ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR12900007160000

DATE: 20150119

BETWEEN:

HER MAJESTY THE QUEEN

– and –

AHMED HUSSEIN

Hafeez Amarshi, for the Crown

Andrew Stastny, for Ahmed Hussein

HEARD: November 24, 25 and 26, 2014

HAINEY J.

REASONS FOR DECISION ON APPLICATION TO EXCLUDE EVIDENCE

Overview

1Mr. Hussein is charged with possession of crack cocaine for the purpose of trafficking and possession of proceeds of crime.

2The charges arise as a result of the execution of a Controlled Drugs and Substances Act telewarrant by the Toronto Police Service at Mr. Hussein’s residence located at 25 Henry Lane Terrace, Unit 529, in the City of Toronto.

3During the search of Mr. Hussein’s apartment at around 6:39 a.m. on July 21, 2011, the police seized approximately 62 grams of crack cocaine that has a value of between $2,214 and $12,556, and $660 in cash.

4At the commencement of his trial Mr. Hussein brought an application for an order pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms excluding the evidence seized during the search because he alleges that his rights under sections 8 and 10(b) of the Charter were violated by the police. Specifically, Mr. Hussein alleges that his Charter-rights were violated because of the following:

a) The Information to Obtain the Search Warrant (“ITO”) did not comply with section 478.1(4) of the Criminal Code because there was no statement by the affiant as to why it was impracticable for him to appear personally before a justice of the peace to apply for the search warrant;

b) The police failed to comply with section 487.1(7) of the Criminal Code because they did not give a copy of the telewarrant to him; and

c) His rights under section 11(b) of the Charter were violated because he was denied an opportunity to consult with counsel after he made it clear that he wished to do so. Mr. Hussein submits that this also added to the unreasonableness of the search and strongly supports the exclusion of the evidence seized.

5On November 26, 2014, I dismissed Mr. Hussein’s application and indicated that I would provide written Reasons for my Decision.

Facts

6The evidentiary record on the Application is as follows:

(a) The testimony of P.C. Preston Scott who was the affiant of the ITO;

(b) The ITO and the telewarrant;

(c) The booking video of Mr. Hussein at Number 51 Division;

(d) A Toronto Police Procedure Memorandum regarding Telewarrants that outlines the procedure to be used by the police for obtaining telewarrants;

(e) An agreed statement of facts relating to P.C. Preston Scott;

(f) An expert report prepared by Detective Earle Davies regarding the crack cocaine that was seized;

(g) The viva voce testimony of:

(i) Mr. Hussein;

(ii) P.C. Jesse Dean;

(iii) P.C. Domenic Seguin;

(iv) P.C. Christopher Cooper; and

(v) P.C. Domenic Altobello.

7I intend to briefly review the evidence that is relevant to the issues raised by Mr. Hussein on the Application. I will analyze each alleged Charter violation separately.

ISSUE # 1 – Obtaining the Telewarrant Contrary to Section 487.1(4)

8There is no dispute that the ITO is silent as to why it was impracticable for P.C. Scott to appear personally before a justice of the peace to apply for the search warrant. The ITO reads in part as follows:

The Informant says that he/she has reasonable grounds for believing and does believe that it is impracticable to appear before a Justice of the Peace in person to request this warrant, for the following reasons:

See Appendix “C”

9Appendix “C” does not contain any information as to why it was impracticable to appear in person to request the warrant. P.C. Scott was cross-examined at the preliminary inquiry on this omission and gave the following evidence:

A. The entire warrant explains it to the Justice of the Peace. In reading the warrant obviously the evidence is in that place and I hadn’t sent the warrant off until it was impractical for me to arrive before a Justice of the Peace. It’s self explanatory. If I had afforded myself the opportunity to appear before a Justice of the Peace I would have. After 4:00 p.m. I am absolutely not allowed to appear before a Justice of the Peace.

Q. All right, I sort of … I think I understand what you are saying but I mean just as a lay… you know, treat me as a lay person. I don’t know anything about the process about how you obtain a search warrant and, you know, the procedure for going in front of a Justice of the Peace so it is something new for me. So in the top of your Information to Obtain it says, “the informant says that he/she had reasonable grounds for believing and does believe that it is impracticable to appear before a Justice of the Peace in person to request this warrant for the following reasons -”, and it gives you three lines to write your reasons why it’s impracticable. But you say instead, “Refer to Appendix C”. When I go to Appendix C I don’t see anything in there that says it was impracticable for me to appear before a Justice of the Peace because it’s after 4:00 p.m. So can you explain… are you just saying that it’s supposed to be… that it’s self evident to the Justice of the Peace why it’s impracticable that you don’t need to put anything in there?

A. Well if they are getting a fax and they sign the search warrant then they agree that it’s impractical for me to appear before a Justice of the Peace in person. Toronto Police Procedure tells us after 4:00 p.m. on any given weekday we no longer have the right to appear before a Justice of the Peace. Actually I have a Toronto Police Procedure form here which says, “A centralized 24 hour facsimile warrant service has been implemented by the Ministry of the Attorney General, the Ministry of the Solicitor General and Correctional Services and the Ontario Association of the Chiefs of Police. As of December 1st, 1997, a Justice of the Peace will no longer be assigned to Intake Court beyond the regular hours of 9:00 a.m. to 4:00 p.m. Monday to Friday. During afterhours police officers must apply for a warrant by referring to the JP Duty Roster except for Applications which fall under the Telewarrant Provisions. JPs who are on call to provide afterhours services will no longer issue the following warrants which are through the Telewarrant Services”. They list warrants and one of them being search warrants for a controlled drug or substance or offence related to property under section 11 of the Controlled Drugs and Substances Act.

10The Toronto Police Procedure Memorandum regarding Telewarrants makes it clear that police officers in Toronto cannot appear personally before justices of the peace to request Controlled Drugs and Substances Act search warrants after 4 p.m. on weekdays and must apply for telewarrants for such searches.

ANALYSIS – ISSUE # 1

11Section 487.1(4) of the Criminal Code requires that an ITO for a telewarrant must include:

A statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice.

12Crown counsel concedes that P.C. Scott’s ITO does not comply with section 487.l (4) of the Criminal Code. The telewarrant relied upon by the police to enter and search Mr. Hussein’s apartment was, therefore, not valid. The telewarrant could not have been properly issued by the justice of the peace in the absence of an explanation in the ITO as to why it was impracticable for P.C. Scott to appear personally to request the search warrant.

13The entry by the police and the search of Mr. Hussein’s apartment was, therefore, a warrantless search that violated his rights under section 8 of the Charter.

ISSUE # 2 – Breach of Section 487.1(7)

14Mr. Hussein testified that he was asleep in his bedroom when the police entered his apartment after ramming open the door. He was arrested and handcuffed and made to sit on the floor near the kitchen.

15According to Mr. Hussein, he was not shown any “papers” and was not told by the police why they were searching his apartment. He was adamant that he was never shown a copy of the telewarrant.

16Further, he testified that when he asked the officers what was happening he was told by the officer who was searching his kitchen to “shut up or I will kick you in the balls”.

17The video of Mr. Hussein in the booking hall of Number 51 Division recorded him saying “I was not shown the search warrant, I was not shown the warrant; I was not read my rights”. This occurred at 7:32 a.m., approximately one hour after the search of his apartment began.

18At the preliminary inquiry P.C. Scott testified that he presented Mr. Hussein with a copy of the telewarrant. His evidence on this issue was as follows:

A. Yes, absolutely. He was advised there was a search warrant. I mean that was made evident to him when we rammed the door and came through yelling, “Police, search warrant” obviously, you know, he was presented with a copy of that warrant. I did speak with him. He went on about how he is a security guard and not involved in the drug trade and this and that.

Q. Okay, so you are saying that you did show him a copy of the warrant?

A. Yes, sir.

19None of the other police officers who testified observed P.C. Scott present Mr. Hussein with the telewarrant. However, P.C. Jesse Dean, who arrested Mr. Hussein in his bedroom, testified that it was their normal practice to leave a copy of the search warrant in the premises.

Analysis - Issue # 2

20I did not find Mr. Hussein to be a credible witness. He did not answer questions directly and he appeared to me to be tailoring his evidence. He also appeared to deliberately downplay his ability to understand and speak English. Although he testified through a Somalian interpreter, he frequently spoke English during his testimony. In the booking video he appears able to communicate effectively with the booking officer in English. I do not accept his evidence that he cannot communicate effectively in English.

21Further, his version of events was contradicted in a number of respects by the evidence of the police officers, whose evidence I accept. These contradictions include the following:

(a) Mr. Hussein testified that he was never informed why he was under arrest or why the police were searching his apartment. This was contradicted by P.C. Dean who arrested Mr. Hussein in his bedroom. P.C. Dean testified that he told Mr. Hussein that he was under arrest for possession of crack cocaine for the purpose of trafficking. He also testified that when they entered the apartment all of the police officers were yelling loudly “Police, search warrant”. P.C. Seguin testified that Mr. Hussein was turned over to him at 7:17 a.m. in the lobby of the apartment building. He testified that he advised Mr. Hussein that he was under arrest for possession of cocaine for the purpose of trafficking and read him his right to counsel from the back of his notebook. P.C. Seguin testified that he asked Mr. Hussein if he understood and he replied “Ya, I do”. P.C. Cooper was with P.C. Seguin when Mr. Hussein was turned over to him. He heard the officer who turned him over say in front of Mr. Hussein that he was charged with possession of drugs for the purpose of trafficking. He also heard P.C. Seguin read him his right to counsel from his notebook.

(b) Mr. Hussein testified that the officer who was searching his kitchen was the shortest of the officers and had a beard. This officer told him to shut up or he “would kick him in the balls”. P.C. Altobello testified that he searched Mr. Hussein’s kitchen. He also testified that he had a beard at the time and was the shortest officer involved in the search. He denied that he had said this to Mr. Hussein or that he had threatened him in any way. He also testified that he had heard no one else threaten Mr. Hussein in any way. I accept P.C. Altobello’s version of events. I do not accept Mr. Hussein’s evidence that he was threatened by P.C. Altobello or any of the other officers involved in the search.

(c) Mr. Hussein testified that he was never shown a copy of the telewarrant. P.C. Scott’s evidence at the preliminary inquiry was clear that he presented Mr. Hussein with a copy of the telewarrant. I accept P.C. Scott’s version of events. I do not accept Mr. Hussein’s testimony on this issue.

22Mr. Hussein has not satisfied me that the police failed to comply with section 487.1(7) of the Criminal Code. I find that he was presented with a copy of the telewarrant during the search by P.C. Scott. I also find, on the strength of P.C. Dean’s evidence, that it is more likely than not that a copy of the telewarrant was left in his apartment by P.C. Scott.

ISSUE # 3 – Violation of Mr. Hussein’s Section 10(b) Rights

23Mr. Hussein testified that he was never advised of his right to counsel and that he was never provided with an opportunity to speak to a lawyer either at his residence during the search or later while he was held in custody at Number 51 Division.

24As I have already indicated P.C. Dean arrested Mr. Hussein in his bedroom. He testified that he was accompanied into the bedroom by P.C. Dobbs who he heard advise Mr. Hussein of his right to counsel. P.C. Seguin testified that he also advised Mr. Hussein of his right to counsel when Mr. Hussein was turned over to him in the lobby of the apartment building. P.C. Cooper testified that he heard P.C. Seguin advise Mr. Hussein of his right to counsel at the time.

25Further, on the booking video, the booking officer can be heard advising Mr. Hussein of his right to counsel and discussing with him the fact that he would be provided with an opportunity to telephone a lawyer while in custody at Number 51 Division.

26The booking officer was recorded saying the following to Mr. Hussein:

…We can find the number, that’s not a problem…You will also be allowed reasonable use of the telephone while you are with us, and if for some reason you can’t find the phone number for that lawyer, or you choose not to use that lawyer, there is a service run by the Ontario government called the Ontario Legal Aid Plan, it’s paid for, free lawyer for you to talk to on the telephone, in private, and it’s paid for by the Ontario government, and it’s called the Ontario Legal Aid Plan, duty counsel is what it’s commonly called…so if you decide to do that, you can speak to these officers and they’ll get you that phone number.

27Mr. Hussein was then taken to another room for a level 3 search. Five minutes later he was returned to the booking hall where the booking officer was recorded saying “The officers are going to assist you with that phone call.”

28Approximately two hours later Mr. Hussein was returned to the booking hall with P.C. Scott. The video recorded the booking officer asking P.C. Scott, “Officer, has he had use of the telephone?” P.C. Scott responded “Yes, he has”. According to the agreed statement of facts, P.C. Scott does not believe that he would have told the booking officer that Mr. Hussein had used the telephone if at the time he had not believed it to be true. Further, according to P.C. Scott, at the time he made that statement he believed that Mr. Hussein had used the telephone to contact a lawyer.

Analysis - Issue # 3

29I have already indicated why I do not find Mr. Hussein to be a credible witness. I find that the evidence of the police officers establishes that he was advised of his right to counsel twice before he arrived at Number 51 Division and again in the booking hall there. I, therefore, do not accept Mr. Hussein’s evidence that he was not advised of his right to counsel.

30Further, on the strength of P.C. Scott’s evidence contained in the agreed statement of facts, I find that it is more probable than not that Mr. Hussein was given an opportunity to use a telephone to call a lawyer while he was being held in custody at Number 51 Division.

31Mr. Hussein has failed to satisfy me that his rights under section 10(b) of the Charter of Rights and Freedoms were violated.

Section 24(2) Analysis

32For the reasons I have outlined above I find that Mr. Hussein’s rights under section 8 of the Charter were violated because the telewarrant relied upon by the police to enter and search his apartment was not valid because P.C. Scott failed to comply with section 487.1(4) of the Criminal Code.

33Under section 24(2) of the Charter I must consider whether the evidence seized by the police should be admitted into evidence notwithstanding that I have found that Mr. Hussein’s Charter rights were violated. This requires me to engage in a balancing exercise and consider the following factors:

(a) The seriousness of the Charter-infringing conduct;

(b) The impact of the breach on Mr. Hussein’s Charter-protected interests; and

(c) Society’s interest in the adjudication of the case on its merits.

34Having considered these factors I must then determine whether Mr. Hussein has satisfied me on a balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute.

Seriousness of the Charter-Infringing Conduct

35This factor involves the assessment of the police conduct to determine where it fits on a continuum ranging from intentionally misleading conduct at one end to mere inadvertence at the other end. In R. v. Rocha, 2012 ONCA 707, [2012] O.J. No. 4991, Rosenberg J.A. stated at paragraph 29 as follows:

The approach rather should be to look at the ITO and consider first if it is misleading in any way. If so, the court should then consider where it lies on the continuum from the intentional use of false and misleading information at one end to mere inadvertence at the other end.

In considering the seriousness of the Charter-infringing conduct I must determine whether the conduct was serious or minor, severe or innocuous, deliberate or unintentional or willful or negligent. The more deliberate the state conduct that violated Charter rights the more likely the evidence will be excluded.

36Mr. Stastny, on behalf of Mr. Hussein, submits that P.C. Scott’s omission of the reason it was impracticable for him to appear before a justice of the peace in person to request the search warrant was willful and misleading. He argues that his defiant attitude toward an obvious deficiency in the process suggests that he was reckless toward the standards required for the issuance of a telewarrant and that this was part of a “pattern of abuse” on the part of P.C. Scott. According to Mr. Stastny, P.C. Scott’s Charter-infringing conduct is at the more serious end of the continuum.

37Mr. Amarshi, on behalf of the Crown, submits that P.C. Scott’s failure to include in the ITO the reason it was impracticable to appear before a justice of the peace personally was merely a “sloppy drafting error”. He characterizes it as a technical breach of the Criminal Code. According to Mr. Amarshi, there was no attempt on the part of P.C. Scott to mislead the justice of the peace and the justice was not misled. This is because the ITO was submitted to the justice of the peace at 7:40 p.m. According to Mr. Amarshi, the justice of the peace would have known that no justices were available for P.C. Scott to appear before personally to request the search warrant at that time.

38In R. v. Lacelle, 2013 ONCA 390, the Ontario Court of Appeal considered whether an ITO complied with section 487.1(4) of the Code. At paragraph 11 the Court stated as follows:

The first line of inquiry under Grant is into the seriousness of the Charter-infringing conduct. In R. v. Lao, 2013 ONCA 285 (Ont. C.A.), at para. 75, this court found that “the use of the telewarrant process without having adequately demonstrated that it was impractical to appear in person” did not amount to a serious Charter breach. See also R. v. Farewell, 2008 BCCA 9 (B.C. C.A.) at para. 43.

39I am satisfied that P.C. Scott did not intend to mislead the justice of the peace. In fact it is clear from the Toronto Police Procedure Memorandum regarding Telewarrants that it was not possible for him to appear personally before a justice of the peace to request a search warrant because no justices of the peace were available at that time. I am also satisfied that Justice of the Peace Malik, who issued the telewarrant, would have been aware of this fact.

40I find that P.C. Scott’s omission was more a matter of form than substance. In view of this and the Ontario Court of Appeal’s decisions in R. v. Lacelle and R. v. Lao, I find that the Charter-infringing conduct falls at the less serious end of the continuum. There is no aspect of P.C. Scott’s conduct from which the court must disassociate itself.

41For these reasons, this factor is neutral with respect to the exclusion of the evidence.

Impact of the Breach on Mr. Hussein’s Charter-protected Interests

42Crown counsel concedes that the warrantless search of Mr. Hussein’s home had a serious impact on his Charter-protected interests.

43I agree that the Charter breach had a significant impact on his Charter-protected rights. For this reason, this factor favours exclusion of the evidence.

Society’s Interest in the Adjudication of the Case on the Merits

44The principal factor to consider for this line of inquiry is the reliability of the evidence seized. As the majority of the Supreme Court of Canada said in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at paragraph 81:

…exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.

45The evidence seized in this case is very relevant and reliable. The charges against Mr. Hussein are most serious. There is no question that society has a strong interest in the trial of these charges on the merits.

46For these reasons, this factor strongly favours inclusion of the evidence.

Balancing the Three Factors

47The Supreme Court of Canada described the balancing exercise that must be conducted under section 24(2) in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at paragraph 36 as follows:

The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.

48In R. v. Blake, 2010 ONCA 1, [2010] O.J. No. 48, in which the Ontario Court of Appeal upheld the admission of evidence obtained in violation of section 8 of the Charter following a section 24(2) analysis, Doherty J.A. stated at paragraph 33:

If there were a taint of impropriety, or even inattention to constitutional standards, to be found in the police conduct, that might well be enough to tip the scales in favour of exclusion, given the very deleterious effect on the accused’s legitimate privacy interests.

49The charges against Mr. Hussein are most serious involving an allegation that he was in possession of 62 grams of crack cocaine for the purpose of trafficking.

50The evidence seized is reliable and important. It is crucial to the Crown’s case. Society clearly has a strong interest in the trial of these types of offences. Crack cocaine is an extremely dangerous drug that causes much harm to society. The impact on Mr. Hussein’s Charter-protected rights was significant. His home was subjected to a warrantless search by police. However, there was no misconduct or bad faith on the part of the police. I find that there were no intentional violations of Mr. Hussein’s constitutional rights.

51Having balanced all of the relevant factors I have concluded that to admit the evidence seized by the police would not damage the long-term repute of the administration of justice. The evidence is, therefore, admitted.

Conclusion

52I have concluded for the reasons I have outlined that the evidence should not be excluded under section 24(2) of the Charter. Mr. Hussein’s application pursuant to sections 8, 10(b) and 24(2) of the Charter is, therefore, dismissed.

53I want to thank counsel for their helpful submissions.

HAINEY J.

Released: January 19, 2015

CITATION: R. v. Hussein, 2015 ONSC 362

COURT FILE NO.: CR12900007160000

DATE: 20150119

ONTARIO

SUPERIOR COURT OF JUSTICE

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