ONTARIO COURT OF JUSTICE

DATE: 2025-02-04
COURT FILE No.: Toronto 4810 998 23 10000899-00

Between

His Majesty the King
— and —
Omar Yaqubi

Before Justice Chapman
Heard on March 27, 28 and December 9, 10, 2024
Reasons for Judgment released on February 4, 2025

E. McNamara ....................................................................................... counsel for the Crown
J. Goldlist and K. Friesen .................................. counsel for the accused, Omar Yaqubi

Overview

[1] Mr. Yaqubi was with acquaintances in the Entertainment District of Toronto on January 21, 2023 when he was stopped by police, detained and searched. During this search a firearm was found in his cross-body satchel. As a result, he stands charged with various offences related to the possession of a prohibited firearm.

[2] At the outset of trial Counsel to Mr. Yaqubi brought two Charter applications seeking the following remedies:

1. A stay of proceedings pursuant to s. 24(1) of the Charter based on a breach of the section 7 right to make full answer and defence due to the loss of evidence; and,

2. The exclusion of evidence pursuant to s 24(2) of the Charter on the basis of alleged breaches of ss. 8, 9 and 10(b) of the Charter having regard to the circumstances of the Applicant’s detention and the subsequent search of his satchel.

[3] The Crown concedes breaches of sections 7 and 10(b). I entirely agree with these concessions. In addition, I find breaches of sections 8 and 9 of the Charter. It is therefore necessary for me to determine the full nature and extent of the Charter breaches in this case and what, if any, Charter remedies flow from them.

[4] I have concluded that the Charter breaches in this case are very serious and that the evidence obtained during the detention and search of the Applicant must be excluded pursuant to section 24(2) of the Charter. In the alternative, I would direct a stay of proceedings given the loss of evidence by police in this case, having regard to its impact on the right to make full answer and defence.

Background Facts

[5] On January 21, 2023, Officer Alain Arakaza was on patrol duty on King Street West near Portland Street in Toronto. He observed a small group of people interact with the bouncer at Ruby Soho, a club on the strip, and then walk away. The officer testified that shortly after the bouncer pulled him to the side to inform him that of the group of four (4), only the Applicant would not agree to be searched before entering the club. Officer Arakaza also testified that the bouncer said that he thought the Applicant might be carrying a gun. This interaction between the officer and the bouncer was not recorded on body-worn camera (BWC) despite Toronto Police Service (TPS) protocols in place requiring that it be recorded as part of a police investigation.

[6] The group’s interaction with the doorman was captured on the club’s CCTV, though there is no audio recording. A review of the footage shows that there does appear to be a conversation between a doorman and a group of people (including the Applicant) at the entrance to the club. The entire group show the bouncer their identification. The female enters the bar. A male in a Blue Jay’s jacket follows behind her but stops when the bouncer briefly interacts with the Applicant. Shortly after, the Applicant walks away from the club going east on King St West and the rest of this group follow moments later.

[7] Officer Arakaza followed the group down the street on foot. He activated his BWC but kept the audio muted. He testified that it took approximately 30 seconds to catch up to the group. The BWC was unmuted at approximately 1:07 a.m. as the Officer began speaking to the Applicant who the officer described as very polite and cooperative. In fact, Officer Arakaza testified that based on his own interactions with the Applicant he found it “very confusing” to believe that such a polite and cooperative man might be in possession of a firearm. The entirety of the officer’s stop on the sidewalk, the investigative detention, pat search of the satchel, discovery of the firearm, and arrest are captured on BWCs from Officers Arakaza and Gordon.

[8] Officer Arakaza’s BWC captured him advising the Applicant he was being detained for potential possession of a firearm. He was not cautioned or read rights to counsel despite the detention. Nonetheless, Officer Arakaza did ask the Applicant if he had anything on him that he should not have. The Applicant said “no”.

[9] Officer Arakaza then immediately conducted a pat-down search and felt the outside of the satchel worn by the Applicant. When the officer reached for the satchel the Applicant also reached for it and was told not to touch it. Officer Arakaza felt the outside of the satchel with his gloved hands and then told the Applicant that he would have to take a look inside the satchel. The officer removed the satchel from the Applicant’s body while Officer Gordon held his arm. The Applicant was handcuffed from the rear. He was still not cautioned or advised of his right to speak with a lawyer.

[10] Officer Arakaza looked inside the satchel and observed a firearm inside, a Glock handgun. At 1:09 Officer Arakaza advised the Applicant he was being arrested for possession of a firearm. The right to counsel was read to the Applicant and he immediately indicated that he wished to speak with a lawyer. The Applicant was still not cautioned.

[11] At 1:10 am Officer Arakaza removed the firearm from the satchel and racked it to determine whether it was loaded. It was not. Despite this fact, Officer Arakaza told the supervising officer on scene, Sergeant Nicholson, that it was chambered. The investigation then turned to the three other people who were with the Applicant. They too were detained and a pat down search conducted on them, despite there being absolutely no legal basis for the officers to do so. Nothing was found and the three friends were permitted to leave.

[12] At 1:11 Officer Arakaza muted his BWC and interacted with the Applicant as he was being placed in the cruiser at 1:13 a.m. Officers Gordon and Brown conducted a subsequent search incident to arrest of the Applicant near the hood of the scout car. When placing him back into the scout car Officer Gordon asked on BWC if the Applicant had been given his right to counsel. Officer Arakaza confirmed that the Applicant had been his right to counsel and then he cautioned him as he sat in the back of the cruiser.

[13] At 1:19 a.m. Sgt Nicholson advised the officers to transport the Applicant to the police station. Before doing so, Officer Arakaza again turned off his BWC at 1:19. He testified, in accordance with his notes, that he spoke with the bouncer at Ruby Soho at 1:20 a.m. at which time the bouncer refused to provide a statement. At 1:28 a.m. Officers Arakaza and Vukovic walked the Applicant from one scout car to another. At that time the Applicant asked to speak to a family member and was told he would have a reasonable opportunity to use the phone.

[14] At 1:36 a.m. Officers Arakaza and Vukovic left the scene with the Applicant in the scout car. During transport, the Applicant was questioned about his age and occupation, and other questions, despite the fact that he had not yet been cautioned and had asked to speak with a lawyer. No call had been placed yet to a lawyer or to duty counsel on his behalf.

[15] The parties arrived at the station at 1:44 a.m. The Applicant was removed from the cruiser at 2:11 a.m., cautioned by the booking Sergeant at 2:13 a.m. and frisk searched at 2:21 a.m. The Applicant was lodged in a cell at 2:30 a.m. The first call to duty counsel was at 2:56 a.m. Sometime between then and 4:00 a.m. Officer Arakaza’s notes indicate there was a duty counsel call back. It is not clear from any officer’s notes if the Applicant ever spoke to a lawyer or duty counsel.

The Charter Claims

Sections 8 and 9 of the Charter

Sections 8 and 9 of the Charter are properly considered together in the context of this application.

Section 9: Arbitrary Detention

[16] Section 9 of the Charter provides that everyone has the right to not be arbitrarily detained. To determine whether section 9 has been infringed the analysis proceeds in two stages. First it must be determined whether there was a detention. Second, it must be determined that the detention was arbitrary. An unlawful detention is always arbitrary and unjustifiably limits the protections provided by section 9: R v Le, 2019 SCC 34 at para. 29; R v Grant, 2009 SCC 32, at paras. 54-56.

[17] The police may detain an individual for investigative purposes where, in all of the circumstances, there are reasonable grounds to suspect that the individual is connected to a particular crime, and their detention is necessary: R v Mann, 2004 SCC 52, [2004] 3 S.C.R. 59. Reasonable suspicion must be assessed against the totality of the circumstances. This inquiry must consider the constellation of objectively discernible facts that are said to give rise to the officer’s suspicion that an individual is involved in the criminal activity under investigation. The inquiry must be fact-based, flexible and grounded in common sense and practical experience. A mere hunch, or even a sincerely held subjective belief, is not sufficient to engage the detention power: Mann, at para 35; see also, R v Shakes, [2009] O.J. No. 1632; R v J.K., 2010 ONCJ 232, [2010] O.J. No. 2675.

Section 8: Unreasonable Search and Seizure

[18] A pat-down search incidental to a valid investigative detention is only lawful if (1) the officer has reasonable grounds to believe there is a specific safety concern, (2) the decision to search is reasonably necessary in light of the totality of the circumstances, and (3) the search is conducted reasonably. The search “must be grounded in objectively discernible facts to prevent fishing expeditions on the basis of irrelevant or discriminatory factors.” Vague safety concerns cannot be used to justify these searches; hunches or mere intuition are not enough. The only other circumstance that justifies a search incident to an investigative detention is when it is reasonably necessary to eliminate “an imminent threat to the safety of the public or the police.”

This Case

[19] Clearly there was a detention in this case. Officer Arakaza advised the Applicant he was detained at 1:07 a.m. and immediately conducted a pat down search. However, there were insufficient grounds to detain Mr. Yaqubi.

[20] Officer Arakaza testified that his grounds to detain the Applicant were based on: his observations of the Applicant wearing a cross body satchel; his experience working in the Entertainment District; and a conversation with a bouncer who refused to give his name or provide a statement. Viewing the circumstances objectively, and in their totality, Officer Arakaza’s decision to detain the Applicant for possession of a firearm did not amount to reasonable suspicion. Officer Arakaza lacked “reasonable grounds to suspect a clear nexus between the individual and a recent or still unfolding crime.”: Le at para 131.

[21] In seeking to justify the detention, the officer points primarily to the information he obtained from a bouncer at the club, i.e. that the Applicant declined to be searched prior to entering the club and walked away instead. Whether or not the officer was provided with this information during his unrecorded interview with the bouncer is the subject of the Charter section 7/lost evidence claim discussed below. For the reasons elaborated upon below, I can have no real confidence in the officer’s account of his conversation with the bouncer. However, for the purposes of the section 8 and 9 Charter analysis I will assume that the officer’s account of what he was told is true and accurate.

[22] Characteristics that apply broadly to innocent people, or factors that go “both ways”, such as avoiding eye contact, wearing a satchel or declining to be searched before entering a club, are insufficient to support reasonable suspicion. As such, the Applicant’s decision to decline being searched before entering a club does not give rise to a reasonable suspicion that he is carrying a firearm. There are all kinds of reasons why one might not want to submit to a search before entering an establishment, many of them perfectly innocent. That fact alone does not amount to reasonable suspicion justifying an investigative detention.

[23] In addition to the information from the bouncer, the officer also relies upon two other factors said to justify his detention of the Applicant: 1. That he was in the Entertainment District of Toronto on a weekend night, and 2. That he was wearing a cross-body satchel. However, neither of these factors provide any additional justification for the detention and search of the Applicant.

[24] While generalized concerns in the Entertainment District may provide a reason for police presence, they do not justify an investigative detention, either alone or in conjunction with other factors. There is no neighbourhood in Toronto that is a Charter free zone. Citizens are entitled to precisely the same Charter protections regardless of what area the city they live in or visit and/or what day of the week it is. Further, the fact that someone is in that area at that time provides no basis whatsoever for augmented grounds to believe they are acting unlawfully. The vast majority of people that visit the Entertainment District of Toronto on weekends are doing so lawfully.

[25] As for wearing a cross-body satchel, it is true that guns are sometimes carried in cross-body satchels. But that does not mean that all persons – or even most persons – wearing cross body satchels are doing so to conceal a firearm. Cross body satchels are very popular in the population at large and the mere fact that one is wearing one does not give the police grounds to stop and frisk.

[26] The search of the Applicant’s person and satchel, following an arbitrary detention, breaches his section 8 Charter right to be left alone. Without grounds to detain, there were no grounds to search incidental to that detention. Further, the Applicant was polite and compliant with the officers and there were no reasonable grounds to believe that there was an imminent safety risk to the police or public to justify stopping the Applicant on the street and immediately engaging in a pat-down search.

[27] The Applicant’s section 8 and 9 Charter rights were violated in this case.

Section 10(b)

[28] The section 10(b) right imposes informational and implementational duties. It requires police officers do the following upon arrest or detention:

1. Inform the detained person immediately of their right to counsel;

2. Facilitate contact with counsel by offering them the use of a telephone at the first available opportunity, and

3. Hold off questioning until the detainee has had a reasonable opportunity to retain and instruct counsel.

[29] The section 10(b) right to counsel arises immediately upon detention, whether or not the detention is solely for investigative purposes. The police have a duty to inform a detainee of their right to retain and instruct counsel, and a duty to facilitate that right, immediately upon detention: R v Suberu, 2009 SCC 33.

[30] Determining whether a delay in providing the right to counsel is justified involves a fact-specific and contextual analysis. As the Court of Appeal stated in R v Rover, 2018 ONCA 745 at para. 28, “the suspension of the right to counsel is an exceptional step that should only be undertaken in cases where urgent and dangerous circumstances arise or where there are concerns for officer or public safety.”

This Case

[31] The Applicant’s rights under section 10(b) of the Charter were infringed in this case. The Applicant was detained at 1:07 a.m. He was not informed of his right to counsel or cautioned until after he had been detained, searched and arrested. Instead, the officer asked the Applicant upon his initial detention if he had anything he should not have on him. Upon his subsequent arrest the Applicant was informed of his right to counsel (at 1:09 a.m.) and immediately told the officers that he wanted to speak with a lawyer. It is not clear on this record when if ever a call to counsel was ultimately facilitated.

[32] The Applicant was left waiting in the back of the cruiser for 22 minutes with multiple officers standing by, and no concerns of safety noted. While section 10(b) does not create a right to use a specific phone, it does guarantee that the individual have access to a phone to exercise his right to counsel at the first reasonable opportunity. The Applicant submits that the first reasonable opportunity was in the back of the scout car. The officers testified that privacy could not be afforded to the Applicant in the back of the car, given the in car camera system.

[33] Counsel to the Applicant suggests that he should have been at least given the opportunity to speak with counsel from the back of the cruiser whether or not it was a private call. They point to the decision of my colleague in R v Elzain, [2016] OJ No. 522 as support for the proposition. I don’t need to decide that issue in this case. It was only much later at the police station that duty counsel was contacted on the Applicant’s behalf.

[34] The delay in facilitating the right to counsel continued after transport when the Applicant was lodged in a cell and another 26 minutes passed before the first call to duty counsel was placed at 2:56 a.m., almost two hours after he was initially detained. None of the officer’s notes indicate when the Applicant actually spoke to a lawyer, therefore the time of the call is unknown.

[35] The Crown bears the onus of establishing a sufficient record of the interaction between the Applicant and the police. The deficiencies in the record in this case are similar to those identified by the Court of Appeal in R v Noel, 2019 ONCA 860 and that lead the court to conclude that there had been a significant breach of section 10(b) requiring the exclusion of the evidence pursuant to section 24(2).

[36] The delay in facilitating the Applicant’s access to counsel was unreasonable. Further, the failure of the officers to hold off questioning the Applicant until after he had received legal advice amounts to an additional stand alone violation of the Applicant’s section 10(b) rights.

Remedy

Section 24(2) of the Charter: The Exclusion of Evidence

[37] In determining whether the admission of evidence would bring the administration of justice into disrepute, the court must review and balance three lines of inquiry with a “long-term, forward-looking and societal perspective.” The three lines of inquiry can be summarized as:

1. The seriousness of the Charter-infringing state conduct;

2. The impact of the breach on the Charter protected interests of the accused; and

3. Society’s interest in the adjudication of the case on its merits.

(i) The Seriousness of the Charter-infringing Conduct

[38] The Charter breaches that took place in this case were serious. They include breaches of sections 8, 9 and 10(b) of the Charter. The detention and subsequent search of the Applicant was unwarranted and amounts to breaches of sections 8 and 9 of the Charter. The failure to facilitate the Applicant’s right to counsel in a timely manner amounts to a breach of section 10(b) that was aggravated by the failure of the officers to hold off on asking him questions: R v Grant, 2009 SCC 32; R v Gonzales, 2017 ONCA 543.

[39] Further, the Applicant was not read rights to counsel or cautioned upon detention. He was immediately asked potentially incriminating questions and subjected to a warrantless search of his person and satchel. The police then failed to facilitate a call to counsel within a reasonable time despite his immediate request to speak to a lawyer.

[40] The police misconduct in this case falls on the serious end of the spectrum. The cumulation of the numerous Charter violations should weigh heavily in favour of exclusion. The admission of the evidence in this case would send the message that the justice system condones serious state misconduct. It does not.

[41] There were also some additional factors that aggravate the misconduct in this case, including the decision of the police to stop and search the Applicant’s acquaintances even though there was absolutely no basis whatsoever for doing so. Officer Arakaza admitted as such when he testified before me. This was done illegally and speaks to the cavalier nature of the police in conducting the detention and search of the Applicant and even his friends who, it may be recalled, agreed to be searched before entering the Ruby Soho club.

(ii) The Impact on the Charter Protected Interests of the Accused

[42] The Applicant had the right to be left alone. He held a reasonable expectation that he would not be subjected to an arbitrary detention and search while walking down the street. Further, he was deprived of his constitutionally protected right to consult with counsel in a timely manner. It has been stated by our courts on numerous occasions that the right to counsel is a lifeline for detained persons, and the psychological value of access to counsel without delay should not be underestimated.

(iii) Society’s Interest in the Adjudication on the Merits

[43] Where both the first and second Grant factors point to exclusion, the third Grant factor will rarely succeed: R v McGuffie, 2016 ONCA 365 at para 63.

[44] The firearm is real and reliable evidence. Its exclusion guts the Crown’s case. Guns represent a serious public safety issue in Toronto. Gun violence is a serious concern in our communities. The exclusion of this kind of evidence is not something any judge of this court takes lightly.

[45] However, the long-term repute of the administration of justice needs to be the focus of the 24(2) inquiry. Society’s interest in ensuring that a civilian’s liberties are not unjustly or arbitrarily interfered with weighs in favour of excluding the evidence. After all, “there is a public interest in ensuring that individuals are free to move around the community and not be stopped by police in the absence of lawful authority.”: R v Atkinson, 2019 O.J. No. 3407 at paras. 249-251.

[46] In balancing the Grant principles, the courts should not lose sight that Charter protections belong to everyone, and guard against sending a message to the police that the ends justify the means. The failure of the court to disassociate itself from illegal state conduct “may signal to the public that Charter rights, however high sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute”: Grant, supra, at para. 76. In this case, the balance weighs in favor of exclusion.

Section 7 of the Charter and Lost Evidence

[47] The Applicant submits that his Section 7 Charter rights were violated by the selective muting of the body worn cameras activated during his police interactions. He specifically alleges that his right to make full answer and defence was violated by the failure of the police to obtain the name, contact information, a description of, or a statement from a key witness, namely the bouncer at the club that purportedly turned Mr. Yaqubi away for refusing to be searched. It is this utterance that the officer points to as affording him grounds to detain and search the Applicant.

[48] The Applicant submits that the identity of the bouncer and the statements allegedly made by the bouncer are relevant, essential evidence and should have been obtained and preserved by the police. Furthermore, they submit that the loss of these items is prejudicial to the Applicant’s right to make full answer and defence.

[49] In R v La, 1997 SCC 309, [1997] 2 SCR 680 the Supreme Court established that when a relevant piece of evidence is lost due to the state’s unacceptable negligence, an accused’s right to disclosure under section 7 of the Charter is violated (paras. 20–22). If the Crown leads no evidence as to why it failed to disclose relevant evidence to the defence before it was erased or destroyed, it will have failed to meet its burden to show that the loss of the evidence was not due to unacceptable state negligence: R v Dulude, 2004 ONCA 30967, para 32; R v Mymryk, 2004 QCCS 32042, para 40.

[50] In R v Azfar, [2023] O.J. No. 2543 Justice Porter held that it was inconceivable that fair investigative practices by the police could include selective muting of portions of the police investigation. The result is that BWC footage is incomplete and inaccurate. He found that the muting of a conversation between two officers where they discussed their grounds to make an ASD demand violated section 7 of the Charter. His Honour held that the breathalyzer results were temporally, contextually and proximately related to the section 7 violation and granted a remedy under section 24(2) of the Charter as a result. In R v Bero, 2000 ONCA 16956, para 44, the Court of Appeal explained that the integrity of the judicial process will be put at risk where the conduct of the state undermines the fairness of the trial process or deliberately frustrates the court’s ability to reach a proper verdict.

[51] Furthermore, even if the Crown shows that there was no unacceptable negligence resulting in the loss of evidence, there may still be a section 7 breach if the loss can be shown to be so prejudicial to the right to make full answer and defence that it impairs the right to a fair trial: R v Bradford, 2001 ONCA 24101, para 4. In R v Bradford, [2001] O.J. No. 107 the Court of Appeal for Ontario emphasized that in deciding whether or not unacceptable negligence leading to the loss of evidence should result in a stay of proceedings, it is important that the analysis focus on actual prejudice to the right to make full answer and defence.

Section 24(1): A Stay of Proceedings

[52] The police’s failure in this case to ensure that relevant evidence was preserved for disclosure is troubling. Preservation of relevant evidence is imperative for an accused to make full answer and defence.

[53] At a number of important junctures during the investigation in this case, the arresting officer either failed to turn on, or muted, his BWC. He did so in contravention of the TPS policy then governing the use of BWC. Further, he did not get the name or contact information from the bouncer or any other information that would establish the identity of the bouncer. There is therefore no basis to test the officer’s evidence as to what was or was not said to the officer prior to him stopping the Applicant. The ability of the defence to test the truthfulness of Officer Arakaza’s account of his discussions with the bouncer, said to give him grounds to detain the Applicant, has been compromised. The evidence is of central importance to this case and we don’t have access to it due to the decisions made by the officer.

[54] Further, in this case there are more than the usual reasons to test the credibility of the arresting officer. Officer Arakaza clearly lied to his supervising Sergeant that night in relation to the circumstances of the Applicant’s detention and subsequent arrest. Though the officer cleared the Applicant’s gun and found no bullet in the chamber he told his supervising Sergeant that the gun was loaded. This is a significant lie designed to augment the seriousness of the Applicant’s criminality and the dangerousness of the situation. It calls into question the officer’s credibility with respect to the central issue on this Charter application, namely his observations of the Applicant and the purported basis for the initial detention.

[55] Even if the Crown were to establish that the muting of the body-worn cameras was not deliberate, or due to unacceptable negligence on the part of the officers, the muting of the audio is prejudicial to the right to make full answer and defence. The crux of the Applicant’s defence relates to the legality of the detention and search of his person. The muting of the audio on the BWCs deprives the Applicant and the Court of the ability to properly assess what grounds the officers had at the time they detained and searched the Applicant.

[56] I have concluded that this is one of those rare cases warranting a stay of proceedings. The ability of the defence to test the truthfulness of the officer’s purported grounds for detention amounts to a breach of his section 7 right to make full answer and defence and warrants a stay of proceedings pursuant to section 24(1) of the Charter.

Conclusion

[57] I make an order pursuant to section 24(2) of the Charter excluding the evidence obtained during the unlawful and constitutionally impermissible detention and search of the Applicant. In the alternative, I would stay the proceedings pursuant to section 24(1) of the Charter having regard to the breach of the Applicant’s section 7 right to make full answer and defence.

Released: February 4, 2025
Signed: Justice S. Chapman