the position that he was addressing a group, and, if anyone wanted to answer his questions, they could choose to do so. He agreed that the obligation to hold off questioning if a detainee expressed a desire to consult counsel was the same, regardless of whether he was addressing individuals or a group.

In cross-examination he testified that if the parties in the unit answered the questions of Sergeant Mcnab regarding the presence of the female in the unit, they could have provided incriminating information. Sergeant Mcnab testified that if a detainee wanted to consult counsel, he would not have been able to provide a suitable opportunity to consult with counsel in the unit.

This is important, the Court would note, as it was happening when Sergeant Mcnab actively questioned the parties about the female and the potential sexual assault, without telling them rights to counsel, and the reason for the detention being a potential sexual assault. Sergeant Mcnab testified that Officer Gordon told him that the surveillance video showed that Dass and Jeremiah were the two males who had come up the elevator with the female to the unit. The concern of Sergeant Mcnab was that there was a potential sexual assault relating to the female who had been in the unit. He did not advise them that they were being detained for this possible sexual assault, but instead testified that he thought that was what the officers had already told them. He testified he did not know what the officers had told them. He said if he knew that the officers had not told them the situation, this reason for detention, he would have told the males this information. While in the unit, Mr. Jeremiah said, if we are being charged, we want to speak to our lawyers, if not, he did not want to say anything. This was shown on the body worn camera evidence. Sergeant Mcnab testified that was not how he remembered the situation. Unfortunately, as it relates to the reliability of his evidence, the body worn videoclips are objective evidence of what took place. This is one of the instances where the Court has concerns about the reliability of the testimony of Sergeant Mcnab.

Sergeant Mcnab stated that the officers were in the unit to preserve evidence, yet he did not even go into the bathroom where the female had been found with the male. He agreed that he should have looked in that area. Sergeant Mcnab questioned the occupants and owner of the unit rather than the officers, seeking to get what he said was an unfiltered view of the situation. He agreed in cross-examination that he was intending to elicit information from the males in the unit. He stated he wondered if there was a very good explanation as to why the female was there, potentially they knew the female, he was looking for an explanation that might not make it look as bad as it seemed.

In cross-examination, Sergeant Mcnab agreed that he was trying to elicit information from Mr. Jeremiah and the other occupants in the unit. He agreed that he told the occupants that he was not charging anyone and he does not know why he said that to them. The Court would note that there was no determination one way or the other as to whether charges would be laid against the parties. What he told the people in the unit was unfounded and inaccurate. This is another instance where the Court has some concerns regarding the reliability of his testimony.

At one point, one or two of the males, presumably the Poku brothers and not Mr. Jeremiah or Mr. Dass, said they were trying to take care of the female in the bathroom. Sergeant Mcnab testified he did not totally believe that statement. At the same time he believed there was potentially a sexual assault, yet he did not tell anyone they were being detained in investigative detention related to a possible sexual assault or any other possible criminal offences. Through interactions he heard from the occupants, reference to their lawyers and their obligation to participate or not, which made Sergeant Mcnab believe that rights to counsel had been read and understood and they were exercising those rights.

Mr. Jeremiah stated we have all been through the system, and he articulated what their lawyers tell them. Mr. Jeremiah also said he was not going to participate in any conversation. Sergeant Mcnab did not believe Mr. Jeremiah had called or spoke to a lawyer at that time, but he believed he understood his rights. Sergeant Mcnab did not feel he would be able to provide an opportunity to consult with counsel in the unit, as he said the privacy level was zero. He would need to have an officer with each male and they were in the midst of a very dynamic investigation. However, it is important, this Court would observe, that was in the context of questions being posed repeatedly to the occupants by the police. He acknowledged that the occupants were under no obligation to cooperate with the police, yet he did not tell them that. He mentioned to them that the police might obtain a search warrant, to indicate the seriousness of the situation, yet Sergeant Mcnab continued to ask numerous questions.

At one point a male, believed to be Mr. Poku, stated that he tried to take care of the female in the bathroom who was sick. The occupants were not permitted to leave. He did not have any issue with one of the occupants, who was the tenant, Mr. Williams, using his phone. Sergeant Mcnab did not have an issue with him calling his lawyer because he stated it appeared to him, Mr. Williams was not involved with the female, R.M.

The Court questions that assumption on his part as it seems to have arisen simply from the fact that he was in his bedroom with another female when the police entered, and no more than that information. The Court would note that the defence, in the course of the blended voir dire, has made reference to the police officers acting differently towards black people, or members of a minority, and white people. The Court would note that from the evidence of the way in which Sergeant Mcnab dealt with Mr. Williams, that was not the case. Mr. Williams is a black man and he clearly was given preferential treatment by Sergeant Mcnab on the scene.

Sergeant Mcnab indicated he would have a problem if the other occupants, which would include Mr. Jeremiah and Mr. Dass, wanted to call their lawyers. He said his concern related to whether there might have been an offence and other suspects, making phone calls might result in evidence being destroyed, tampered, or removed. The Court is troubled by this, as Sergeant Mcnab continued to ask many, many questions of the occupants, including Mr. Jeremiah and the other males in the unit, when he did not believe that Mr. Jeremiah had called counsel. Yet, throughout his testimony he was adamant that it would not be appropriate for other males in the unit to use a cellphone to call anyone. Again, this is preferential treatment to Mr. Williams. The Court would note that at some point another occupant, not Mr. Jeremiah, nor Mr. Dass, nor Mr. Williams, did use his cellphone to call someone. Sergeant Mcnab either was not aware of that or simply condoned it. It’s unclear on the record before the Court. The Court is of the view that it seems to have been one of the Poku brothers, either Eric or Michael.

Sergeant Mcnab continued to make statements to the occupants, including that none of you guys met her in the club, that they would play the video and it would show who walked into the condo with her. At 8:23 a.m. he sent officers to watch the surveillance video of what was in the building elevator, in relation to the three coming up to the unit. Sergeant Mcnab had not seen the video. At the time Mr. Williams was on his phone with his lawyer and walking around the unit. Mr. Jeremiah asked if he was being charged with anything and, at that point, Sergeant Mcnab said I don’t know. If he received information that charges were warranted, he had an intention to charge Mr. Jeremiah, but at the time he did not know.

At 8:29 a.m., as shown on the body worn camera footage, PC Gordon asked Sergeant Mcnab to leave the unit with him, and Sergeant Mcnab did not know why. The body worn camera was muted because he was unsure of what Officer Gordon was going to tell him. He looked through his cellphone, which can provide information on CPIC, and he was concerned the information might be sensitive in nature. To this point Sergeant Mcnab had not been told the results of any CPIC checks related to the occupants.

The Court would note, as indicated earlier, Sergeant Mcnab was simply focused on Mr. Williams, the tenant of the unit. Sergeant Mcnab explained that CPIC results can fall within the category permitted for muting body worn camera as it can relate to special interest of the police, notations for the police, and potentially ongoing investigations that could be jeopardized, that should not be disclosed on body worn camera.

As it related to Sergeant Mcnab seeing Mr. Dass in the hall, he also assumed he had been given his rights. Sergeant Mcnab did not know Mr. Dass’ identity. At 8:32 a.m. he received a phone call from PC Hayne, and he exited the unit and muted his body worn camera to receive this information, as he was not sure what the officer was going to tell him. Then Sergeant Mcnab forgot to turn off the muting on his body worn camera when he returned to the unit. The information from Sergeant Hayne related to Mr. Williams, an ongoing open case where the warrant had not yet been obtained for Mr. Williams. It was the understanding of Sergeant Mcnab that Mr. Williams would not have known about the situation, so he told Mr. Williams, he told him he might be able to release him on a Form 10.

As of 8:34 a.m. he still had not received any further information regarding the female. He would not have let the occupants leave at this point, there were still officer safety issues, according to Sergeant Mcnab, and they had not cleared or searched the unit yet. It’s not clear to the Court the reason for which he’s referring to searching the unit at that point. He also had not received the CPIC returns regarding the various occupants. By 8:41 a.m., Sergeant Mcnab was discussing with Mr. Williams the nature of the allegations regarding his charge. It was a more relaxed atmosphere, people were laughing. Mr. Jeremiah and Mr. Dass still had not been given their Charter rights.

After dealing with Mr. Willaims, Sergeant Mcnab advised the female was not making allegations and he told Mr. Williams they were preparing to go. He advised that they had entered the unit lawfully based on exigent circumstances and they remained in the process of identifying the occupants in the unit. Part of that entailed the checks on the occupants.

He was cross-examined at length about the scenario of the exigent circumstances and how long he or the police would be permitted to remain in the unit after that ended. In cross-examination, Sergeant Mcnab testified that the parties were no longer being detained after 8:30 a.m. for the investigation relating to the female. Instead, they were detained to complete the checks on their identification and any outstanding warrants. He testified that once that was completed, they were free to go. None of the occupants were told this.

Sergeant Mcnab went on to contradict himself in a series of questions and answers in cross-examination. He agreed that there was nothing more to be done in investigating the case with the female. He agreed he had everyone’s ID. He agreed there were no more exigent circumstances. Sergeant Mcnab contradicted himself in cross-examination as he later stated that he would not say that the investigation in relation to the female was over and that they were no longer detained for that investigation.

Then, at 8:42 a.m., PC Gordon passed his cellphone to Sergeant Mcnab, who said he could not read it. And the two parties went into the hallway and put the mute on the cameras. This information related to Mr. Jeremiah and one entry related to a holdup investigation, and a second entry was with respect to him being of special interest to the police on an open and active case. Sergeant Mcnab made a phone call to a detective regarding this information. As it related to Mr. Jeremiah there was a notation that he was of special interest to the police, but Sergeant Mcnab did not have the details of the situation. There was also the second ongoing investigation pertaining to the Holdup Squad. There was a matter of investigative privilege in relation to the Holdup Squad information, even as of the day of the trial, and it could not be disclosed. Mr. Jeremiah was not free to go, in light of the two notations that PC Gordon had discovered and showed to Sergeant Mcnab. Sergeant Mcnab learned that the allegation was that Mr. Jeremiah drove a vehicle at a police officer and tried to run him over, the charge of dangerous driving and assault police. Mr. Jeremiah was to be arrested immediately on that charge. Sergeant Mcnab indicated he had a heightened concern regarding Mr. Jeremiah after receiving this information about him. He learned that Mr. Jeremiah was someone who had access to weapons, although he did not know if Mr. Jeremiah had a weapon in his possession. Sergeant Mcnab feared that Mr. Jeremiah might become violent once they tried to arrest him, given the nature of the assault police allegations, so he used hand gestures to signify to the officers to arrest Mr. Jeremiah, rather than stating it out loud. He feared escalation by Mr. Jeremiah. At 9:05 a.m., Mr. Jeremiah was arrested for these charges in relation to driving at a police officer.

In one of those matters, Sergeant Mcnab received information from Officer Hartog, at the police station, as a result of which Sergeant Mcnab approached Mr. Jeremiah, and Mr. Jeremiah was placed under arrest for that matter. Again, that was the assault police series of charges, and dangerous driving.

Prior to arresting Mr. Jeremiah, Mr. Jeremiah told Sergeant Mcnab that if he was being arrested he wanted to consult counsel. After Mr. Jeremiah was arrested, he was not given access to counsel. He was, however, asked additional questions by Sergeant Mcnab, including whether the cellphones were his property. Sergeant Mcnab was looking for offence-related property and he agreed that he was questioning Mr. Jeremiah, putting him in a position where his property might incriminate him, including his cellphone. Cellphones can have GPS information to potentially show that a person was at the scene of allegations. He was looking for vehicle keys. The assault police charge for which he was arrested related to using a vehicle to strike a police officer. So, this was potentially relevant to that charge. Sergeant Mcnab not only looked to seize such property, but asked Mr. Jeremiah questions regarding that property that might incriminate him regarding the assault police charge. Again, this was done in flagrant disregard for Charter obligations to a detainee who had just been arrested. The Court will comment on that further in the reasons.

Sergeant Mcnab was asked extensive questions about whether consultation with counsel could have occurred at the condo with the various detained parties. In essence, his testimony was there was a concern that there was no ability to provide a suitable place for a private consultation with counsel and, as well, that it might cause the potential destruction of evidence in the event that a call was placed to someone who could destroy evidence not yet seized by the police. However, as indicated above, there were other people in the unit that were making phone calls, including Mr. Williams, and potentially one of the Poku brothers.

Following the arrest of Mr. Jeremiah for the charges, Sergeant Mcnab asked where his property was for search incident to arrest, to search the area where he had control upon his arrest. Sergeant Mcnab found some cellphones which he thought might be valuable for production orders and GPS, Highway Traffic Act tickets and evidence related to the dangerous driving. Sergeant Mcnab asked the other officers, when they entered, where Mr. Jeremiah had been and the area where he had control. Mr. Jeremiah said the cellphones were not his. Sergeant Mcnab believed that they were his. At 9:07 a.m., Sergeant Mcnab assumed that when the officers had entered, Mr. Jeremiah had put his stuff down. However, no officer had said that. He said he was looking for Mr. Jeremiah’s wallet, which he wanted for any driver’s license, permit for a vehicle, any traffic ticket or parking ticket, to relate to ownership or possession of a vehicle potentially used in the offence. Sergeant Mcnab asked who was in the area of the satchel. One officer said no one was there. He was trying to ascertain if Mr. Jeremiah came into the unit with the satchel. An officer said Mr. Jeremiah came in with a duffle bag.

Officer Gordon did not say that Mr. Jeremiah dropped his stuff, nor did he say he was near the sofa or satchel. One officer said no one was in the area of the satchel and sofa. This was contrary to testimony of an officer, which the Court has referred to earlier, who saw Mr. Dass with the satchel, removing it when they entered the unit.

Prior to the arrest of Mr. Jeremiah for assault police, PC Gordon saw the information regarding the charges. He testified he did not have any safety concerns regarding Mr. Jeremiah. He picked up a bag, that is Sergeant Mcnab did, that was the satchel. He stated he did not think of it as a wallet. He assumes the satchel, however, was used as a wallet. He noted it was heavy when he picked it up. There were two zippers for the satchel. He opened one zipper as he said he was looking for identification papers, ownership of the car, car keys, et cetera. He then said he put down the bag and testified that the top zipper was already unzipped, which he noticed when he placed the bag down. The Court would note that Mr. Dass indicated that the zippers on the bag were closed.

Sergeant Mcnab immediately noticed what appeared to be the handle of a firearm. He did not suspect that there was a firearm in the satchel and his reaction was that he swore when he saw it. He explained that he had reason to believe that the satchel was within the area where Mr. Jeremiah was originally detained and had control of being detained, and that is why he seized it. Sergeant Mcnab asked who had this, referring to the satchel. Not surprisingly, this Court would note, no one answered the question.

The problem, however, this Court would note, is that no officer in the unit told Sergeant Mcnab that Mr. Jeremiah was in that area of the couch. Rather, as indicated in the evidence of Officer Gordon, Mr. Jeremiah was across from the table, not close to the couch. It was Mr. Dass who was in the area of the satchel when the officers entered the unit. It may well be, however, this was not communicated to Sergeant Mcnab. At 9:11 a.m., Sergeant Mcnab asked the officers if they had any video to show who had been carrying the satchel. The firearm was proved safe, as there had been a bullet in the chamber, the gun had been loaded with one round. All four males were, as noted above, charged with possession of the firearm.

In cross-examination, Sergeant Mcnab testified that they had entered the unit based on exigent circumstances and then continued to hold that unit for purposes of preserving evidence on scene. As it related to the arrest warrant, Sergeant Mcnab assumed that uniform officers continue with giving rights to counsel or caution after the arrest. That was another assumption. That was the arrest procedure for the uniform officers, according to Sergeant Mcnab. Sergeant Mcnab wanted to seize the cellphones as evidence related to the offence of dangerous driving, and fail to remain, and assault police. He indicated GPS could place a person at the scene of allegations. He also assumed that a person would want personal property be retrieved from a place that was not his house at the time of arrest, to be brought to the police station.

Sergeant Mcnab assumed that at least one of the cellphones was that of Mr. Jeremiah, based on his assumption he later stated was incorrect, that Mr. Jeremiah had dropped a cellphone when the police entered. That had not happened. This would also include personal effects, a wallet, ID, cash, or valuables. He did not see his questions as to who owned these items as questions soliciting statements from Mr. Jeremiah. The Court questions this testimony. This was an experienced and senior officer, who was seizing items and getting information in relation to driving charges, whereas he openly admitted cellphones have potential GPS information which would indicate that the phone was at the scene of allegations and thereby be incriminating. When asked, Mr. Jeremiah said none of the cellphones in the unit were his cellphone. No one in the unit identified the cellphones as belonging to them.

In cross-examination, Sergeant Mcnab agreed that when he told everyone that they would not be charged, that was an error, as he did not have full information at the time. In relation to the search incident to arrest and seizure of the satchel, Sergeant Mcnab agreed the satchel was close to the edge of the sofa, close to the kitchen, around where someone would sit on the couch. He asked Officer Gordon if this was his wallet. He was of the view this was within the surrounding area of where he was arrested, two or two and a half feet away. None of the officers indicated that he was within that range or parameters. Mr. Jeremiah was detained closer to the balcony door.

As far as the satchel, Sergeant Mcnab agreed that he had decided to search the area first near the kitchen side of the sofa, rather than the portion of the sofa closer to where Mr. Jeremiah was located when the police entered the unit. In the view of Sergeant Mcnab, a search incident to arrest would include the area where Mr. Jeremiah was located, the area where he had the most access, the area where he was located when the police entered, and where he was detained. He testified that he could have searched, incident to arrest, the area of the satchel on the kitchen counter, close to the living room. He testified that Jeremiah was two or three feet from where the satchel was located.

The Court would note that was definitely in error. He testified that his knowledge was that Jeremiah was the only person in the area at the time of what was the police entry, however, as the Court has noted, no one officer told him that. Sergeant Mcnab said Officer Gordon said that Mr. Jeremiah was standing by the window near the opposite end of the couch. The Court cannot find any basis in the evidence, from the testimony of the officers called as witnesses in this trial, to support an inference that Mr. Jeremiah was in the area of the satchel or within hands’ reach of the satchel. The Court would note from the body worn camera that this was beyond a two to three foot area where Mr. Jeremiah was located at the time of police entry. It’s also problematic, as noted above, as another officer indicated he saw Mr. Dass in the area and saw him appearing to remove what looked like a satchel from his body at the time of the police entry. It’s troubling, the Court would note, that Sergeant Mcnab testified he believed he could have searched the kitchen counter area. It is not clear to this Court how he could think that it was appropriate as search incident to arrest, in terms of proximity to where Mr. Jeremiah was upon entry, near the balcony door. When he seized the satchel, Sergeant Mcnab testified he did not know who it belonged to, that it could belong to Mr. Jeremiah. He was questioned about Officer Gordon telling him that no one was in the area where it was found. It did not seem that the statement had any effect on Sergeant Mcnab’s view that the area where it was found was within the parameters of a search warrant incident to arrest for Mr. Jeremiah.

Unfortunately I need to stop at that portion of my reasons and continue on the next day. We’ve just run out of time. So, I’ll see if the parties have any comments to make but at some point we are going to adjourn the matter as the Court canvassed with the parties earlier on for continuation date. Just a moment. Sorry, what’s the date?

K. BUNTING: We had discussed July 10^th, Your Honour.

THE COURT: July 10, thank you. July 10, it was 901 court wasn’t it?

K. BUNTING: Yes.

THE COURT: All right, July 10, 901 court. Are there any comments from counsel before we adjourn for the day?

K. BUNTING: Just to be clear on how the warrant for remand should be marked Your Honour.

THE COURT: Yes, I assume counsel want both accused to be brought in person that day?

A. WARTH: Sorry, it is generally my preference for in person, I was actually looking at my schedule and I thought I could potentially attend next week if it was on ZOOM, but, um, but otherwise the 10^th in person.

THE COURT: We’re talking July 10, not next week.

A. WARTH: Yes, I know, I had said earlier I wasn’t available next week.

THE COURT: So do you want the July 10th appearance for Mr. Dass to be in person or on ZOOM?

A. WARTH: Whatever the court prefers.

THE COURT: I think we should say in person because the difficulty that we’ve experienced today with ZOOM is that Toronto South was not bringing him in a timely way. I’m well aware of the history of the Toronto South not necessarily producing prisoners in time for court officers to have them here by ten, but I think once they are here, we can continue with the court officers in the building. Likewise, Ms. Tink do you want Mr. Jeremiah here in person?

K. TINK: In person, yes.

THE COURT: All right. We’ll have them both in person. I’m remanding them directly to that date so that there is no other judicial officer that can change what I intend to have happen that day, or make a mistake, if I can put it that way. So we’ll go directly to July 10. All right, thank you very much.

K. TINK: Thank you, Your Honour.

A. WARTH: Thank you, Your Honour.

M A T T E R A D J O U R N E D

WEDNESDAY JULY 10, 2024

BROWN, J: (Orally)

I’m going to continue then with the reasons as it pertains to Mr. Dass and Mr. Jeremiah. These are reasons for the ruling, continuing from the last date we were before the Court. We simply did not have enough time for the Court to finish the reasons. I was at the stage that we broke that day, reviewing the evidence of Sergeant Mcnab. So I’m going to continue at this point.

Sergeant Mcnab testified that when he picked up the satchel, he opened the front zipper. He said he could not see inside it. He testified that it was only when he placed the satchel back down on the sofa that it opened, as the top zipper was open, and he could then see inside, and that there was a firearm inside the satchel. He stated that he did not open the top zipper, it was already open. He maintained throughout that he did not expect it to contain a firearm. There was some weight to the satchel, but locating the firearm was unexpected. He was looking for identification when he opened the front zipper.

The defence has aggressively challenged the credibility and reliability of the testimony of Sergeant Mcnab, that the satchel zipper portion containing the firearm was open, as not being believable.

Sergeant Mcnab testified he seized cellphones believing it could be belonging to Mr. Jeremiah, that they could be his cellphones. He also stated he did not believe Mr. Jeremiah when he said that none of the cellphones were his. Sergeant Mcnab agreed that Officer Gordon told him that no one was located where the satchel was found.

While Sergeant Mcnab was questioned in cross-examination about dealing with Mr. Williams, finding out the nature of the charge which was open, and for which he was potentially arrestable, the Court would note that it is not relevant to the Court’s analysis regarding the rights to counsel for Mr. Jeremiah and Mr. Dass. While Sergeant Mcnab was questioned about not giving Mr. Williams rights to counsel, the Court would note, and it is the reason for this not being a concern to the Court, Mr. Williams was on the phone at the time, speaking with his lawyer, getting advice, as that was happening.

On some points Sergeant Mcnab’s memory was faulty and his evidence was inconsistent with body worn camera footage. This raises concerns with respect to the reliability of his evidence. He contradicted himself on various issues, regarding evidence relevant to Charter issues, such as whether he was still investigating an offence with respect to the female after 8:33 a.m. He formed opinions on scene that seemed unexplained, such as whether Mr. Williams was not a potential suspect regarding the investigation into the circumstances relating to the female. He testified as to blanket rules he was enforcing on scene, for example, that did not make sense, such as allowing Mr. Williams to be on the phone with people while stating he would not permit phone conversations as evidence might be destroyed. He did not seem to know that Eric or Michael Poku were also on the phone while he was in the unit. He did not tell his officers about any rule relating to not permitting phone calls.

Given the delayed arrival of Sergeant Mcnab, and the importance of ensuring the detainees, and, the Court would note, there were six of them on scene when he arrived, were advised of their Charter rights, one would have expected, as the Sergeant in charge of the scene, he would have spoken to his officers to ensure that that had been done. He did not do so, but rather just assumed that had been done with everyone. He made assumptions as a uniformed sergeant in charge of all of the uniformed officers, without asking any of them about it. Aspects of this evidence did not make sense to the Court.

Some of his evidence was consistent and credible, although it raised serious questions regarding Charter issues. Overall, the Court has concerns about the reliability of the evidence of Sergeant Mcnab. As noted above, there are portions of his evidence unsupported by the evidence of the other officers who entered the unit and could attest to the position of the parties, such as proximate to the satchel location.

He stretched the bounds of what a senior officer would understand to be the parameters of a search incident to arrest of Mr. Jeremiah, who was located near the balcony door and not near the satchel.

Overall, the Court has notable concerns about his evidence as it relates to the Charter issues before this Court.

Evidence of PC Brandon Johnson

As of the day of the allegations, PC Johnson was in his second year as a police officer. He arrived on scene at 7:51 a.m. and he was the passenger in the vehicle driven by his partner, PC Gordon. He was challenged in an attack on his credibility and reliability by defence counsel.

Upon his arrival on scene, he spoke to the complainant, who advised that a girl had gone into his car, she seemed under the influence, and she was in the company of two other men. The two males were described and the female was described as being 15 or 16 years of age, of slim build, wearing only a tank top and sweatpants. She had said these guys are being mean to her. Then one of the males took her out of the car and left. They went to 19 Bathurst Street. At the time they arrived, including the two officers who were working together, PC Johnson and PC Gordon, there were five officers present, including one female officer, in light of the presence of a female. They were all at 19 Bathurst Street. This building contained the condo unit which is going to be in consideration in this trial.

Security officers advised the police of the unit they thought the two males and the female had gone to. There was a concern that she might have been kidnapped, sexually assaulted, was there consent, they thought there was a female in distress they needed to speak to. They decided to go into the unit unannounced, in light of exigent circumstances, and the preservation of life and limb, and the need to preserve evidence. A master key was obtained and the officers went up to the unit. Officer Johnson was the third officer into the unit.

At the time, the room was pitch dark and there lights on top of the walls. There was just a blue strobe light, there was loud music playing. The officer could not see anyone’s hands, he could not even see how many people were in the unit. Upon entry, he escorted Mr. Dass out of the unit so he could see his hands and arms.

Officer Johnson gave inconsistent and contradictory information as to whether Mr. Dass was detained by him. He removed him from the condo unit and the two of them stood outside the unit, in the hallway.

At times during his testimony, Officer Johnson indicated that Mr. Dass was not detained, yet he admitted that if Mr. Dass tried to leave, he would have stopped him. Then he said, by definition Mr. Dass was detained. He did not advise Mr. Dass that he was being detained in an investigative detention, nor did he advise Mr. Dass as to rights to counsel. He stated he was at the time thinking about where the female was located. He admitted he understood that he was obligated to provide rights to counsel as soon as possible and make efforts to have a detainee contact counsel of choice. Entry was around 8:06 a.m., and by 8:08 a.m. he had asked and obtained from Mr. Dass his name and date of birth. He advised Mr. Dass they were there for a female in distress and a 911 call.

At around 8:07 a.m., in cross-examination he agreed that he had taken out his notebook and he was writing notes, that this would have been a good opportunity to advise Mr. Dass that he was being detained for a police investigation. That was not done.

Shortly after 8:09 a.m., the female was taken out of the unit by the female officer, PC Kenny. He did not know if she had been kidnapped, sexually assaulted, forcibly confined, he really did not know. Without advising Mr. Dass of rights to counsel, or giving him information as to being detained, he continued to ask Mr. Dass questions to figure out the role of Mr. Dass and how the girl got into the unit. He agreed he should have advised Mr. Dass that he was in an investigative detention. In hindsight, he agreed he should have advised Mr. Dass of his rights to counsel.

PC Johnson asked Mr. Dass if he had prior police dealings, prior to giving rights to counsel. He said he did this to identify him. However, notably, PC Johnson indicated that it was rare to ask this question prior to giving rights to counsel. Mr. Dass asked the officer if he was in trouble. PC Johnson testified he understood the question to be, was he going to get arrested, charged, or breached for a condition? PC Johnson responded, you will not, you are fine. Yet, as noted below, he held over Mr. Dass’ head the potential threat that he would or could be charged with a breach or other offences, and that was later in his interaction with Mr. Dass.

Later, PC Johnson did a pat down search of Mr. Dass to ensure he did not have weapons, and he only located a cellphone in his pocket. This was prior to 8:15 a.m. It did not occur to the officer at that time to give rights to counsel or a caution.

In cross-examination, PC Johnson testified that if he had advised Mr. Dass of the investigative detention, and of rights to counsel, he could ask questions, and then Mr. Dass could choose to answer or not. PC Johnson did not make reference at that stage of his evidence as to advising Mr. Dass of the right to remain silent. He agreed he continued to ask questions, even though he had not given Mr. Dass rights to counsel. He stated that this was not a deliberate decision to delay giving rights to counsel. He admitted he was using the fact Mr. Dass was on conditions to ask him if, in his opinion, he was breaching his conditions, and that he was using this as leverage to get information from him.

At 8:12 a.m., PC Johnson advised Mr. Dass that he was not in any trouble. However, he agreed in cross-examination that he was not really correct that he was not in trouble, only on the point of view of PC Johnson. He agreed that Mr. Dass was in jeopardy in the situation.

At 8:16 a.m., Sergeant Mcnab entered the condo unit. He asked the officers, did we get everybody’s info? PC Johnson responded by saying yes or giving a head nod. Sergeant Mcnab did not ask about giving rights to counsel or cautions by the officers. A question was asked as to where Mr. Dass was when they first entered the unit, and PC Johnson replied that he was standing near the TV. PC Johnson continued to ask Mr. Dass questions in relation to the investigation, without giving rights to counsel or caution. He asked, following Mr. Dass earlier saying he came to the unit with another man who was taller, if there was any of his story he wanted to change. He explained in testimony he wanted to make sure that everything Mr. Dass said to that point was still accurate and true. At this point, it had been approximately 15 minutes since PC Johnson entered the unit. It still did not occur to him to give rights to counsel or a caution. He was still outside the unit with Mr. Dass in the hall, and at that point trying to listen to Sergeant Mcnab inside the unit, and to listen to see if any information had been provided by PC Kenny regarding the interview of the female.

Sergeant Mcnab explained the reason the officers were present and he was trying to get people to speak. He then asked another officer to go and view the video for the building, showing the entry by the two males and female. PC Johnson again asked Mr. Dass who he came with and Mr. Dass did not respond.

Prior to 8:31 a.m., PC Johnson saw a quick video clip from the elevator of the building, which showed Mr. Dass, another man, and the female. Mr. Dass consistently said he did not want to talk about it. He said he was with another man, but he did not mention a female. PC Johnson had in his head that Mr. Dass was not telling him something. He was not required to say anything, but he questioned if Mr. Dass was obstructing him. He said he had used a poor choice of words to Mr. Dass, in using the word obstructing.

At 8:30 a.m. PC Johnson found out that Mr. Dass was on conditions and he asked if it was good behaviour, if he should get breached in the circumstances. He explained, he said that to get Mr. Dass to talk, to engage in conversation. It was his view that Mr. Dass was not cooperating, he was not talking about the circumstances that brought him into the unit. He made reference to the breaching of Mr. Dass just to get him to talk.

He also referred to obstruct police, stating that he could charge Mr. Dass with obstruct police. He testified he did that because he wanted Mr. Dass to talk. But that did not work.

PC Johnson wanted to elicit information from Mr. Dass, even though he still had not told him about his right to remain silent. PC Johnson made reference to 14 Division cells being empty, that Mr. Dass could sit in one of the cells. Reference was made to an "adult time out”. He admitted that at times with people the officer uses the term “adult time out”. He admitted that he said you can try to tell me honestly what happened or you could be charged with a criminal offence if you don’t speak. He also said he could be taken to Toronto South, which is the jail.

Overall, PC Johnson made reference to charges of fail to comply, or obstruct, and that the officer could charge him with that.

At one point he said that Mr. Dass had lied to him and, in cross-examination, he admitted he worded this poorly. It was not evident to the Court that Mr. Dass had lied to the officer, but rather was not providing a fulsome account. Essentially, the officer conveyed to Mr. Dass that if he did not say what happened, he was potentially going to get charged with a criminal offence. He said he stated that to get Mr. Dass into conversation. He had not been willing or forthcoming with information regarding his involvement or that of anyone else in the unit. At the same time, in testimony, PC Johnson acknowledged that Mr. Dass did not have to talk, but he did not consider telling Mr. Dass that situation.

In cross-examination, PC Johnson agreed that he should not have suggested that Mr. Dass would be charged if he did not provide information to PC Johnson. He also agreed that he had stated this repeatedly, with different wording, to Mr. Dass.

In an interesting portion of cross-examination, PC Johnson testified, in relation to putting his investigative duties above Mr. Dass’ rights, that there are risks he has to take, he was not thinking about his rights, he was thinking about the victim’s concerns and to get some information from Mr. Dass. Yet he maintained it was not a deliberate decision to not give rights to Mr. Dass.

At that point, the potential female complainant was out of the unit and with the female police officer, PC Kenny. Then PC Johnson turned off the audio of his body worn camera while he was speaking with Mr. Dass. He explained this was to let Mr. Dass know he was “talking straight up with him as a person, not as a police officer. They have a duty to be there. The more he talks, and the more he helps them investigate, the faster they leave.” He stated he was trying to build rapport with Mr. Dass. He was aware that he was required to keep the audio of his body worn camera on. He testified he muted it as an investigative technique. He stated he did not want to record the conversation as a show of good faith. The Court did not really understand why the officer turned off the audio on the body worn camera, even after considering the officer’s testimony in this regard. When asked in court if he would have used information, had Mr. Dass given him any at that time, he said it depended on the information. He did not remember what Mr. Dass said while the body worn camera was muted.

In cross-examination he stated that he does not make notes about what was said when he muted his body worn camera. When he was shown the policy and procedure of the Toronto Police Force for muting the body worn camera, he seemed to rely on an exception allowing muting for speaking to what is meant for confidential informants. The conversation he had with Mr. Dass, at that point, the Court would note, was neither a conversation with a confidential informant, nor one where the officer recorded notes as to the conversation when it did not turn into a confidential informant conversation. Clearly, the Court would note the muting of the body worn camera by PC Johnson at this point was contrary to Toronto Police policy and it should not have happened. This was a three-minute muted conversation.

Later in cross-examination, the officer agreed that he did not get the consent of Mr. Dass to have a conversation that would not be on body worn camera. He agreed he was not offering to have a confidential conversation with him. He agreed that if Mr. Dass had, in that muted conversation, provided information that incriminated him, or assisted in the investigation, it could be used against Mr. Dass and it would not have remained confidential. Yet, he said he was extending confidentiality to Mr. Dass at that point. This is another area where PC Johnson contradicted himself on significant points. He clearly did not understand how to deal with a confidential informant, nor how the exception for muting body worn camera equipment would operate for a conversation with a confidential informant. The officer testified that this muted conversation had to do with making good life choices, although he did not remember details of this conversation. This is interesting as the officer seemed to view this, as he turned off the audio, as a confidential informant exchange, yet he maintained he did not discuss with Mr. Dass the details of the investigation. There is no evidence from PC Johnson as to anything he said that could have been considered within the confines of a talk with a confidential informant. Clearly, Mr. Dass did not give information akin to that from a confidential informant. Yet there was also no real context to this category of conversation arising from the evidence of PC Johnson. He maintained he did not give an ultimatum regarding speaking to the officer, or charging him with obstruct, or breach, nor talking about the investigation. As noted, the officer made no notes of this conversation.

Overall, the Court has real concerns about the credibility and reliability of this portion of the evidence of PC Johnson. It did not seem to be in any way akin to a confidential informant conversation that he said it was to justify muting.

It was troubling to the Court that at 8:42 a.m. PC Johnson said to Mr. Dass that whoever was telling you, whatever counsel told you about not talking, they are lying. He explained that he thought Mr. Dass understood that the faster he provided information, the faster they would leave him alone. He testified he was not considering Mr. Dass’ right to remain silent at the time.

PC Johnson contradicted himself. He was asked about this stage, 40 minutes into the detention with Mr. Dass, as to whether he had turned his mind at this point to giving detention rights, and he said yes. Later, in cross-examination, he testified he did not turn his mind to this. This is clearly inconsistent and important evidence on a key point as it relates to giving Charter rights to Mr. Dass.

At points, PC Johnson became argumentative. This was particularly evident when he was questioned about his reference to legal counsel and what they say about not talking to police as being “lying”. He was asked if he was telling Mr. Dass to disregard legal advice to remain silent, and he failed to answer those questions in cross-examination. When asked again further questions, if he was telling Mr. Dass to disregard legal advice, his answer was nonresponsive, stating, “he did not speak to counsel”. PC Johnson also agreed that at that point speaking to counsel was on his mind but maintained that did not jog his thinking to provide rights to counsel to Mr. Dass at that point.

Strangely, this Court would note PC Johnson stated that at this time Mr. Dass was not detained, that if he wanted to leave, he could have left. He did not advise Mr. Dass that he could leave, that he did not advise him that he could go back into the unit. There was no real explanation by PC Johnson in his testimony as to why he did not tell Mr. Dass about that. During examination in-chief, PC Johnson testified that he believed that Mr. Dass wanted to return inside the unit, as opposed to leave the location. Then, in cross-examination, he testified he had no idea as to whether Mr. Dass wanted to return to the inside of the unit. This is contradictory or inconsistent evidence, the Court would note, that it considers in relation to credibility.

At 8:46 a.m., after PC Johnson viewed Mr. Dass as not being detained, Mr. Dass was on the telephone with someone. PC Johnson said he didn’t have concerns about that. The Court would note that this is to be juxtaposed with the firm and steadfast evidence of Sergeant Mcnab, that he would not have permitted detainees, other than Mr. Williams, to make phone calls or speak to anyone on the phone. PC Johnson stated he was just standing beside Mr. Dass, just hanging out, but notably not telling Mr. Dass he was free to go.

It was interesting that PC Johnson seemed to explain the reason for not telling Mr. Dass he was free to go on this basis. He stated that had he advised Mr. Dass he was in investigative detention, he would have told him he was no longer in detention. But since he never told Mr. Dass he was in detention, he did not tell him he could leave the area. This is, the Court would note, particularly odd and it reflects two wrongs, in not advising at the time of detention, and not advising the time that he could leave. The officer somehow rationalized that was okay with one almost cancelling out the other. However, PC Johnson also explained it was all an oversight.

As the situation continued of PC Johnson not advising Mr. Dass of the reason for detention, for rights to counsel, and of the right to remain silent, he continued to question Mr. Dass.

At 9:08 a.m., he continued to ask him about the girl in the elevator, trying to get him to talk, testifying he was “just talking and asking questions”.

In cross-examination, he testified that his intention was that if Mr. Dass did not provide information, he would be charged. This was in response to a question as to whether it was okay to tell someone they would be charged if they did not answer questions.

Then, at 9:10 a.m., Sergeant Mcnab was inside the unit and said that there was an arrest for possession of a firearm, after talking about a satchel. PC Johnson put Mr. Dass under arrest, pursuant to the direction of Sergeant Mcnab, saying everyone in the unit was to be arrested for joint possession of a firearm.

PC Johnson placed Mr. Dass under arrest at 9:11 a.m. and started to do a frisk search. Mr. Dass asked what he was being arrested for and PC Johnson said he would read rights to counsel in a second.

PC Johnson did not advise him of the reason for arrest until 9:13 a.m. and, at 9:15 a.m., he advised him of rights to counsel, to which Mr. Dass indicated he understood. Mr. Dass advised he did not wish to call his lawyer at that time. He did provide a name of his lawyer. He was also given a caution regarding possession of a firearm, to which he stated he understood.

At 9:27 a.m., Mr. Dass, together with other arrested parties, were placed in a wagon to be transported to 14 Division. This was the procedure at place for transporting prisoners during the COVID-19 pandemic from scenes of an investigation to the police station.

Mr. Dass was not paraded before the sergeant until 12:02 p.m. that day. At 12:14 p.m., PC Johnson did a frisk search of him. At 12:28 p.m., he was moved to a cell. Then, at 12:36 p.m., PC Johnson assisted with the parade of Mr. Jeremiah and in a search that was done on him.

Between 12:58 and 1:35 p.m., PC Johnson testified he was involved in assisting in other searches, going back to the police car, gathering his belongings, and making his way to the investigative bureau to speak to investigators. When asked in court his state of mind regarding timing of implementing rights to counsel, he said as soon as he could get access to the phone, he would give that opportunity.

At 1:35 p.m., PC Johnson contacted a lawyer for Mr. Dass. PC Johnson did not know why there was a delay in parading Mr. Dass, although only one person at a time can be paraded at 14 Division.

At 2:44 p.m., PC Johnson made a second lawyer phone call to Ms. Lichtman as counsel for Mr. Jeremiah. He was preparing his notes and preparing the case between 1:35 and 2:44 p.m. that day.

Overall, the Court had notable concerns about the testimony of PC Johnson in the areas where he contracted himself. He did so over and over again and on material points. He was argumentative, he did not seem to be mindful of his obligations in providing Charter rights to Mr. Dass, a person he detained for a very long time without providing Charter rights. The Court found his evidence to be problematic.

The Court also found his evidence to not be reliable. He did admit various aspects where he did not provide Charter rights. The Court will carefully consider this evidence in the findings of fact below in the reasons. The Court is not comfortable relying upon his evidence to make findings of fact where that evidence is not supported by other evidence which is credible and reliable in this trial.

Sergeant Christopher Ferko.

Sergeant Ferko was acting in the capacity of staff sergeant at the police station on January 13^th, 2022. He provided evidence that was not challenged with respect to timing. He was told at 10:32 a.m. that there were four males to parade in the booking process. Prior to bringing prisoners in for booking, officers need to put information in the computer, to be visible on the computer for the booker. A phone in the booking hall is available for consultation with counsel by detainees, but it could not be used due to privacy challenges while booking is ongoing. His evidence is noted above in the uncontradicted evidence section of the reasons. The evidence of this officer was not challenged, it was consistent with other evidence from witnesses, and the Court finds it was credible and reliable.

I’m going to take a break at this point for a few minutes before I continue with the next portion of my reasons, starting with the evidence of Mr. Jeremiah.

Counsel, I need to address some other speak to matters. I don’t know if you want to speak to your clients or not. I will be taking a twenty-minute recess. So, if you want to speak to your client on zoom before we recess? No? Do you want to speak to your client?

K. TINK: No.

THE COURT: So if you want to take Mr. Jeremiah down, I’m going to speak to some other cases then take a twenty-minute recess. Then if you can bring him back, okay.

... WHEREUPON SPEAKING TO OTHER MATTERS

R E C E S S

U P O N R E S U M I N G:

... WHEREUPON SPEAKING TO ANOTHER MATTER

... WAITING ON CLIENT

THE COURT: All right, I’m just continuing with my reasons.

Evidence of Joshua Jeremiah

Mr. Jeremiah testified only on issues related to the Charter blended voir dire and not on the ultimate issues. He is 29 years old having a date of birth of February 7^th, 1995.

In December of 2021, after his release from custody on December 2^nd or 3^rd, he lived at his mom’s house for a couple of days. Then he testified he was living at 19 Bathurst with his friend Mark Williams. He did not pay rent, he just helped with groceries and kept the place clean. He was not to tell anyone he was living there and he was sleeping in the living room or den area on a blowup bed. He testified he had personal belongings and clothing in the unit, in a closet near the entry, and some of it was on the side of the bed in the corner. He did not bring all of his belongings as there was not sufficient space. He went back and forth to his mother’s place to bring new clothing.

In cross-examination, he indicated he did not have a key to the unit or to the building. Each time he entered he needed to buzz Mark Williams. He could let him in remotely from his cellphone, however, if he was not at home and the door to the unit was locked, he was not able to enter the unit as he had no key. Sometimes, if Mr. Williams was leaving the unit, he would give Mr. Jeremiah the key and the fob. He would then take it back.

On January 12^th, Mr. Jeremiah was out. When he went to the unit, Michael and Eric Poku were already inside the unit. He testified he did not remember when he returned to the unit on January 13^th. He did not remember if he slept in the unit on January 11. He did not sleep at this unit every night. He would also stay over at other people’s places. He sees his friends often and has sleepovers with them. It varied. Sometimes he was out three or four nights, and other times he would stay for a week. He did not remember what he did in the week leading up to January 13.

He testified that after the police entered the unit, they had their tasers drawn. He did not feel that he was free to leave the unit at any point. Officers were close to him and ordered him around a couple of times. When the police were in the unit, Mark Williams was on his cellphone, speaking with his lawyer.

He testified in cross-examination that he had asked the officers about calling his lawyer but he did not remember everything. Mr. Jeremiah did not want to speak, his lawyer always tells him not to say anything, and he was thinking about that all the time.

During cross-examination, the Crown sought to ask him about the contents of the bag he had brought with him to the unit. There were objections and the Crown sought a recess. The Crown then returned with a motion to reopen the Crown’s case, which was ultimately denied by the Court. The Crown sought to cross-examine Mr. Jeremiah extensively arising from his criminal record and his prior experience with the police. The Crown asked him, and he admitted, he knew that the police had to tell him about his right to counsel, that the police had to give him his rights. He knew he had the right to remain silent and he agreed that he remained silent most of the time. He told the police he wanted to speak to his lawyer. After the police entered, he testified that he asked the police four times, what did we do? He wanted to know what was going on. When he was asked where the girl they were with was, he whispered, washroom.

At one point he suggested the police talk to the owner of the condo, referring to Mr. Williams. He had a phone that day, even though the police asked if he had a phone, he said no, he did not want the police to take his phone. He did not ask to use his phone. He maintained that he was not relaxed after the police were in the unit for a while. He was trying to tell the police that the situation with the girl was a misunderstanding and he was trying to get everyone to feel better and be calm. He was hoping it was all good, but honestly he did not know. He did not know why the police came in the unit the way they did.

Despite how he might have appeared, he maintained in cross-examination that he was not happy and relaxed. He was annoyed with the police. He testified that the two Poku brothers wanted to talk to Sergeant Mcnab and provide him with details. Mr. Jeremiah testified he was frustrated with the whole situation, he was tired and really drunk. At one point he interjected into the conversation between Sergeant Mcnab and the two Poku brothers. He acknowledged it might have been a possibility that he wanted them to stop talking. Mr. Jeremiah told the police to get our IDs, that is fine, then go on your way.

Mr. Jeremiah was cross-examined about the laundry bag he brought into the unit, which contained two deodorants, a Speed Stick, and a cologne. It also contained a full-size toothpaste, toothbrush, full size Vaseline, hand soap, hand wash, cocoa butter body wash, shampoo, and hair brush, and hair comb. He maintained that he did not pack that to go to Mark Williams’ unit, but rather to have with him to party. He testified that he normally brings these items to sleepover at a friend’s house. He testified he would have all of these things to sleep for even one night away.

The evidence of Mr. Jeremiah was generally consistent and not contradicted. The only portion of his evidence that was challenged to any particular extent related to his testimony that he was living at the unit occupied by Mark Williams and the nature of the toiletries he carried with him in his large bag. The Court found his evidence to be credible and the evidence regarding staying at the unit of Mr. Williams was not refuted. The Court found his evidence to be largely credible.

The Evidence of Anthony Dass.

Mr. Dass testified on the blended Charter voir dire. He testified that he, from the moment that PC Johnson grabbed his arm and took him out of the unit to the hallway, was not free to leave. During the whole hour, from 8:06 to 9:06 a.m., when Mr. Jeremiah was arrested, he did not want to be in the hallway. PC Johnson was standing close to him and asking him questions. He did not think he was free to do anything. He did not want to stay with PC Johnson. If he had a choice, he testified he would have gone back into the unit, grabbed his stuff, including the satchel, and left. He was on probation at the time. He testified he didn’t know why he was being detained, he didn’t know the offence under investigation when he was detained, he just thought it was in relation to a female.

Throughout that hour he was not advised or provided his rights to counsel, nor was he advised of his right to remain silent. He stated that he would have wanted to speak to a lawyer. When he was told his rights to counsel, he immediately said yes. During this time he wanted to remain silent, however he testified that PC Johnson threatened him, that he would be charged with an offence, the cells were empty. Mr. Dass did not want to go to jail.

The Court found the evidence of Mr. Dass, that he felt he was going to be assaulted by PC Johnson, to be lacking in credibility. He based this feeling, based upon PC Johnson touching him with two fingers, an action that he referred to as grabbing his shirt. The evidence on the body worn camera did not corroborate this portion of the events given by Mr. Dass.

At one point Mr. Dass testified that PC Johnson stated something that made him believe he was going to be charged with a breach.

Mr. Dass was not provided an opportunity to consult with counsel until 1:35 p.m., several hours after he was initially detained and questioned.

During the muted conversation that he had with the officer, which was not recorded on the body worn camera, Mr. Dass testified that PC Johnson was not speaking to him about better life choices, rather, he was threatening to charge Mr. Dass with breach, asking him who he came with to the unit, what car he arrived in, and he kept asking him questions. This is contrary to the evidence of PC Johnson.

Mr. Dass also testified the satchel seized by Sergeant Mcnab as search incident to the arrest of Mr. Jeremiah was a satchel that belonged to Mr. Dass. It was zipped closed and he indicated that it was never his intention to leave the satchel behind. He also stated that at the time of the arrest of Mr. Jeremiah in the unit, had Mr. Dass been in the unit, he would have advised Sergeant Mcnab that the satchel belonged to him and that he did not consent to a search of the satchel by Sergeant Mcnab.

In cross-examination, Mr. Dass testified that when he laughed it was a nervous laugh, just trying to go along with the process, to get it over with. He could not hear people in the unit laughing. He testified that he went to the unit with Mr. Jeremiah at 7:42 a.m. with a young woman who was his age or a year younger. He was 22 years old at the time. He agreed she was intoxicated and unsteady on her feet. He testified he just wanted to go inside the unit and go to sleep. He stated that they were all pretty intoxicated. He had no concern for her. He disagreed that he took advantage of her. He agreed that he did expose her genitals in a public place, which this Court would note was consistent with the video clip from the condo building elevator. He disagreed that he took her out of the car. They had been partying after the bars closed.

Mr. Dass did not want to tell PC Johnson anything. He testified he told him who he came with, although it is quite unclear on the evidence in this trial if he told the officer at that point that he had come to the unit with Mr. Jeremiah. Then Mr. Dass said he did not want to get involved or speak anymore. PC Johnson kept asking him questions. He wanted to remain silent. He agreed that he knows that he has a right to speak to a lawyer. He testified that PC Johnson referred to charging him with breach or obstruct and referred to giving him an adult time out, referring to empty cells in Toronto South.

The evidence of Mr. Dass was largely consistent with the other evidence in this trial, with the exception of his evidence regarding touching by PC Johnson. Whether the discussion and questioning while the body worn camera was muted, or later in the exchange with PC Johnson, it is clear that both he and PC Johnson testified that such issues were discussed and stated by PC Johnson. By and large the Court accepts his evidence with the exception of the evidence regarding assault and fear of assault by PC Johnson.

Findings of Fact

The Court makes the following findings of fact arising from the consideration of the evidence of the various witnesses set out above in this blended Charter voir dire. The Court will note, however, that not all findings of fact are noted below. Some additional findings of fact not listed below flow from the consideration of the evidence of witnesses accepted by the Court after assessments of their credibility and reliability.

Officers entered the unit for this investigation based upon exigent circumstances arising from the two radio calls regarding the young female and her condition at the time after having been in the company of two men. The exigent circumstances were not challenged by the defence. However, as time went on, the reason for the exigent circumstances entry, and the continued detention, slipped away. Officers continued to maintain their presence without complying with Charter obligations, as will be noted below in the consideration of the Charter arguments.

The Court finds that the officers entered the unit at 8:06 a.m. Mr. Jeremiah and Mr. Dass were in the unit, together with four other people. Those people included the tenant, Mr. Williams, a woman who was in the bedroom with Mr. Williams, and two other males who were previously charged in this information, Michael Poku and Eric Poku.

At the time of the entry, Mr. Jeremiah was located between the coffee table and the TV, close to the balcony door. Mr. Dass was located close to the sofa and coffee table and was seen removing a satchel as the police entered, and putting it down. This satchel was later found on the sofa. It appears to be the same satchel that he was wearing on the video of the building elevator, just prior to entering the unit with Mr. Jeremiah and the young female. This is the satchel which Sergeant Mcnab indicated he seized in a search incident to the arrest of Mr. Jeremiah from the sofa, on the end closest to the kitchen, across from the coffee table.

The young female was removed by PC Kenny from the unit after being found in the bathroom of the unit with Mr. Eric Poku or Michael Poku. She was taken down to the lobby of the building and later, by ambulance, to the hospital. She made no statements or allegations of any criminal offences having been committed in relation to herself.

As of 8:30 or 8:33 a.m., Sergeant Mcnab was aware that the complainant had not indicated that she had been the victim of any criminal offences, and he told the occupants in the condominium unit of this situation. He said we are going to be leaving, he said they are all good, everyone in the unit is good. However, the police remained in the unit. All of the four males, including Mr. Jeremiah and Mr. Dass, were detained throughout the period after the police entered the unit at 8:06 a.m.

Neither Mr. Jeremiah nor Mr. Dass were told they were being held in an investigative detention. They were not told the reason for the detention. They were simply told the police were there in relation to the young female and concerns about her. They were not given the informational component of rights to counsel. They were not given any opportunity to consult with counsel, notwithstanding that Mr. Williams was walking around the unit, talking with his lawyer, getting advice, over an extended period of time, in front of everyone.

Another party, one of the Poku brothers, also used his phone to call and speak to someone for a period of time.

Sergeant Mcnab testified that Mr. Jeremiah and Mr. Dass were not permitted an opportunity to consult with counsel arising from his concerns regarding potential destruction of evidence and related issues that might arise from a phone call by them.

The Court would note that he had no such concerns regarding Mr. Williams making phone calls, nor with respect to Mr. Poku making phone calls either. None of the police officers on site advised Mr. Jeremiah and Mr. Dass that they had the right to remain silent. None of the police officers on site advised Mr. Jeremiah and Mr. Dass of the caution. Sergeant Mcnab took no steps to ascertain if the officers on scene, for whom he was in a supervisory role, had complied with the Charter obligations they were required to address for Mr. Jeremiah and Mr. Dass in detention.

Sergeant Mcnab acted in this fashion while continuing to question Mr. Jeremiah and Mr. Dass persistently. This also took place while PC Johnson continued to question Mr. Dass outside of the unit, in the hallway, in a lengthy detention. PC Johnson also threatened Mr. Dass in terms of charging him with breach or obstruct police as a result of Mr. Dass choosing to not say responses to various questions being put to him.

As will be noted below in the discussion of the Charter issues, the police officers on scene, particularly PC Johnson and Sergeant Mcnab, were prone to acting in an egregious manner, in flagrant disregard for their obligations to comply with the Charter during the detention of both defendants.

Charter Issues

Section 9: Arbitrary Detention

Both parties have argued a breach pursuant to s.9 of the Charter. The parties essentially do not argue that there was an arbitrary detention when officers entered the unit based upon the exigent circumstances of investigating the location and condition of a young female who entered the unit in the context of the 911 calls and the information provided in those calls. However, after the exigent circumstances situation came to an end, after the female had been removed from the unit, the applicants essentially argue that the continued detention of their clients was arbitrary and in breach of the Charter.

The Court considers the relevant case law with respect to detention, including R. v. Suberu, 2009 SCC 33, 2009 S.C.C. 33. If the reasons are ordered, the Court will provide the citation to the transcriptionist. R. v. Le, 2019 SCC 34, 2019 S.C.C. 34. Both of which are Supreme Court of Canada judgments. And R. v. Barclay, 2018 ONCA 114.

There is no doubt that both Mr. Jeremiah and Mr. Dass were detained throughout the period the police were in the unit, from 8:06 a.m. to and including the time that Mr. Jeremiah was arrested, approximately one hour later, at 9:06 a.m. The Court finds that both defendants were physically and psychologically detained, considering the evidence of all the officers and both Mr. Jeremiah and Mr. Dass. The officers required both defendants to remain, directed them as to where to go, and controlled their movements throughout the time. The Court finds that both were detained physically and psychologically.

In R. v. Le, Supreme Court of Canada considered the law with respect to investigative detention. The police officers were permitted to detain both defendants in this case for investigative purposes where they had reasonable grounds to suspect there was a clear nexus between the detainees and a recent or still unfolding crime. It is clear that the police were permitted to detain the parties while they investigated the presence of the female in the unit and whether an offence had been committed.

The Crown position is that essentially the police were permitted to detain the defendants throughout the hour while they investigated whether the defendants had any outstanding charges. The Crown’s submission is that the detention, after 8:33 a.m., when Sergeant Mcnab effectively said that the parties are good, that the police were going to leave, after the female had not made any allegations, was not for the purpose of investigating an offence regarding the female. Further, the evidence supports the Court findings of fact that the defendants were not detained after 8:33 a.m. for that purpose, but rather for other purposes.

While it might have been appropriate to investigate the parties for outstanding charges, a great deal of this information was obtained by the constables shortly after their arrival on scene. Although a further phone call had to be made to get more information regarding the notations on CPIC for Mr. Jeremiah, no officer pursued that until quite a bit of time later. In the meantime, Sergeant Mcnab continued the detention of both defendants as the supervisor on scene, while he spent an extended period of time investigating an outstanding charge related to Mr. Williams. That certainly had nothing to do with Mr. Dass and nothing to do with Mr. Jeremiah. It was an instance of arbitrary detention of the two defendants while the police were investigating sundry details pertaining to other people.

During the period of the detention, it is clear that no officer advised either defendant, as to the reason for their investigative detention. The Court infers that may have been because there was no particular reason to detain Mr. Jeremiah and Mr. Dass. The earlier reason for detention, pursuant to exigent circumstances, clearly came to an end shortly after 8:30 a.m. when Sergeant Mcnab stated that the police were about to go and that the defendants were good. The officers did not articulate to any detainee a continued reason for detention, as there was no clear reason for the detention. The officers were waiting for direction from the sergeant and they all just stood by, seeking information. During the time there was no investigation ongoing with respect to the original suspicion relating to the female. There was no looking for evidence even in plain view. The only investigation that was ongoing related to the continuing questioning of Mr. Jeremiah and Mr. Dass which also is referred to below. The continued investigative detention of both defendants was not reasonably necessary in light of all of the circumstances. This was an arbitrary detention of the defendants after 8:30 a.m. There is a breach of s.9 of the Charter as it relates to both defendants.

The Court finds that there was no racial profiling in this case. The Court notes that both Eric Poku and Michael Poku, and Mr. Williams, were all persons of colour. They were all treated with greater favour than Mr. Jeremiah, who is a person of colour, and Mr. Dass, who appeared to be a person of mixed race. For example, Mr. Williams was excluded from consideration in the investigation related to the female very early in the process, after almost no information had been obtained. He was in the least jeopardy of all the male detainees in the unit and yet, he was permitted to make telephone calls, including to counsel.

Similarly, Eric or Michael Poku were permitted to make a phone call in the unit, even though Sergeant Mcnab indicated, that as it related to Charter applications by Mr. Jeremiah and Mr. Dass, they would not have been permitted to make any phone call. Overall, there was no racial profiling in this case.

Section 8

There was a preliminary issue with respect to s.8 generally as it relates to the broad argument made by the applicants, particularly with respect to Mr. Jeremiah. Mr. Jeremiah gave evidence that he was living in the condo unit as an agreed arrangement with the tenant, Mr. Williams.

The Court has found that evidence to be credible and it has not been contradicted. The Court considers R. v. Le and other cases related to standing. The Court finds that he was a short term occupant or guest of the condo, over the period of weeks after he left his mother’s residence, to an including the day of the allegations. Even though he may have stayed at other places from time to time, he had an ongoing arrangement to stay at this condo unit with Mr. Williams. Accordingly, the Court finds that he had standing with respect to s.8 of the Charter as it applies to the residential premises where the two searches were conducted in this case.

A - Search Incident to Arrest

The Court considers R. v. Stairs, 2022 SCC 11, prior to that, R. v. Stillman, 1997 CanLII 384 (SCC), 1997 1 S.C.R. 607, R. v. Caslake, 1998 CanLII 838 (SCC), 1998 1 S.C.R. 51, R. v. Fearon, 2014 SCC 77, R. v. Saeed, 2016 SCC 24, and, most recently, R. v. Sureskumar, 2023 ONCA 705, at paragraphs 9 to 12.

The search in this case took place in residential premises where there is a greater privacy interest. In this case, the arrest of Mr. Jeremiah, was lawful. The Court considers whether the search was incident to that arrest. Counsel for Mr. Jeremiah argues that the search of the unit was not subjectively connected to the charges for which he was arrested. The Court finds favour with this argument.

Secondly, the Court considers the location of the areas searched incident to arrest. In that regard, the Court considers whether the area searched was within Mr. Jeremiah’s physical control at the time of the arrest. In that regard, the Court considers the position of Mr. Jeremiah at the time of the police entry, not an hour later, after he had been wandering to different parts of the unit.

At the time of police entry, Mr. Jeremiah was close to the balcony, at that end of the sofa. The satchel, on the opposite end of the sofa, was not within the area of his physical control. The satchel was not in the possession of Mr. Jeremiah. See Stairs at paragraphs 34 and 82.

The Court considers whether the search would further the objective of police and public safety, including the safety of the accused. The Court considers that at this time, Mr. Jeremiah was in police control and custody. He did not have access to the satchel, nor is there evidence that other accused persons had access to that area. Sergeant Mcnab testified that the search was incidental to his arrest for the subject charges of assault and dangerous driving offences, as Sergeant Mcnab was looking for cellphones which might have GPS data relative to location, identifications such as what might be in a wallet or satchel. He also stated that he was gathering the property of Mr. Jeremiah to go with him to the police station. There is no evidence that the items in that area belonged to Mr. Jeremiah. There was no evidence that Mr. Jeremiah had been in the area where the satchel was located. There is no evidence from Sergeant Mcnab, or any officer, that there were concerns related to police and public safety, including the safety of the accused, related to the purpose of the search of the satchel.

Sergeant Mcnab testified he was looking for the wallet for Mr. Jeremiah. An issue in this case is whether, mindful of the heightened privacy interests in this residential condo unit, the officer suspected there was a safety risk and the search was conducted in a reasonable manner. There was no articulation of any safety concerns. In fact, it is apparent, based upon the evidence of Sergeant Mcnab, that he did not expect to find a gun in the satchel when he looked for the wallet of Mr. Jeremiah.

The satchel was located in an area outside the control of Mr. Jeremiah, as one compares his location at the time of police entry. His location later in the unit, as he was directed to move around, and he did move around, is not relevant to this determination. It was a small unit and there were many people in it. The surrounding area of Mr. Jeremiah relevant to this consideration is to be defined at the time prior to police entry. He was not located near the satchel.

Mr. Dass was located near the satchel and Mr. Dass was actually seen by a police officer in the unit to be in possession of the satchel as the police entered the unit and he removed it from his body and put it down.

Employing a contextual and purposive approach, the Court finds that the satchel was outside the surrounding area within which Mr. Jeremiah had control. He was also not the primary occupant of the condo, but rather someone who stayed there based on the consent of the tenant, Mr. Williams. He had brought property with him, including clothes and toiletries, but it is clear that he carried and moved his belongings from place to place in the large backpack.

Mr. Jeremiah was located opposite the coffee table but close to the balcony door. This put his position at the far end of the sofa and coffee table which contained the satchel at the opposite end. Also, as noted by an officer, it was Mr. Dass who was located proximate to the location of the satchel, and he was the one who had been observed removing it.

The Court would note that Mr. Dass was videotaped on the surveillance video in the building elevator, at which time he was wearing the satchel containing the firearm. Mr. Jeremiah was shown wearing a much bigger type of backpack and not possessing a satchel. No officer saw Mr. Jeremiah with a satchel when they entered the unit. No one saw Mr. Jeremiah anywhere with a satchel, nor in the area proximate to the area where the satchel was found.

The Court has considered the issue of standing. As noted in the reasons, the Court has found that Mr. Jeremiah had standing based on the nature of his occupancy permitted by the tenant, Mr. Williams, or as a regular guest or visitor after he stopped living at his mother’s residence.

The Court is aware that he also stayed at other places from time to time but had this ongoing arrangement with Mr. Williams. He also left his property, including clothing, at the condo unit of Mr. Williams.

As it related to Mr. Dass, counsel argued that, based upon the Crown’s theory that Mr. Dass was the owner of the subject firearm in the satchel seized in the search incident to arrest, he had standing to challenge the search incident to arrest that was argued in this trial.

The Court finds that Mr. Dass had standing, as a result, to challenge that search. The Court finds that the search and seizure of the satchel containing the firearm was done in breach of s.8 of the Charter.

B – Search Warrant

Counsel for Mr. Jeremiah argued that there was a breach of s.8 of the Charter arising from the ITO for the search warrant. Counsel for Mr. Dass had not made any such argument in relation to her client.

Firstly, the Court has found, as stated above, that Mr. Jeremiah has standing to make this argument, given that he had an arrangement to stay at the premises. The Court has accepted the testimony of Mr. Jeremiah in that regard. The application, however, is problematic in that it was not brought at a Garofoli Application, and the Crown responded to the application as if it was not a Garofoli Application. Clearly, the arguments of counsel for Mr. Jeremiah were premised on a Garofoli Application that has not been presented or argued as such. The Court is very troubled by the way in which counsel for the applicant, Mr. Jeremiah, sought to raise and make this argument. As noted above, in the various judicial pretrials, there was no mention that the defence would raise a s.8 Charter argument related to the search warrant. In fact, the defence indicated that it would not be challenging the search warrant in the judicial pretrial proceedings. As a result, the trial was scheduled without any pretrial motion, without any Garofoli Application, without any application to cross-examine the affiant.

Instead, counsel for Mr. Jeremiah prepared and filed a Charter motion just prior to the start of the four or five day trial and made no mention of this argument during the evidence in the blended Charter voir dire for the trial. Rather, counsel for Mr. Jeremiah sought to raise and argue this at the very late stage following all of the evidence in the blended Charter voir dire, and at the final stage of submissions. At that point, neither the search warrant nor the ITO had even been admitted in evidence. After the initial opposition of the Crown to even filing those materials for the argument, the Crown ultimately did not oppose the materials being put into evidence.

However, the procedure engaged in by counsel for Mr. Jeremiah created a huge problem for the Court in the consideration of this argument, as noted below. The Court would state that a search warrant is presumptively valid. The fact that the affiant relied, in part, on the discovery and seizure of a firearm, in what was a search incident to arrest, now determined to be contrary to s.8, is not a determinative factor in what the applicant submits should result in an automatic conclusion that the search warrant should not have been issued. In this case, the Crown relies on a submission that the affiant did not know the circumstances of the search incident to arrest, and essentially that it would be considered contrary to s.8 of the Charter. There is no evidence before the Court on that regard.

The record is silent, no witnesses were questioned in relation to this aspect of the argument. The record is silent as to whether the affiant was aware or unaware of the circumstances of the breach of s.8 in relation to a search incident to arrest of Mr. Jeremiah resulting in the discovery of the first firearm. The onus is on the applicant seeking to show a s.8 breach of the Charter arising from the issuance of the search warrant. The way in which this issue was argued, and the lack of evidence put before the Court, leaves the Court in a void, unable to make a finding on this issue.

The applicant, Mr. Jeremiah, has failed to establish that the search warrant should not have issued and that the search pursuant to the execution of the search warrant constituted a beach of s.8 of the Charter. The Court finds that the applicant has not met its onus of showing a breach of s.8 of the Charter in relation to the issuance and execution of the search warrant.

Section 10(a)

The applicants argue that the police officers failed to advise Mr. Jeremiah and Mr. Dass, in a timely fashion, of the reasons for their detention. After entering with tasers and startling the occupants, it took a few minutes before the officers told them the reasons for their initial detention.

The Court finds, based on the uncontradicted evidence in this case, that officers initially advised the applicants of the reasons for their detention arising from the condition and circumstances of the young female that had been in the unit. However, when that ceased to be a reason for their detention, at approximately or just after 8:30 a.m., when Sergeant Mcnab told the detainees they were good, that the police were leaving, the reason for the detention changed. The applicants were told nothing about the reason for the continued detention. There is no doubt, and the officers agreed in their testimony, that they were obligated to advise the applicants promptly of the reasons for their detention which, in this case, was a continued detention for a different reason. The officers were obligated to advise in clear and simple language the reasons for their continued detention and they failed to do so in this case.

The Court has opined that the reason for this failure may arise from the fact that the officers who testified seemed to be unaware of the reason for their continued detention. They were essentially relying upon Sergeant Mcnab to tell them what to do next. During this period of time, the officers continued to ask the detainees questions. Mr. Jeremiah and Mr. Dass would not have understood the jeopardy they were in, arising from the failure to advise them of the reason for continued detention. The Court considers R. v. Latimer, 1997 CanLII 405 (SCC), 1997 S.C.J. No. 11, at paragraph 28, and R. v. Mann, 2004 SCC 52. The Court finds that the failure of the police to advise both of the applicants of the reason for their continued detention constitutes a breach of s.10(a) of the Charter.

Section 10(b)

Neither Mr. Dass nor Mr. Jeremiah were advised of their rights to counsel from 8:06 a.m., when their detention began, until 9:06 a.m., when Mr. Jeremiah was arrested and later advised of his rights to counsel. Mr. Dass was not advised of his rights to counsel until sometime after 9:06 a.m., at 9:13 a.m., when he was arrested as one of the four occupants for the possession of the firearm discovered in the satchel.

The Court disagrees with counsel for the respondent that there were exigent circumstances which justified the delay in providing rights to counsel. While the delay could be justified for a few minutes, the delay of one hour was excessive, or at least the delay after 8:30 for continued detention was excessive, and not justified at all in the circumstances.

The Court agrees with the submissions of counsel for the applicants that this violation was exacerbated by the continuing questions by the constables of both detainees, and then Sergeant Mcnab, when he arrived in their continued state of not having been advised of their rights to counsel. There was a very clear breach of s.10(b) of the Charter, see R. v. Suberu, 2009 SCC 33.

Counsel for Mr. Dass also argues that there was a breach of s.10(b) with respect to the implementation duties of rights to counsel. At 9:15 a.m., Mr. Dass indicated that he wished to speak to counsel and he provided the name of the lawyer to PC Johnson. Although he arrived at the police station shortly after 10:00 a.m., he was not provided the opportunity to speak to counsel until 1:35 p.m. The Court agrees with counsel for Mr. Dass that this was another instance of police officers disregarding his Charter rights and, in particular, his right to retain and instruct counsel without delay. Throughout the time that Mr. Dass was detained by PC Johnson, and PC Johnson failed to advise him of the reason for his continued detention, and failed to advise him of the informational component of right to counsel, and failed to provide an opportunity to consult with counsel, while also failing to advise of his right to remain silent and provide a caution, he persistently asked Mr. Dass questions about the investigation. He also threatened to charge Mr. Dass with breach or obstruct police, arising from Mr. Dass’ decision to not answer some of the questions. It made the Charter violations even more egregious.

The Court relies on the longstanding line of appellate cases, including R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, R. v. Suberu, 2009 SCC 33, R. v. Rover, 2018 ONCA 745, R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, R. v. TGH, 2014 ONCA 460, and R. v. Whitaker, 2024 ONCA 182. It is essential that rights to counsel be provided to a detainee without delay. A detainee needs legal advice promptly in order to make decisions as to how to respond or act in terms of questioning. There was also a breach of s.10(b) regarding implementation duties for Mr. Dass and his opportunity to consult with counsel by having a telephone call.

Counsel for Mr. Jeremiah has not made a similar argument.

Section 7 - Mr. Dass.

The applicant, Dass, has argued that there was a breach of his s.7 right to life, liberty, and security of the person. This arose from the actions of PC Johnson repeatedly threatening Mr. Dass with charging him with criminal charges, such as a breach or obstruct police, if he did not answer the questions of PC Johnson. It was clear that Mr. Dass indicated by his actions and words his wish to remain silent, a right which he had. Nonetheless, it is clear that PC Johnson used what the Court agrees were threats, to try and get Mr. Dass to provide information.

The Court agrees with the applicant that this placed Mr. Dass in the untenable position of choosing between his liberty and his right to remain silent. It is clear that PC Johnson was using these tactics as a means to try to get Mr. Dass to provide information, a tactic that, in the end, was relatively unsuccessful.

Overall, the Court finds that the conduct of PC Johnson in dealing with Mr. Dass, as noted above, constituted a breach of Mr. Dass’ s.7 Charter rights.

Section 24(2) of the Charter

The Court must now consider the provisions of s.24(2) of the Charter. Counsel for Mr. Jeremiah and Mr. Dass have argued that the admission of evidence would be brought into disrepute if the firearm evidence seized in this trial were admitted. The Court has considered the seminal case of R. v. Grant, 2009 SCC 32.

One of the issues the Court will need to consider in this analysis is whether there is a causal connection between the breaches and the evidence sought to be excluded. While that is not strictly required, it is a factor for the Court to consider in the analysis. There is a direct causal connection related to the seizure of the firearm during the search incident to arrest sought to be admitted in evidence in the s.8 breach.

The Court would make an important observation at this point in relation to the other Charter breaches. While there is not a direct causal connection, per se, between the breaches of sections 9, 10(a), 10(b), and 7, the Court finds that the overall conduct of the police in their investigation was a wilful and flagrant breach of many of the Charter protected rights of Mr. Jeremiah and Mr. Dass. The breaches were connected and intertwined. That context is significant in the Court’s analysis of s.24(2).

In the first branch, the Court considers the seriousness of the Charter infringing state conduct. The applicants argue that the admission of evidence may send the message that the justice system condones serious state misconduct. The Court considers the cumulative nature of the Charter breaches in this case. The Court has found a breach of s.9, arising from the failure of all officers to advise the applicants of the reason for their continued detention after 8:30 a.m., when they were advised they were good to go, in relation to the prior exigent circumstances. This was compounded by the failure, throughout the detention, over a one-hour period, of all police officers dealing with Mr. Jeremiah and Mr. Dass, to be advised as to the rights to counsel.

It was further compounded by the failure to permit them to speak with counsel. While the police constables testified they did not address their minds to this obligation, and, as well, the obligation to advise them of the reason for detention, it is clear that their supervising officer, Sergeant Mcnab, was of the firm view they would not be entitled to speak to counsel. He would have prevented Mr. Jeremiah and Mr. Dass from speaking with counsel to get advice.

While Sergeant Mcnab testified that this was based on concerns arising from being unable to be provided privacy, the Court is mindful of the situation that both Mr. Williams and Mr. Poku were on their phones, having conversations with people. In particular, Mr. Williams was speaking to his lawyer, over an extended period of time, when, as compared to the other males in the apartment, he was in the least amount of jeopardy as it related to the investigation of the female. Mr. Poku also spoke to someone on the phone and it is not clear who that person was, based on the evidence in this case. Yet, Mr. Jeremiah and Mr. Dass would not have been allowed to speak to counsel.

The Charter breaches are further compounded by the police failure to advise Mr. Jeremiah and Mr. Dass of their right to remain silent. They were also not given a caution. And, in that context, the police constables and Sergeant Mcnab continued to persistently ask Mr. Jeremiah and Mr. Dass, and the other detainees, extensive questions that were potentially incriminating. Mr. Jeremiah was ultimately arrested for the firearms offence. While there is no Charter breach in relation to the arrest, the Court has found that there was a s.8 Charter breach in relation to the search incident to arrest of the satchel which turned out to contain a firearm.

The Court has also found a s.7 Charter breach in relation to Mr. Dass and the way in which PC Johnson questioned him, threatening to charge him with criminal offences, in light of his failure to answer questions, for exercising his right to remain silent.

Throughout, the overall conduct of all the police officers constituted, in a cumulative way, a flagrant disregard for the Charter rights of Mr. Jeremiah and Mr. Dass.

The Charter breaches in this case were very serious, the Court finds. The Court does not accept as reliable to explanations of the various constables, that they just never thought about these Charter rights in the extended period of time that they detained Mr. Jeremiah and Mr. Dass in the unit prior to 9:06 a.m.

The Court finds that the behaviour of the officers was wilful, and intentional, and done with a focus to get information, and not discourage that process by advising of Charter rights. The breaches were not technical oversights.

Secondly, the Court considers the impact of the breaches on the applicants. While the impact of the Charter breaches might have been less if the police only found a breach in relation to one of the Charter rights, in this case, the police breached almost every Charter right in play in this case.

As it relates to s.8 and the search incident to arrest, the Court rejects the argument of the respondent that there was essentially a genuine effort to gather Mr. Jeremiah’s property to bring with him to the station. The testimony of Sergeant Mcnab makes it clear that he was intending to seize items that were potentially incriminating, such as cellphones and whatever was in the satchel on the sofa. This was in the face of there being no evidence that those items were the property of Mr. Jeremiah. The breaches of s.10(a) and s.10(b), together with s.9 and s.7, as it relates to Mr. Dass, had a very serious impact on the applicants, as they occurred alongside continued and persistent questioning by the officers in their desire to incriminate the detainees.

For Mr. Dass, there was also the threat of charging him criminally, or giving him an adult time out by arresting him and putting him in custody for some period of time.

These breaches were not trivial or technical breaches, they struck at the heart of the purpose for the Charter rights. The Court is mindful of the fact that both Mr. Jeremiah and Mr. Dass did not say a lot that was incriminating, although the Court notes that there were no charges for the investigation relating to the female, there were only charges relating to the firearms, both of which were the subject of the s.8 Charter arguments. However, the overall conduct of the police officers had a significant impact on the applicants during their extended time in custody, including the hours that followed their arrest before they were provided an opportunity to consult with counsel.

As it relates to the third branch, of society’s interest in adjudicating the case on its merits, the Court acknowledges that society has an interest in the adjudication of this trial on its merits and that exclusion of critical firearm evidence would undermine that evidence. The Court also acknowledges the problem in Toronto with firearms and firearms related offences, which is not only in the material put before the Court by the Crown, respondent, but also a situation well known to this Court, having presided in this jurisdiction for a lengthy period of time. The Court is aware that this evidence is real and reliable. This prong favours the admission of the firearm evidence.

However, the Court has found that the conduct of the police in this case was egregious. While society would be denied an adjudication of the trial related to this firearm on its merits, the Court cannot ignore the compelling nature of the first two branches of the test. In all of the circumstances, the Court finds that the admission of the firearm evidence would bring the administration of justice into disrepute, and the Court excludes the firearm evidence.

Now, that is the end of the Court’s reasons on the Charter issues in the Charter blended voir dire.

... MATTER CONTINUES

M A T T E R A D J O U R N E D

[june 28, 2024 transcript]

Form 3

ELECTRONIC CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))

Evidence Act

Linda Azuma, Authorized Court Transcriptionist

(Name of Authorized Person)

certify that this document is a true and accurate transcript of the recording of

Regina v. Dass and Jeremiah

in the

Ontario Court of Justice

(Name of Case)

(Name of Court)

held at

10 Armoury Street , Toronto, Ontario

(Court Address)

taken from Recording

4810_1003_20240628_092626__6_BROWNBE

, which has been certified in Form 1.

October 20, 2024

Linda Azuma

(Date)

(Electronic Signature of Authorized person)

3307292611

Authorized Court Transcriptionist Identification Number

Ontario, Canada

[july 10, 2024 transcript]

Form 3

ELECTRONIC CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))

Evidence Act

Linda Azuma, Authorized Court Transcriptionist

(Name of Authorized Person)

certify that this document is a true and accurate transcript of the recording of

Regina v. Dass and Jeremiah

in the

Ontario Court of Justice

(Name of Case)

(Name of Court)

held at

10 Armoury Street Toronto, Ontario

(Court Address)

taken from Recording

4810_1003_20240628_092626__6_BROWNBE

, which has been certified in Form 1.

October 10, 2024

Linda Azuma

(Date)

(Electronic Signature of Authorized person)

3307292611

Authorized Court Transcriptionist Identification Number

Ontario, Canada

His Majesty the King v. Anthony Dass and Joshua Jeremiah, 2024 ONCJ 676

Case Summary

R U L I N G

Uncontradicted Evidence

Consideration of evidence.

PC Sarah Kenny

PC Kyle Cole

Charter Rights

Officer Brandt Gordon

Charter Rights

Detective Dan Mcnab

Charter Issues

Evidence of PC Brandon Johnson

Sergeant Christopher Ferko.

Evidence of Joshua Jeremiah

The Evidence of Anthony Dass.

Findings of Fact

Charter Issues

Section 9: Arbitrary Detention

Section 8

A - Search Incident to Arrest

B – Search Warrant

Section 10(a)

Section 10(b)

Section 7 - Mr. Dass.

Section 24(2) of the Charter

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 6

Legal Tests 3