FILE NO.: CRIM (J) P 677/13
DATE: 20151103
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SAMIR ABDEL-GADIR
W. Glenn Orr, Q.C. and Michael Quigley
- and -
HER MAJESTY THE QUEEN
David Maylor, Alexander Cornelius, and Eric Taylor
HEARD: March 10 - 13, 17, 18, 20, 24, 26, 27, April 1, 8, 9, 13, 14, June 30, and August 31, September 28 and 30, 2015
REASONS FOR DECISION
DEFENCE CHARTER APPLICATION – SECTIONS 7, 8, 9, 10(a) and (b) and 11(d)
CROWN APPLICATION TO ADMIT STATEMENT
Contents
OVERVIEW.. 2
THE ISSUES. 7
ISSUE ONE – DID THE HPS PLANT EVIDENCE?. 7
ISSUE TWO – ARE THERE OTHER GROUNDS TO QUASH THE SEARCH WARRANTS? 12
ISSUE THREE - SHOULD THE EVIDENCE BE EXCLUDED UNDER SECTION 24(2) OF THE CHARTER?. 22
ISSUE FOUR - ADMISSIBILITY OF STATEMENTS. 25
CONCLUSION. 27
SPROAT J.
OVERVIEW
[1] I begin with an overview of the evidence. I will add additional detail as I later address the specific issues.
[2] The Hamilton Police Service (“HPS”) executed a warrant at Mr. Abdel-Gadir’s Hamilton residence on June 9, 2011. Mr. Abdel-Gadir was arrested and the police seized a key ring and Mr. Abdel-Gadir’s iPhone. The keys were delivered to the Peel Regional Police (“PRP”) who were then executing search warrants at Mr. Abdel-Gadir’s Mississauga condominium. The keys opened Stanley locks on a storage locker associated with Mr. Abdel-Gadir’s condominium unit as well as the locks on two additional storage lockers.
[3] The PRP found packaging for Stanley padlocks in the locker associated with Mr. Abdel-Gadir’s condominium. The other lockers contained a total of eight handguns, ammunition, 407 grams of marijuana, 81 grams of cocaine, and 11.2 kg of dextrose. Two handguns were found to have the DNA of Mr. Abdel-Gadir.
[4] Mr. Abdel-Gadir’s iPhone, seized in Hamilton, had a photo of a hand gripping a handgun with two fingers visible. A finger print analysis confirmed it was Mr. Abdel-Gadir holding the handgun.
[5] On the day of his arrest Mr. Abdel-Gadir gave a statement to PRP indicating that the handguns were owned by Andy Owusu. Owusu was a friend of Mr. Abdel-Gadir who for a time had lived with him at the Mississauga condominium. Owusu was arrested and also charged. The PRP later determined that Owusu was, at the material time, living in British Columbia and could not have been responsible for the handguns some of which had recently been stolen. The charges against Owusu were withdrawn. Mr. Abdel-Gadir later admitted that he lied to the police to implicate Owusu.
[6] The affiant on the June, 2011 Informations to Obtain (“ITOs”) was Det. Cst. Ruthowsky of the HPS. Det. Cst. Ruthowsky was suspended on July 4, 2012. In October – November of 2012, he was charged with obstruction of justice, the unlawful release of CPIC information and 26 Police Services Act (“PSA”) charges. The criminal charges were later stayed, which may have been done to protect confidential informants. No steps have been taken by the HPS to proceed with the PSA charges.
[7] The position of the defence going in to the Charter motions was that Det. Cst. Ruthowsky was a “rogue” officer who was involved in criminal activity and that he had orchestrated the planting of the guns in the storage locker to frame Mr. Abdel-Gadir. The suggested motive was that Det. Cst. Ruthowsky had a grudge against Mr. Abdel-Gadir because he believed Mr. Abdel-Gadir had helped a fugitive, who was wanted for first degree murder, to escape and thereafter refused to divulge his whereabouts.
[8] On June 4, 2015, in the course of the Charter motions, Det. Cst. Ruthowsky was arrested and charged with participation in a criminal organization, breach of trust, conspiracy to traffic cocaine and commission of an indictable offence for a criminal organization. As appears from a police synopsis, these criminal charges relate to the following:
a) on January 20, 2015, the police arrested a suspect on robbery charges. The robbery had occurred January 15, 2015. The police discovered a text message on the suspect’s cell phone from Det. Cst. Ruthowsky referring to the name and age of a man who had been arrested, and the description of another suspect and his vehicle. The allegation is that the information texted by Det. Cst. Ruthowsky was not publicly available and, therefore, constituted privileged police information.
b) on May 22, 2015, the police, acting under the authority of a general warrant, broke into a parked vehicle and seized two kilograms of cocaine which had just been picked up by a drug courier. This stimulated various telephone conversations among members of the criminal organization which were intercepted on May 24, 2015. One member of the criminal organization called Det. Cst. Ruthowsky and in the course of that conversation Det. Cst. Ruthowsky told him it was possible the police could have been responsible for breaking into the vehicle and taking the cocaine if the police had a general warrant. He said that to his knowledge the HPS had never obtained a general warrant of that description but it was possible. Det. Cst. Ruthowsky also offered the opinion that it was 98 or 99% probable that it was the drug courier that had stolen the cocaine. Det. Cst. Ruthowsky also made the suggestion that they could do a “reverse play” on the drug courier by lining up someone who would not be associated with the group to call up the drug courier and offer a big price for a quantity of cocaine because the drug courier would be trying to offload it as quickly as possible. By this means, they could ascertain if the drug courier had stolen the drugs.
[9] The defence also pointed to the fact that Det. Cst. Hansen, who worked closely with Det. Cst. Ruthowsky in the Gangs and Weapons Enforcement Unit was also charged with criminal offences, unrelated to Mr. Abdel-Gadir, in late 2012. According to Det. Cst. Hansen the charges arose out of a situation in which an informant indicated that he had a gun that he wanted to plant on a man named Mork so that the police could find the gun and arrest Mork. Det. Cst. Hansen testified that he thought agreeing to the plan was the only opportunity to get the gun off the street. It was unorthodox so he consulted with Det. Cst. Ruthowsky and Det. Cst. Moore. He intended to seize the gun but not charge Mork.
[10] The charges against Det. Cst. Hansen relate to the fact that in the ITO he stated that the source had “heard” that Mork had a gun. He did not divulge that it was in fact the source who had the gun and intended to plant it on Mork. Asked why he did not put the truth in the ITO he said he believed the right thing to do was to protect the informant. He felt he had to mention the gun but was troubled with how to include it.
[11] Det. Cst. Hansen does not think he was clear at the time as to when the gun would be planted. He does not remember if he checked to see if there were children in the home. He does not think there was a plan in advance where the gun could be placed but it would be somewhere Mork would not find it. He does not recall exactly what Det. Cst. Ruthowsky said when told of the plan but he did not express reservations about it. Before the search he did get a text that the gun had been planted in a sofa.
[12] A blended voir dire was held to consider a Crown application to admit the statements by Mr. Abdel-Gadir to the police and defence applications to quash the search warrants and exclude all evidence seized, or alternatively to stay the proceedings on the grounds that Mr. Abdel-Gadir’s s.7, 8 and 9 Charter rights were violated.
THE ISSUES
[13] The issues are as follows:
a) did the HPS plant the handguns to implicate Mr. Abdel-Gadir?
b) are there other grounds to quash the search warrants?
c) if the warrants are quashed should the evidence be excluded?
d) has the Crown proven beyond a reasonable doubt that statements by Mr. Abdel-Gadir to the PRP were voluntary?
ISSUE ONE – DID THE HPS PLANT EVIDENCE?
[14] I address this issue first, because if I was satisfied that members of the HPS had orchestrated a conspiracy to plant the guns and drugs to implicate Mr. Abdel-Gadir the inevitable result would be that the ITOs would be quashed and the evidence excluded.
[15] In support of the alleged conspiracy the defence relies primarily on the following:
a) the testimony of Mr. Abdel-Gadir that he had no knowledge of the guns;
b) the testimony of Mr. Abdel-Gadir’s friend, Raimondi indicating that he saw John Morrone put guns in a storage locker at Mr. Abdel-Gadir’s building and that he and Morrone visited Mr. Abdel-Gadir in Hamilton and Morrone instructed him to distract Mr. Abdel-Gadir. While Mr. Abdel-Gadir was distracted Morrone had an opportunity to plant the Stanley locker keys;
c) the charges against Det. Cst. Ruthowsky that the defence submits demonstrate that he is corrupt.
[16] The evidence, however, falls far short of establishing any conspiracy to plant guns and drugs to implicate Mr. Abdel-Gadir. I start with evidence for which Mr. Abdel-Gadir offers no explanation. Mr. Abdel-Gadir testified on the voir dire and denied any knowledge of storage lockers apart from the locker associated with his condominium. Mr. Abdel-Gadir’s iPhone, however, was analyzed by the PRP and had on it an email containing a locker rental agreement for an unspecified storage locker at 4090 Living Arts Drive, being his condominium building. The name of the renter was a person Mr. Abdel-Gadir has known since 2000.
[17] The uncontradicted expert evidence was that it would take an Apple corporation software engineer to fabricate and plant such an email. The only alternative explanation was that someone, in possession of Mr. Abdel-Gadir’s iPhone and the passwords required to access his email accounts, put the email there. Mr. Abdel-Gadir did not testify that anyone had access to this phone or his passwords. The locker lease is compelling evidence that connects Mr. Abdel-Gadir to the storage lockers, the handguns and the drugs.
[18] As discussed there is also physical evidence which implicates Mr. Abdel-Gadir and for which he provides a series of explanations that are in my opinion implausible:
(a) Mr. Abdel-Gadir explained his DNA on three handguns on the basis that Owusu carried a handgun which Mr. Abdel-Gadir handled on several occasions out of curiousity. Recognizing that possessing a handgun is a very serious criminal offence, and common knowledge regarding DNA, why would Mr. Abdel-Gadir handle three guns owned by Owusu as a matter of idle curiosity?
(b) how likely is it that Owusu would carry and happen to show Mr. Abdel-Gadir three different handguns and that Mr. Abdel-Gadir would deposit DNA on all of them?
(c) Mr. Abdel-Gadir explained the photo of the handgun on his iPhone on the basis his friend Morrone was trying to sell the handgun and he took a photo of it to attempt to find a lawful purchaser. Given the evidence of Morrone’s extensive criminal history no one would believe this was a legitimate transaction. Why get involved with an obviously criminal transaction?
(d) Mr. Abdel-Gadir explained a gun holster found in his condominium on the basis that Owusu left it behind. Why would anyone who always carried a gun leave behind a gun holster? Why would Mr. Abdel-Gadir not return or get rid of it immediately if it was not his, particularly given his stated concern the police were out to get him?
(e) Mr. Abdel-Gadir explained a cash counting machine on the basis that he purchased it for a home renovation business he started. This makes absolutely no sense. How many transactions would be cash? How hard is it to count hundreds and even thousands of dollars? Why were no records or equipment related to the business located in the searches?
[19] The lack of motive is also difficult to reconcile with the alleged conspiracy to plant evidence. The suggested motive for Det. Cst. Ruthowsky to target Mr. Abdel-Gadir is that he was angry because Mr. Abdel-Gadir would not provide information concerning a fugitive. It is difficult to see this as a motive to plant one handgun. It makes absolutely no sense that Det. Cst. Ruthowsky would collect and plant eight handguns. Further, on Mr. Abdel-Gadir’s evidence Morrone had no motive to harm him. They had a friendly relationship.
[20] Mr. Abdel-Gadir’s credibility is affected by the following:
(a) he admits to lying to the police to implicate Andy Owusu.
(b) he has given a series of explanations that I conclude are false and intentionally made up to attempt to explain away incriminating evidence.
[21] Raimondi’s credibility is affected by the following:
(a) he makes his living dealing drugs and working at illegal gambling venues.
(b) his explanation that Morrone told him to distract Mr. Abdel-Gadir, but gave no indication of how and when, makes no sense.
(c) while he was a good friend of Mr. Abdel-Gadir, and took his mother to appointments and shopping while Mr. Abdel-Gadir was in in jail, he did not come forward with the information that Morrone planted a gun until sometime in 2013
(d) one would think that aspects of the trip with Morrone, at which he was required to distract Mr. Abdel-Gadir in return for the forgiveness of thousands of dollars he owed Morrone, would be etched in his memory. In fact he initially said a man accompanied them as their driver and later forgot about the man’s presence when being cross-examined.
(e) he was often evasive in answering questions. For example, he lived with a person for over a year, in or about 2011, but claimed he could not recall his last name. This is highly improbable.
[22] I, therefore, reject the evidence of Mr. Abdel-Gadir and Raimondi as being unworthy of belief insofar as Mr. Abdel-Gadir denies possession of the handguns and drugs and Raimondi claims that Morrone planted a handgun in a locker and later got him to distract Mr. Abdel-Gadir which would allow Morrone to plant keys at Mr. Abdel-Gadir’s Hamilton residence.
[23] The defence submitted that since Det. Cst. Ruthowsky faces PSA and criminal charges, and the HPS has suspended him and does not trust him, his evidence is unreliable.
[24] Det. Cst. Ruthowsky is facing charges. He testified that he could not explain his conduct without referring to facts that could identify confidential informants. He did provide his explanation at an in camera hearing. His explanations, if accepted, would probably be a defence to the criminal charges.
[25] The PSA charges arose in 2012 and the criminal charges in 2015. They are unrelated to Mr. Abdel-Gadir. I do not find it necessary to express an opinion on the merit of the charges or the explanation. The fact is that even if I assume for present purposes that Det. Cst. Ruthowsky is not credible, and I disregard his evidence, there is compelling evidence Mr. Abdel-Gadir was in possession of the guns and drugs.
[26] Considering the totality of the evidence, I am satisfied on a balance of probabilities that Mr. Abdel-Gadir was in possession of the storage lockers and the handguns and drugs found in them. I am also satisfied that the HPS played no role in planting the handguns and drugs.
ISSUE TWO – ARE THERE OTHER GROUNDS TO QUASH THE SEARCH WARRANTS?
A. Did Det. Cst. Ruthowsky deliberately falsify information in the ITOs?
[27] Det. Cst. Ruthowsky swore an ITO on June 8, 2011, which referenced confidential information from three informants referred to as Sources A, B and C. I will first review the information in the redacted ITOs.
[28] Source A, informed Det. Cst. Ruthowsky:
a) in February, 2011 that Mr. Abdel-Gadir lives at apartment 2702 of the Living Arts building in Mississauga and stores cocaine, marijuana and guns in a locker in the building that belongs to a friend. Source A had observed multiple pounds of marijuana in a freezer in the locker;
b) in April, 2011 that Mr. Abdel-Gadir was using a locker in Bay 10 of the building to store guns;
c) in June, 2011 that Mr. Abdel-Gadir retrieved marijuana from a locker in Bay 10 and there were still multiple ounces of marijuana in his apartment.
[29] Det. Reed of the HPS alerted Det. Cst. Ruthowsky to an HPS Intelligence Report which recorded that Source B had advised the Toronto Police Service (“TPS”) that Mr. Abdel-Gadir was a cocaine trafficker who sold cocaine to Source B at his Hamilton residence.
[30] Paragraph 4.11 of the ITO, respecting Source C, provided as follows:
After speaking with Detective McCALLISTER I once again spoke with Detective MOORE who had earlier advised me that he had an informant with information about Samir ABDELGADIR. I first confirmed that his Hamilton registered informant was a different informant then mine. For the purpose of this information to obtain search warrant I will refer to Detective MOORE’s informant as Source C. Detective MOORE, refreshing his memory with his informant notes advised me of the following: On March [redacted] 2010 Source C advised Det. MOORE that Samir ABDELGADIR has a condo in Mississauga. Samir uses the storage lockers in this building to store large amounts of marihuana. [redacted] of September 2010 Source C advised that Samir has two guns. Source C advised that Samir is hiding these guns with his marihuana in the storage lockers at his building. On the 18th of May 2011 Source C advised that Samir purchases between 10 and 20 pounds of marijuana at that time. Samir keeps about 10 pounds of this marijuana in a storage locker at the 4090 Living Arts Drive building in Mississauga. Source C stated that the storage locker is not in Samirs name but is a friend of his who also lives in the building. Source C advised that Samir will take another 10 pounds and keep it at his 1768 Main St. West Unit #6 Hamilton residence. Source C advised that he had just left Samir’s apartment. Source C advised that there were several ounces of marijuana inside of Samir’s actual 2702 apartment unit. Source C advised that Samir always keeps a large amount of marijuana inside of his apartment so he can smoke it at his leisure and make quick sales.
[31] Crown counsel conceded that the redacted ITOs did not reveal information upon which the Justice could properly have issued the search warrants.
[32] The Crown asked that I review the unredacted ITOs in accordance with Step 6 of R. v. Garofoli, 1990 SCC 52, [1990] S.C.J. No. 115 (S.C.C.). I did so and a judicial summary of the redacted portions was provided to the defence. I was satisfied that the summary provided the defence with sufficient information to be able to cross-examine effectively.
[33] In the course of the voir dire, Mr. Maylor brought to the attention of the defence and the Court that there were discrepancies between the information Det. Cst. Ruthowsky attributed to Det. Cst. Moore and Source C in the ITOs and what in fact Det. Cst. Moore’s notes recorded. Most significant were the following:
a) Det. Cst. Moore had no note of any contact with Source C on May 18, 2011.
b) much of the information the ITOs attributed to Source C on May 18, 2011 was actually provided by Source C in September 2010.
c) contrary to what was stated in the ITOs, Source C never stated that Mr. Abdel-Gadir would store ten pounds of marijuana at his Hamilton residence.
[34] In cross-examination Det. Cst. Ruthowsky denied deliberately falsifying what Det. Moore told him. Det. Cst. Ruthowsky said that since some of the redacted information was more current than May 18, 2011 he had no reason to insert that date to make the ITOs more current.
[35] Det. Cst. Ruthowsky did recollect that Det. Cst. Moore had his informant notebook in hand and was referring to it when he obtained the information regarding Source C.
[36] I appreciate that there is some scope for errors to occur when information is being related from one officer to another. It is, however, difficult to comprehend how Det. Cst. Moore can read from his informant notebook and the specific date of “May 28, 2001”, that does not appear in Det. Cst. Moore’s notes, can end up in the ITOs due to a communication error.
[37] I also accept Det. Cst. Moore’s evidence that at no time did Source C tell him that Mr. Abdel-Gadir would store ten pounds of marijuana at his Hamilton residence. This was a significant element of the ITO as there was little information linking the criminal activity to the Hamilton residence and this information was purportedly quite recent. Again, it is difficult to conceive how an inadvertent communication error could be responsible for such a discrepancy.
[38] Det. Constable Ruthowsky denied any attempt to mislead. He stands by his evidence that he did his best to record the information Det. Constable Moore read out to him.
[39] While in resolving this issue I principally rely on the improbability the errors could be inadvertent, there are a number of factors which suggest that Det. Cst, Ruthowsky was prepared to cut corners and ignore legalities.
[40] Det. Cst. Ruthowsky testified that while suspended he has, sometimes on his own initiative, and sometimes upon receiving a request for assistance, engaged in police work. One example is he took a substance to a private lab to be tested to further an investigation. He said he knew it was wrong to engage in any police work while under suspension but viewed himself as having a higher duty to protect the public. In giving evidence he took the position it was within his power to decide whether to obey the suspension or not. Effectively, “the end justifies the means”.
[41] The wiretapped conversation that founds one of the 2015 criminal charges is also troubling. I express no opinion as to Det. Constable Ruthowsky’s guilt or innocence. He gave an explanation for the communication at an in camera hearing that may be accepted or raise a reasonable doubt as to his guilt. It remains, however, that while suspended he was advising a person associated with a drug dealer that his drug courier was probably responsible for the theft of $125,000 worth of cocaine. That opinion, if accepted, could amount to a death sentence for a courier.
[42] Det. Cst. Ruthowsky also admits knowing that Det. Cst. Hansen had a plan whereby an informant would plant a gun in a residence so the police could find it. Given that they worked in a small unit and briefed one another on what each was doing, and that this was an unusual occurrence, I infer and find that Det. Cst. Ruthowsky was aware of the plan in detail including the contents of the ITO. At a minimum the ITO was highly misleading and again reflects a “the end justifies the means” attitude.
[43] I, therefore, find as a fact that Det. Cst. Ruthowsky deliberately fabricated the date of May 18, 2011 and then transposed certain information from September, 2010 to May 18, 2011 to make it more current. He also deliberately fabricated the information that Mr. Abdel-Gadir kept ten pounds of marijuana at his Hamilton address. It follows, and I find, that he deliberately gave false testimony when he claimed that he attempted to accurately record the Source C information as related by Det. Cst. Moore and that any error was inadvertent.
[44] What then is the legal consequence of that finding? In R v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, Lebel J. noted:
54 The authorities stress the importance of a contextual analysis. The Nova Scotia Court of Appeal, while reviewing the cases from our Court cited above, explains this in a judgment dealing with problems arising out of errors committed in good faith by the police in the material submitted to the authorizing justice of the peace:
These cases stress that errors, even fraudulent errors, do not automatically invalidate the warrant. This does not mean that errors, particularly deliberate ones, are irrelevant in the review process. While not leading to automatic vitiation of the warrant, there remains the need to protect the prior authorization process. The cases just referred to do not foreclose a reviewing judge, in appropriate circumstances, from concluding on the totality of the circumstances that the conduct of the police in seeking prior authorization was so subversive of that process that the resulting warrant must be set aside to protect the process and the preventive function it serves.
[45] In Araujo the authorization was upheld. Lebel J., however, noted a number of facts that distinguish Araujo from our case:
60 In this case, any credibility issue related to the police officer was temporally and logically far removed from the affidavit itself. More than a year after the swearing of the affidavit, Constable Rosset was found to lack credibility on the issue of why he had not disclosed a drafting mistake, perhaps a very minor typographical error. There is no suggestion that there was ever any untruthfulness in the substance of the information in the affidavit itself: see the Court of Appeal judgment at para. 23.
[46] In R v. Colbourne (2001), 2001 4711 (ON CA), 157 C.C.C. (3d) 273 (Ont. C.A.) an inexperienced officer failed to disclose a previous filed application for a warrant because he honestly believed that it was not necessary to do so. He incorrectly assumed the second application would return to the same justice. The trial judge refused to exclude the evidence and this was upheld on appeal. Doherty J.A. stated:
The reasons for and the nature of the non-disclosure of the prior refusal are important considerations in determining the effect of that non-disclosure on the validity of the warrant. If the non-disclosure was for some improper motive or was intended to mislead the Justice of the Peace before whom the second application was made, that non-disclosure standing alone may well invalidate the warrant despite the presence of reasonable and probable grounds to issue the warrant: R. v. Kesselring (2000), 2000 2457 (ON CA), 145 C.C.C. (3d) 119 at 127 (Ont. C.A.); R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 at 553 (N.S.C.A.); R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 at 473 (S.C.C.). On the findings of the trial judge, that is not this case.
[47] In my opinion the fact that Det. Cst. Ruthowsky deliberately fabricated significant elements of the ITOs, and then lied about it in court, was to quote Araujo, “…so subversive of the process that the resulting warrant must be set aside.” The warrant is, therefore, quashed.
[48] I will, however, for the sake of completeness proceed to analyze the facial validity, and the sub-facial validity, of the warrants.
B. Facial Validity
[49] The redacted ITOs contained information that Sources A and C had a history of providing reliable information. There was also information associating Mr. Abdel-Gadir with known criminals and criminal activity. The redacted ITOs were however, not terribly compelling given the lack of information as to how and when the source acquired the information and the fact it was not very current.
[50] As discussed I have considered the unredacted ITO in accordance with step six of Garofoli. I must consider the totality of the circumstances in terms of:
Is the information in the ITO compelling?
Is the confidential informant credible and reliable?
Was the information corroborated?
[51] I must be cautious and somewhat cryptic in my comments because an itemized reference to the redacted portions, and an analysis of the extent to which they made the information compelling, credible and reliable and/or provide corroboration, could go a long way to disclosing the content of the redactions.
[52] I will, therefore, simply say that the redacted portions in their entirety provide certain first hand and specific information concerning the offence alleged which was relatively current. The redacted portions also contain an additional example of information provided which proved to be accurate.
[53] On the basis of the unredacted ITOs, and having regard to the relevant considerations as identified in R. v. Farrugia, 2012 ONCJ 830, [2012] O.J. No. 6341(Ont. C.J.) at para 105-110, I find that the information from the confidential informants was:
a) very compelling;
b) provided, in the case of Sources A and C, by an informant who had proven reliable on multiple occasions;
c) corroborated in a number of respects including:
i. Mr. Abdel-Gadir had a Hamilton residence, and a Mississauga condominium with storage lockers.
ii. that Ali Ali had moved from Mississauga and was associated with known criminals in Hamilton on June 8, 2011.
iii. the price of an ounce of cocaine.
iv. that Mr. Abdel-Gadir was associated with a man named Mostafa Kulam and that he used the nickname “Flip”.
v. that Mr. Abdel-Gadir had a good friend who lived in the Mississauga building.
vi. that a storage locker did contain a chest style top mount freezer
vii. the fact of multiple sources identifying Mr. Abdel-Gadir as a drug dealer.
[54] I am, therefore, satisfied on the basis of the unredacted ITOs that the authorizing justice could properly have authorized the search warrants.
C. Sub-Facial Validity
[55] The reference to May 18, 2011, and the information attributed to Source C on that date must be excised. The record is, however, amplified by the evidence of Det. Cst. Moore, as to the information he in fact received in September, 2010 which was that Mr. Abdel-Gadir purchased 10 – 20 pounds of marijuana at a time, but only kept a few ounces in his actual apartment.
[56] I am, satisfied that after excising the evidence that was fabricated, and amplifying the record with the accurate evidence of Det. Cst. Moore, the authorizing justice could properly have authorized the search warrants.
ISSUE THREE - SHOULD THE EVIDENCE BE EXCLUDED UNDER SECTION 24(2) OF THE CHARTER?
[57] The Crown submitted, and I agree, that since Mr. Abdel-Gadir denies any knowledge of the storage lockers in which the handguns and drugs were found he has no standing to challenge those searches. It remains, however, that the searches of those lockers was closely connected to and resulted from the immediately preceding searches of Mr. Abdel-Gadir’s residences. The unlawful search of the Mississauga condominium and its associated storage locker led to the discovery of Stanley lock packaging and the discovery that other lockers had similar Stanley locks. The unlawful search of the Hamilton residence yielded the Stanley lock keys.
[58] In accordance with the principles in R v. Goldhart 1996 214 (SCC), [1996] 2 S.C.R. 463 I am satisfied that the handguns and drugs were obtained in a manner that infringed Mr. Abdel-Gadir’s Charter rights. As in Goldhart, “the unbroken temporal link between the warrantless search and the seizure permitted these two events to be treated as part of a single transaction” (para 38).
[59] In R v. Grant 2009 SCC 32, [2009] 2 S.C.R. 353, McLachlin C.J. and Charron J. summarized the general principles which guide a s.24(2) Charter analysis at paragraphs 71-84 and then continued as follows:
[85] To review, the three lines of inquiry identified above — the seriousness of the Charter -infringing state conduct, the impact of the breach on the Charter -protected interests of the accused, and the societal interest in an adjudication on the merits — reflect what the s. 24(2) judge must consider in assessing the effect of admission of the evidence on the repute of the administration of justice. Having made these inquiries, which encapsulate consideration of “all the circumstances” of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute.
[86] In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to be struck. Mathematical precision is obviously not possible. However, the preceding analysis creates a decision tree, albeit more flexible than the Stillman self-incrimination test. We believe this to be required by the words of s. 24(2). We also take comfort in the fact that patterns emerge with respect to particular types of evidence. These patterns serve as guides to judges faced with s. 24(2) applications in future cases. In this way, a measure of certainty is achieved. Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination.
[60] I now turn to the Grant analysis. First, the Charter breach is extremely serious. The warrants authorized the search of two residences. As stated in Grant:
Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. (para.75)
[61] Secondly, Mr. Abdel-Gadir had a very high expectation of privacy in his residences. There is a great risk that, to paraphrase Grant, admitting this evidence would send a message to the public that Charter rights have little actual value. This would breed public cynicism and tend to bring the administration of justice into disrepute.
[62] Thirdly, because the handguns and drugs are real evidence, their admission would best serve the truth-seeking function of a criminal trial. The handguns and drugs are central to the Crown case. I also recognize that these are very serious charges. The focus of s. 24(2) of the Charter is, however, on the long-term repute of the administration of justice.
[63] Weighing these factors, I reach the conclusion that to admit the guns and drugs, that were obtained by a police officer deliberately misleading the authorizing justice and deliberately breaching Mr. Abdel-Gadir’s Charter rights, would bring the administration of justice into disrepute. The handguns, drugs and other items seized on June 9, 2011 by the HPS and PRP are, therefore, excluded.
ISSUE FOUR - ADMISSIBILITY OF STATEMENTS
[64] P.C. Antonucci of the HRP testified that on the basis of the information in the search warrant he placed Mr. Abdel-Gadir under arrest at his Hamilton residence. At 7:12 a.m. on June 11, 2011 he read Mr. Abdel-Gadir the standard rights to counsel and police caution. Mr. Abdel-Gadir indicated he understood. When asked if he wished to speak to a lawyer Mr. Abdel-Gadir responded “No, I represent myself”. P.C. Antonucci then waited with Mr. Abdel-Gadir until 7:54. He then handed custody of Mr. Abdel-Gadir over to P.C. Harrison of the HPS for the purpose of transporting Mr. Abdel-Gadir.
[65] In cross-examination P.C. Antonucci acknowledged that while he made some notes immediately after the arrest, he initially forgot to make a note that he had read Mr. Abdel-Gadir his rights and cautioned him. He did not note that until approximately noon the same day after he had returned to his office.
[66] P.C. Harrison testified that he took custody of Mr. Abdel-Gadir and left the scene at 8:06 a.m. They arrived at the Central Station at 8:22 a.m. at which time Mr. Abdel-Gadir was lodged in the cells there. At 11:03 a.m. he once again took custody of Mr. Abdel-Gadir and, accompanied by P.C. Robinson, transported him to PRP – 12 Division on Dixie Road where he was handed over to the custody of P.C. Langdon of the PRP at 12:47 p.m. P.C. Langdon also advised Mr. Abdel-Gadir of his right to counsel and read him the standard police caution at 2:16 p.m. at the beginning of Mr. Abdel-Gadir’s videotaped interview.
[67] A further video and audio recorded interview conducted by P.C. Langdon and P.C. Lennon took place from 7:54 p.m. – 10:02 p.m. The tone of the interview was friendly and conversational. At no time did Mr. Abdel-Gadir express any reluctance to answer questions. All of the officers having any significant contact with Mr. Abdel-Gadir testified that at no time were any promises, inducements or threats made to Mr. Abdel-Gadir.
[68] Mr. Abdel-Gadir testified on the voir dire. He denied that P.C. Antonucci had read him his right to counsel and caution. Mr. Abdel-Gadir did not take issue with the other police evidence that there had been no promises, inducements or threats.
[69] The principles set out in R v. Oickle, 2000 SCC 38, [2000] S.C.J. No. 38 are well known and I will not recite them.
[70] As to voluntariness, the evidence of the officers that there were no threats, promises or inducements was not challenged in cross-examination. Mr. Abdel-Gadir did not testify to any facts that would call into question voluntariness. The DVD makes it clear that the tone of the interview was non-threatening. I am easily satisfied beyond a reasonable doubt that the statements by Mr. Abdel-Gadir were voluntary.
[71] Mr. Abdel-Gadir submits that his s.10(a) and (b) Charter rights were violated in that the HPS in fact never advised Mr. Abdel-Gadir of his right to counsel or cautioned him and the PRP only did so approximately seven hours after his arrest by the HPS and approximately 90 minutes after he was placed into the custody of the PRP.
[72] I am satisfied that P.C. Antonucci read Mr. Abdel-Gadir his rights to counsel and cautioned him at the time of his arrest. His only involvement was to help execute the search warrant. He had no animus toward Mr. Abdel-Gadir. He gave his evidence in a straight forward manner. I accept that the delay of a few hours in noting that he had given the rights to counsel and caution was an innocent oversight.
[73] As such there was no infringement of Mr. Abdel-Gadir’s s. 10(a) and (b) Charter rights. Mr. Abdel-Gadir’s statements to police were voluntary and are, therefore, admissible.
CONCLUSION
[74] This matter was handled capably and professionally by Crown and defence counsel. While it is unfortunate that reliable evidence must be excluded, in the unusual circumstances of this case it is necessary in the long term interests of justice.
Sproat J.
Released: November 3, 2015
COURT FILE NO.: CRIM (J) P 677/13
DATE: 20151103
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SAMIR ABDEL-GADIR
- and –
HER MAJESTY THE QUEEN
REASONS FOR DECISION
DEFENCE CHARTER APPLICATION – SECTIONS 7, 8, 9, 10(a) and (b) and 11(d)
CROWN APPLICATION TO ADMIT STATEMENT
SPROAT J.
Released: November 3, 2015