R. v. Mohammed, 2015 ONSC 905

CITATION: R. v. Mohammed, 2015 ONSC 905

COURT FILE NO.: 11-10307 Ottawa

DATE: 2015/02/09

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Soulieman Mohammed

Applicant

Elisabeth Foxton, Counsel for the Crown

Michael S. Purcell, Counsel for the Accused

HEARD: November 12, 13, 17, 18, 19, 21, 2014 and January 6, 2015

RULING ON CHARTER STATEMENT APPLICATION

judge: Leroy, j.

Part 1: OVERVIEW

[1] The Applicant made in-custody statements to police and was in possession of a stolen wallet when arrested. He moves to exclude the testimonial and derivative evidence from the trial under subsection 24(2) of the Charter. The Prosecution seeks a determination that the statements were voluntarily given and admissible and that the interaction between the State and Applicant was Charter breach-free or, if not, then the impugned evidence is admissible at trial on application of the R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 factors.

[2] The accused Soulieman Mohammed is charged in a seven-count Indictment with offences relating to a robbery on June 28, 2011. He is charged with one count of possession of a weapon, two counts of uttering threats, two counts of forcible confinement, one count of being unlawfully in a dwelling house and one count of conspiracy to commit an indictable offence.

[3] He was arrested in the early morning of July 1st, 2011. He was driving a car with two passengers. His wallet belonged to one of the home invasion victims. The co-accused passengers asserted ownership of a computer and cell phones in the car belonging to the home invasion victims.

[4] The accused contests the lawfulness of the July 1st arrest. He accepts that the officers had the grounds for reasonable suspicion, sufficient to instigate a less intrusive inquiry in the context of an investigative detention, but denies the officers had reasonable and probable grounds to substantiate an arrest.

[5] In respect to the drug investigation, the Applicant submits that his ss. 7, 9, 10(a) and (b) Charter rights were breached during the course of the investigation in the following manner:

i. the arrest was arbitrary;

ii. he was overheld during the period immediately following his arrest and until his first statement;

iii. he was not taken before a justice within 24 hours;

iv. he was overheld after the statement to Detective Pilotte; and

v. he was not properly afforded his rights to counsel or advised of the reasons for ongoing detention.

[6] In respect to the robbery investigation, the Applicant submits that his ss. 7, 8, 9 and 10(a) Charter rights were breached as follows:

i. the search and seizure of his property was unreasonable as it was not authorized by law;

ii. he was not advised of the reasons for his ongoing detention on completion of the drug investigation;

iii. he was not properly advised of the charge of jeopardy; and

iv. he was denied right to counsel.

[7] The accused did not testify. Defence evidence comprised testimony from counsel who advised the accused during two consultations on July 1, the first relative to the HTA, LLA and CDSA charges and the second relative to those before the Court today.

[8] The parties agreed to a mixed voir dire.

[9] The impugned search conducted on July 1, 2011 was without warrant and, save to the extent it were validly incident to arrest or investigative detention or authorized by statute, is presumed unreasonable. The Crown bears the evidentiary burden of showing the searches to be reasonable and the confession voluntary. The defence bears the burden of proving on a balance of probabilities that the Applicant’s constitutionally protected rights under the Charter were infringed and that, having regard to all the circumstances, the admission of resulting evidence would bring the administration of justice into disrepute.

[10] Factored in the analysis is detention imposed to accommodate the practice policy of Ottawa-Carleton Police Services to separate arrest and charge functions for indictable drug and Criminal Code offences. In the typical situation, the patrol officers will assess reasonable and probable grounds for arrest in the field. The decision to lay charges lies with detectives dedicated to their particular area of specialty after a more fulsome investigation.

[11] The defence recognizes the targeted efficiencies but contests efficacy once the paradigm shifts to administrative convenience over Code and Charter rights.

Part 2: The Drug Investigation.

Arrest, Arbitrary or Legal?

July 1, 2011

[12] The issue is whether the arresting officers had evidence to affix knowledge, consent and control of the marijuana in possession of the passengers to the Applicant.

[13] This began with a middle of the night traffic stop. Constable Bellefeuille observed a Honda rapidly enter the roadway from a parked position a short distance to his front, lights off. It turned onto the first side street. He determined to stop the vehicle to address the no-lights issue. He activated his emergency lights and followed. The Honda stalled and came to rest in an awkward angle to the curb shortly after the turn.

[14] The vehicle was not licenced. The licence plate was issued to another vehicle and had expired in 2008. He approached the vehicle to the driver side window and asked the driver if he realized he was driving without lights. He did not record a response. He solicited the driver’s licence which was a G1 licence level. He observed two other males in the vehicle, one in the front passenger and one in the back driver side. He observed open alcohol.

[15] That observation elevated the police safety aspect of the incident and he immediately radioed his operational cohort, Constable Mallon. Constables Mallon and Carl Keenan responded.

[16] Constable Bellefeuille advised the occupants they were detained relative to the Liquor Licence Act investigation.

[17] Open liquor in a vehicle is an offence under s. 32(1) Liquor Licence Act, R.S.O. 1980, c. 244 and crystallized grounds to demand passenger identification and search them and the vehicle without a warrant under s. 32(5). The Act provides that anyone in this situation who refuses to give his or her name and address or provides false identification can be arrested without warrant.

[18] Constable Bellefeuille turned his attention to the front seat passenger, Mr. Aden. He was the vehicle owner, having purchased it that day. He produced the vehicle permit indicating his name and address. Aden was grudgingly cooperative. To this point, the interaction was benign and there remained the prospect of Provincial Offence tickets after which arrangements to tow the unlicenced vehicle would be made and the three men would be sent on their way, Provincial Offence tickets in hand.

[19] Detention with consequences evolved quickly. The constable addressed the back seat passenger, Mohammed Shire. He refused to disclose identification. Constable Keenan arrived by foot at 12:42 a.m. within minutes of the stop. Constable Bellefeuille briefed Constable Keenan and indicated his intention to deal directly with the back seat passenger. He opened the rear door and asked Shire to exit and he did. He formed the intention to arrest this man for failing to identify himself, so advised him and arrested Mr. Shire. The search incident to arrest revealed marijuana speckles stuck to his back and a quantity of marijuana stuffed in his underwear half of which appeared to be packaged for street sale.

[20] Constable Bellefeuille said he believed he had grounds to arrest the three occupants of the vehicle under the CDSA for possession for the purpose of trafficking when he discovered the marijuana on Mr. Shire’s person.

[21] In that formulation, he said he considered the time of night, the circumstances of the stop, the unlicenced vehicle, the open alcohol, Shire’s intransigence and the discovery of 32 small packages of marijuana.

[22] The front seat passenger, Aden, was arrested for the same offence. He carried a small quantity of marijuana in small packages on his person.

[23] The Applicant was not carrying drugs and, aside from the drugs discovered on the passengers, none were near him in the car. The accused was cooperative. No other drugs were found in the vehicle. Constable Bellefeuille did not observe any indicia of drug trafficking prior to the Shire search.

[24] The accused was arrested, at 12:49, for the offence of possession for the purpose of trafficking. There was a brief delay while Mallon and Keenan in sequence retrieved their vehicles. On arrival with her vehicle, Mr. Mohammed was placed in the rear of Constable Mallon’s cruiser. She complied with the informational components of s. 7 and s. 10 in the cruiser between 1:12 and 1:14. He was taken to the police station and spoke to his counsel of choice, Peter Beach at 2:22 a.m.

[25] Mr. Mohammed told Constable Mallon that he dropped his wallet (the stolen wallet) when he exited the vehicle and asked her to retrieve, which she did.

Reasonable and Probable Grounds for Arrest under the Aegis of Possession for the Purpose of Trafficking

[26] The Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base an arrest. In addition, a reasonable person in the officer’s position must be able to conclude there were reasonable and probable grounds for the arrest.

[27] The accused contests the subjective and objective grounds for arresting him on the charge of possession of a controlled substance for the purpose of trafficking. No drugs were located on or near him. From the beginning, Mr. Mohammed denied knowledge of the substance carried by his cohorts. Constable Keenan aside, the investigating officers did not smell green or burnt marijuana and did not find any papers, roaches or flakes in the car.

[28] There is more than one route to culpability. Everyone is party to an offence who actually commits the offence, does or omits to do anything for the purpose of aiding any person to commit it, or abets any person in committing it or who was a joint venturer as delineated in s. 21(2) of the Criminal Code. There is no evidence of aiding, abetting or a joint venture.

[29] Where anyone of two or more persons, with the knowledge and consent of the others has a substance in his/her possession or custody, all of them are in possession of that substance, provided s/he has some control over that substance.

[30] The accused was the driver, ostensibly from initial appearances with some degree of control over the vehicle. The vehicle was clean. There was no evidence of knowledge and control over the substance carried by Aden and Shire.

[31] The central issue for further investigation was whether the accused had knowledge of the marijuana his passengers were carrying.

[32] There is a discernible progression in grounds required for general information encounters at one end of the spectrum, to investigative detentions to those that merit an arrest and search at the other end.

[33] Without reasonable suspicion, a police officer can ask questions of any person but lacks the power to compel response. An officer does not have the right to detain for questioning or for further questioning.

[34] An officer can conduct an investigative detention when, based on the whole picture, he or she has a particularized and objective basis for suspecting the person stopped for criminal activity. Defence concedes there was a particularized and objective basis for such suspicion.

[35] To get to the point of arrest, the police must have reasonable and probable grounds to believe that the accused committed the offence of possession for the purpose of trafficking marijuana. These grounds are contested.

[36] The objective reasonableness of the grounds for arrest are viewed through the lens of the arresting officers. What was reasonable? Reasonable grounds means an honest belief in the guilt of the accused based on a full conviction, founded on reasonable grounds of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinary prudent and cautious person placed in the position of the accuser, to the conclusion that the person arrested was probably guilty of the crime alleged – R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241. In short, credibly-based probability – R. v. Baron et al (1993), 1993 CanLII 154 (SCC), 78 C.C.C. (3d) 510 (S.C.C.) at 531-2 per Sopinka J.

[37] Section 495 and s. 9 of the Charter demand that the belief be reasonable, meaning that a reasonable person standing in the shoes of the police officer is able to see the grounds for arrest. Without this objective component, the scope of the police power to arrest would be defined entirely by the police officer’s perception of the relevant circumstances. The individual’s constitutional right to be left alone by the State cannot be left exclusively to the officer’s subjective perception of events, regardless of how accurate that perception was. The issue is not the correctness of the officer’s belief, but the need to impose discernible, objectively measurable limits on police powers – R. v. Brown 2012 ONCA 225; a measure of reasonableness. Hunch and intuition as the basis for detention or arrest are a fast track to discriminatory detention and exclusion of evidence under s. 24(2). In Brown, Constable Manafo acted on hunch, as did Constable Wilkins in R. v. Simpson, 1993 CanLII 3379 (ON CA), [1993] O.J. No. 308.

[38] Reasonable and probable grounds are not to be confused with a prima facie case for conviction. The judicial review is not intended to deconstruct the officer’s opinion in minute detail. The review amounts to more than a checklist to reasonable probable cause to arrest. Sometimes the grounds are obvious. Analytically, deficiencies in one or more pieces of the puzzle may be buttressed by strengths in other areas. The analysis is protean.

[39] In this case, there were particularized and objective basis for suspecting the person stopped for criminal activity of knowledge, consent and control. The factors relied on by Constable Bellefeuille informed that level of interest.

[40] I do not accept that an ordinary prudent and cautious person in the officer’s position would conclude that the Applicant was probably guilty of possession for the purpose of trafficking. There are too many innocent explanations.

[41] The prospect for conviction based on the known evidence was non-existent. The constable drew unsupportable inferences to get to reasonable and probable grounds to arrest the Applicant. He concluded knowledge, consent and control without any logically connecting evidence.

[42] No rebuttable presumption of knowledge and control for purposes of determining possession, based solely on the fact that a person is the operator with control of the vehicle, exists at common law or under the Controlled Drugs and Substances Act, S.C. 1996, c. 19. That would transfer the Crown’s burden of proof to the accused. While the fact that a person is the operator with control of the vehicle, together with other evidence, may enable a trial judge to infer knowledge and control in appropriate cases, it cannot, standing alone, create such a rebuttable presumption. See R. v. Watson, 2011 ONCA 437, at paras. 11-13- R. v. Lincoln, 2012 ONCA 542.

[43] In Lincoln, the accused was driving a rental, was stopped, cocaine was discovered in the steering column and he had the sum of $800 in his wallet. The trial judge incorrectly accepted the inference that control of the vehicle translated into knowledge of and control of the controlled substance and the money was proceeds of crime.

[44] In Lincoln, the grounds for arrest were valid. He had control over the vehicle and it contained the controlled substance. Here the drugs were secreted on the bodies of the passengers without olfactory indicators. There were no independent trafficking indicators. I cannot see how mere presence in a vehicle with friends carrying drugs attracts a possession arrest.

[45] The police decisions in the instant case are comparable to those made in by the arresting officers in R. v. Daoud, [2002] O.J. No. 4754. The ratio there was that mere presence at the scene of a crime does not affix liability. It is not good practice to arrest everyone at the scene for that reason alone.

[46] I agree with the defence submission to the point that Constable Bellefeuille was unsure of arrest grounds in respect to the Applicant, that he was unsure whether his grounds were reasonable and decided it was better to arrest and defer to the determination of the drug detectives whether to pursue the offence against him.

[47] The arrest was based on suspicion and ensuing unreasonable inference. The constables’ subjective belief could not have risen above suspicion of guilty knowledge, consent and control. The arrest was arbitrary and constituted a breach of the Applicant’s ss. 7 and 9 Charter rights.

Part 3: Overholding - S. 9 – Arbitrary Detention

[48] As my ruling is that the arrest was arbitrary, the ensuing detention was arbitrary and a continuing breach of the Applicant’s rights under the Charter and the Criminal Code.

[49] My analysis of this issue is free standing from the arrest issue. Aside from the arbitrary arrest, the delay in processing the Applicant was unreasonable.

[50] The detective interrogated Mr. Mohammed through the noon hour next day. His statement was exculpatory. She interrogated Mr. Aden and whatever he said eliminated the Applicant as party to the offence of possession for the purpose of trafficking in the eyes of the detective.

[51] She determined to not lay a charge against Mr. Mohammed. The detective did not keep notes but said it was her practice to complete booking documents for the three suspects simultaneously – 5:20 p.m. The prosecution submits that Mr. Mohammed was detained on the drug charges for 16.5 hours.

[52] For context, this was an arrest in relation to suspicion of possession for the purpose of trafficking marijuana. The amounts were small and there was little to connect the Applicant to the offence. In terms of continuing investigation, all that was left was prospect for interrogation.

[53] The detention overnight harmonized with the OPS screening practices designed to enhance charge efficiency. Detectives review and determine whether and what charges are to be laid when a person is arrested. The benefit to the accused person is that in situations where prosecution has little chance of success, the accused is cleared in the triage process.

[54] Overholding arises when an individual has been arrested and detained and then kept in custody longer than provided for by the provisions of the Criminal Code and/or in breach of their Charter rights.

[55] In this case, there were no drug enforcement detectives working overnight on June 30/July 1 and none were scheduled for the day shift July 1. The Sargent contacted the on-call Detective Pilotte who came on shift at 9:30 a.m. to un-package these arrests. This was her only file for the day. I accept that from the police perspective, the circumstances of the offences were not urgent and the services of a drug unit detective in the middle of the night served little purpose. It was a relatively minor drug arrest. The officer in charge should have released the Applicant on his recognizance.

[56] Overholding in impaired driving arrests is not uncommon. Two common reasons that overholding doesn’t gain much traction in the s. 24 analysis in those cases is that the police investigation is completed as soon as the Breathalyzer tests are complete and continued detention of the extremely impaired accused is merited on public and accused safety grounds. The State action is reasonable and the impact on the accused’s Charter interests is minimal.

[57] Overholding was the issue in R. v. Storrey (1990), 1990 CanLII 125 (SCC), 53 C.C.C. (3d) 316. The ratio there is that an arrest which is lawfully made, the officer having the requisite reasonable and probable grounds to believe the accused has committed an indictable offence, does not become unlawful simply because the officer intends to continue the investigation after the arrest by, for example, conducting a lineup. Storrey was detained for 18 hours before a formal charge was laid. The Court held that the elapsed time was not unreasonable having regard to the circumstances – reasonable desire of the officer to conduct an identification parade as soon as possible, the time of day and location of potential witnesses. Mr. Storrey was taken before the justice of the peace immediately after a positive identification was made.

[58] The circumstances of the extended detention in Storrey were such that the investigatory process was fully engaged through the 18 hours, the crime in issue was serious and the lineup was the most efficient method they had to move the file along. The lineup could have excluded Mr. Storrey as the offender.

[59] That is materially distinguishable from the circumstances in which Mr. Mohammed was detained. Possession of marijuana for the purpose of trafficking is not a crime that, of itself, merits continued detention. The instant circumstances fall into the paradigm for timely release in accordance with s. 498. He was detained overnight to accommodate the combination of OPS policy and unavailability of a detective. The policy is laudable so long as resources are in place to honour Charter and Code requirements. The investigation was essentially done. Overholding detention to accommodate shift scheduling is unreasonable and breached Mr. Mohammed’s s. 9 right to not be arbitrarily detained.

[60] Mr. Mohammed was not taken before a Justice of the Peace pursuant to s. 503 or within 24 hours of arrest. That too is arbitrary detention – R. v. Charles (1987), 59 C.R. (3d) 286 (Sask CA).

[61] But for the arbitrary detention, Mr. Mohammed would not have been exposed to the seizure and tracing of the wallet and the inculpatory statement under interrogation with Detective Jacobs. There is a direct cause and effect.

Rights to Counsel

[62] Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. The informational component includes the requirement that the detainee must be informed of the existence and availability of duty counsel and Legal Aid.

[63] The purpose of S. 10 rights is to ensure that the person understands generally the jeopardy in the situation. It is a gross interference with individual liberty for persons to have to submit to arrest without knowing the reasons and the right to counsel lacks substance without knowledge of the extent of jeopardy.

[64] The essence of the right to consult and instruct counsel lies in the presumption of innocence, the right to silence and the state burden of proof. The detainee has the right to an informed determination about whether s/he is going to cooperate with the police investigation or not.

[65] Mr. Mohammed was given appropriate notice from Constable Mellon regarding the s. 7 right to silence, counsel – 10(a) and opportunity. Mr. Mohammed was arrested at 12:49 a.m. and given rights to counsel at 1:11 a.m. Constable Mellon went to lengths to ensure discussion with counsel. At the police station cellblock, the accused was efficiently processed for intake and Constable Mallon quickly arranged opportunity for the accused to retain and instruct counsel. He was able to begin calling counsel at 2:06 a.m. After a few failed attempts at contact, the accused was able to speak directly with criminal defence counsel – Mr. Beach at 2:22 a.m. After their private discussion, the accused iterated a wish to speak with an investigator.

The First Interrogation with Detective Pilotte

[66] This interrogation began at 12:15 p.m., slightly less than ten hours after counsel consultation. Defence position is that Mr. Mohammed displayed some confusion in the lead up to the interview that retriggered attention. Defence submits that the passage of time since the consultation, the Applicant’s unfamiliarity with the criminal justice system and the apparent misapprehension of basic legal phrases and concepts necessitated cessation of questioning by Detective Pilotte and re-provision of the his s. 10(b) rights.

[67] Det. Pilotte began the interview by confirming that Mr. Mohammed had spoken with counsel and asked whether he was satisfied with it. She said that was her practice because there were times when a detainee could not make contact with legal counsel overnight and 10(b) implementation was incomplete.

[68] When she asked him what he could tell her about what happened last night, he said he wished to pass a sentence – give a sentence or something. She asked if he meant that he wished to make a statement and he affirmed.

[69] Mr. Purcell is correct in the proposition that the officer is required to take all reasonable steps to be sure the accused is aware of the Charter options – R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869. A person who does not understand his or her right cannot be expected to assert it.

[70] The jurisprudence does not extend the obligation on police to monitor the quality and understanding of the advice given and received.

[71] Unless a detainee indicates diligently and reasonably, that the advice s/he received is inadequate, the police may assume the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview. While s. 10(b) requires the police to afford a detainee a reasonable opportunity to contact counsel and to facilitate that contact, it does not require them to monitor the quality of the advice once contact is made. To impose such a duty on the police would be incompatible with the privileged nature of the solicitor-client relationship – R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429.

[72] The police must give the detainee the additional opportunity to receive advice from counsel where developments in the course of the investigation make this necessary to serve the purposes underlying s. 10(b).

[73] In the context of a custodial interrogation, the purpose of s. 10(b) is to support the detainee’s right to choose whether to cooperate with the police investigation or not, by giving them access to legal advice on the situation they are facing.

[74] What is required to retrigger the s. 10(b) right is a change in circumstances suggesting the choice faced by the detainee has been significantly altered. Changed circumstances may result from: new procedures involving the detainee; a change in the jeopardy facing the detainee; or reason to believe that the detainee may not have understood the initial advice of the right to counsel – R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310.

[75] None of those were evident when Det. Pilotte interviewed Mr. Mohammed. He was not confused about his Charter rights. When Constable Mellon told him about his right to speak with counsel he promptly confirmed his wish to do so. He talked with Mr. Beach and immediately declared a wish to make a statement. Nothing changed overnight.

Change Jeopardy

[76] The defence position is that when Detective Pilotte began the interview, Mr. Mohammed’s jeopardy had changed from allegations about a relatively minor possession for the purpose to home invasion robbery.

[77] Although in court Detective Pilotte could not recall having spoken with Detective Jacobs before she began the interview, she said they did have brief discussion before the interview during the preliminary inquiry.

[78] Given that Detective Jacobs began his investigation based on hunch connected to Aden and Shire and he did not have experience with Mr. Mohammed and could not connect Mr. Mohammed to the wallet or robbery until after the victim interviews, there would be little substance to their dialogue other than, as she said, she may have known the robbery squad was investigating the detainees and she was to give Jacobs a courtesy call when she was finished her interviews.

[79] She denied the intention of pursuing questions in relation to the robbery. At one point in the interview, when she was talking about the dangers inherent in drug trafficking and cavorting with traffickers, she asked him what he would do if his cohorts robbed someone is his presence. She could not recall why she referenced a robbery comparison instead of murder and whether it was a Freudian slip planted by the conversation with Detective Jacobs.

[80] Detective Pilotte was firm in her intentions. She interviewed to triage and process the drug case. She was not interested in Det. Jacob’s robbery investigation. The focus of her investigation did not shift or broaden.

Part 4: The Cellblock Search

Overview

[81] The arresting constables retrieved a computer and cell phones from the car at the request of the Shire and Aden and arranged towing services. It was reasonable to remove obvious valuables from the vehicle to protect against shrinkage during impound. The vehicle search was incidental to arrest.

[82] The vehicle search revealed evidence – beer bottles and half full liquor bottle to go with the marijuana seized from Shire and Aden for storage in the evidence storage area of the cellblock. The officers said that Mr. Aden emphasized concern for safe stowage of his MacBook and cell phones. The computer and cell phones were taken into custody for preservation and safekeeping and stored in the cellblock separately from evidence. The Applicant asked Constable Mellon to retrieve his wallet which he said fell to the ground when he exited the car.

[83] As part of cellblock processing and under the aegis of search incidental to arrest, wallets, watches, coins, shoes and anything on the detainee that might be used for self or other harm is liberated for safety, both of the prisoner and the guards, for preservation and safekeeping and is stored in clear tote containers separate from evidence. The special constables in the cellblock record and enter the identity of the accused, what they are charged with and their property is catalogued and accounted for in the computer log entry.

[84] The computer record is a working document accessible to any police officer.

[85] A detective assigned to the robbery squad, Kevin Jacobs, arrived for work at about 9:30 a.m. July 1, 2011. He reviewed the cellblock log, looking firstly for robbery related charges he should pick up for investigation and found none. He recognized Shire and Aden as players in the robbery context. He talked with Detective Pilotte and then collected the Apple laptop and cell phones from the tote housing Aden’s property in the cellblock storage.

[86] The name Matt Reardon appeared when Detective Jacobs powered the laptop. The detective searched that name in the system and learned of a recent home invasion complaint from Reardon in which the MacBook belonging to Reardon and a Samsung cell phone belonging to Kyle Ducharme were stolen. The detective contacted Reardon and Ducharme who confirmed the theft. He confirmed ownership of the laptop and cell phone. Their description of the home invaders raised the suspicion that the accused and Shire were the culprits.

[87] During the Ducharme discussion, Detective Jacobs learned of a stolen “American Eagle” brand wallet. Jacobs had seen that wallet in the tote in which the accused’s belongings were being held, but could only make the connection after interviewing the victims. Detective Jacobs retrieved the wallet from the Applicant’s personal tote container and confirmed Ducharme’s ownership.

[88] Detectives Jacobs and Pilotte agreed that the tote container contents were accessible without warrant in the context that accused persons do not have a privacy interest in tote contents and the tote contents are freely accessible to the police for any reason.

[89] As indication, Detective Jacobs accessed the totes belonging to Shire and Aden on hunch. He did not have a particular crime in mind; it was general investigation; only that he knew them to be players in the robbery battleground.

[90] The Crown position is to the same effect. The first position is that a defendant cannot have a privacy interest in stolen property. Without a privacy interest, the Applicant lacks standing to assert a breach. The second position is that the search of the Applicant’s tote was incident to the arrest.

[91] The accused submits that the police violated his rights under s. 8 of the Charter by engaging in an unlawful and warrantless search of his property at the police station.

Discussion

[92] The first portion of this segment assumes that the Applicant has standing to evoke a privacy interest in the tote container contents.

[93] A search, to be reasonable under s. 8 of the Charter, must be authorized by law, the law itself must be reasonable, and the search must be carried out in a reasonable manner. Because a warrantless search has been held to be prima facie unreasonable, once the accused has demonstrated that the search was warrantless, the Crown has the burden of showing that the search was, on the balance of probabilities, reasonable.

[94] Searches and seizures must be authorized by law and can fail to meet this requirement if any one of three conditions is not met. First, the State authority conducting the search must be able to point to a specific statute or common law rule that authorizes the search. Second, the search must be carried out in accordance with the procedural and substantive requirements the law provides. Third, a search must not exceed its scope as to area and as to the items for which the law has granted the authority to search.

[95] If the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of this doctrine must be respected. The first condition is that the arrest must be lawful. No search, no matter how reasonable, may be upheld under this common law power where the arrest which gave rise to it was arbitrary or otherwise unlawful (emphasis added). Secondly, the search must be truly incidental to the arrest: the police must be able to explain, within the purposes recognized in the jurisprudence (protecting the police, protecting the evidence, discovering evidence) or by reference to some other valid purpose, why they conducted a search. They do not need reasonable and probable grounds. However, they must have subjectively had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. Thirdly, the manner in which the search is carried out must be reasonable –R. v. Caslake 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51.

[96] Mr. Justice Cromwell reiterated these limits in R. v. Fearon, 2014 SCC 77 at paragraph 83 in the context of a cell phone search as follows:

“Rather, such a search will comply with s. 8 where:

(1) The arrest was lawful:

(2) The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are:

(a) Protecting the police, the accused, or the public;

(b) Preserving evidence; or

(c) Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest;

(3) The nature and the extent of the search are tailored to the purpose of the search; and

(4) The police take detailed notes of what they have examined on the device and how it was searched.

[97] Here, the arrest was unlawful. Secondly, the search by Detective Jacobs was in no way related to the drug investigation. It could not be a search incident to the arrest. Further there were no safety issues. Protection of evidence from destruction was not an issue. His search was unrelated to the Applicant’s arrest. He had not arrested the Applicant when he liberated the wallet.

[98] If the purpose of the search is to find evidence, there must be some reasonable prospect of finding evidence of the offence for which the accused is being arrested – Caslake at paras 19 – 24. The police must be able to explain, within the purposes of protecting the police, the public, the evidence or discovering evidence or some other valid purpose, why they searched. It must be related to the arrest offence when they did it and that reason must be objectively reasonable.

[99] The tote container search was not properly incident to arrest. A search incidental to detention has to be rationally connected to the purpose of the initial detention and reasonably necessary to either to ensure the security of police officers or the public, to preserve evidence or to prevent the escape of an offender. Since the power of search incidental to detention is less extensive than the power of search incidental to arrest, the objective of discovering evidence of a crime could not justify a search incidental to investigative detention.

[100] Detective Jacob’s search of the tote container was not incidental to detention. Firstly, the Applicant was being arbitrarily detained under the aegis of the drug investigation. He was not detained for the robbery investigation, or at least no one told him. There were no issues of safety, preservation of evidence or prevention of escape.

Reasonable Expectation of Privacy

[101] The Applicant has the standing to evoke a privacy interest in his personal belongings secured in the cellblock.

[102] Everyone has the right to be secure against unreasonable search and seizure. In those words lies the uneasy balance between the right of a citizen to be free from State intrusion and the need of the State to intervene on occasion for legitimate purpose.

[103] The purpose of s. 8 is to protect against intrusion of the State on an individual's privacy. The limits on such State action are determined by balancing the right of citizens to have respected a reasonable expectation of privacy as against the State interest in law enforcement. See Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at pp. 159-60. Section 8 protects people and not property. It is, therefore, unnecessary to establish a proprietary interest in the thing seized. See Hunter, supra, at p. 158; R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, per La Forest J., at pp. 426‑27.

[104] Section 8 only protects a reasonable expectation of privacy. The limiting term “reasonable” implies that an assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy to advance law enforcement.

[105] Mr. Justice LaForest in R. v. Edwards,1996 CanLII 255 (SCC), [1996] 1 S.C.R.128, in the minority, lamented that the implications from majority reasons in that decision result in a drastic diminution of the protection to the public s. 8 of the Charter was intended to ensure (emphasis added).

[106] A claim for relief under 24(2) can only be made by a person whose Charter rights have been infringed. Like all Charter rights, s. 8 is a personal right that protects people and not places. The right to challenge the validity of a search depends on whether the accused had an expectation of privacy.

[107] The majority wrote that REOP is to be determined on the basis of the totality of circumstances. Some factors to be considered would include:

1. presence at the time of the search;

2. possession or control of the property or place searched;

3. ownership of the property or place;

4. historical use of the property or item;

5. the ability to regulate access;

6. the existence of a subjective expectation of privacy; and

7. the objective reasonableness of that expectation

[108] None of those factors, save for his subjective expectation of privacy, augur to the Applicant having an expectation of privacy in the cellblock storage area.

Objective Reasonableness

[109] The right to search and seize non-evidentiary property for safety and preservation purposes does not eliminate a person’s expectations of privacy in the interaction unrelated to the offence under investigation. It is reduced from what is expected before the arrest but not eliminated. When a person is arrested and taken to the cellblock, his expectations of privacy are diminished. The common law right to search incident to arrest is the manifestation. The ONCA in R. v. Wint, ONCA 52 confirmed the inventory search authority extended to content of bags, wallets and purses to determine their contents. This property is stored in clear tote boxes exposing the contents to “plain view” observation.

[110] The situation is not equivalent to the disappearance of privacy expectations after conviction and sentence to prison. The detainees in the cellblock are not convicted of anything and are presumed innocent. Nor is it equivalent to situations where the Applicant discarded the found property.

[111] On the facts of this case, given that the arrest and detention infringed the Applicant’s ss. 7 and 9 rights, the Applicant’s privacy interest in his belongings was unaffected by the arrest and cellblock seizure. The proper context for evaluation of the infringement is to eliminate the arrest and cellblock factors. In that context, there was no authority in law for the search.

[112] The arrest and detention issues aside, as a warrantless search not otherwise authorized by law in the absence of exigent circumstances of any sort, the seizure and examination of the wallet runs afoul of section 8 Charter protection against unreasonable search and seizure. Standing alone, in all the circumstances, this section 8 infringement would not result in exclusion of the wallet after review of the Grant factors. Both experienced detectives said they believed they had free access to the tote contents for any purpose. The Applicant’s expectation of privacy was significantly diminished so the search brought minimal impact on his protected rights. The wallet is real evidence and the balance would result in admissibility.

[113] This infringement is not stand alone in this instance. It arose in the context of arbitrary arrest and detention.

[114] Finally, I am not persuaded by the submission that an individual does not have a privacy interest to protect when s/he carries stolen property. A person’s expectation of privacy derives from the all the circumstances and not so much from the particular offence connected to possession of the property. Stolen property is but one form of illegal possession and the accused is entitled to the same expectations of privacy as with any other substance. I agree with Justice Pelletier’s opinion on this issue articulated in R. v. Leduc 2013 ONSC 2663 where he wrote in paragraph 15 “I am not persuaded by the argument that as stolen property, determined after the fact (sic unreasonable search) the wallet does not generate any reasonable expectation of privacy”.

Part 5: DETECTIVE KEVIN JACOB’S INTERVIEW – VOLUNTARINESS AND S. 10

[115] Voluntariness requires that the Court scrutinize whether the accused was denied the right to silence. Did he have an informed choice? The right to silence is defined in accordance with constitutional principles. A finding of voluntariness is determinative of the Charter issue. If an accused can show, on balance of probabilities, that his Charter right to silence has been breached, the Crown cannot show voluntariness.

[116] The confession contained in this statement cannot be seen as voluntary. The Applicant was unlawfully arrested, arbitrarily detained for sixteen hours without which there would not be an unreasonable search and seizure and the perspective for this interrogation would have been significantly different. Those circumstances denuded the Applicant’s protections against self-incrimination.

[117] That said, as I have for each grievance, I will review and analyze the interview on its own merits on a stand-alone basis.

[118] The Applicant was interrogated by Detective Jacobs between 3:20 p.m. and 4:37 p.m. on July 1, 2011 during which he consulted legal counsel – Beach and then confessed to being integrally involved in the June 28, 2011 home invasion and robbery which are the subject of the charges before the Court.

[119] The accused challenges the voluntariness of the confession, citing incidents of threats, inducements and oppression and police trickery that would shock the community. On the Charter side, he submits that his s. 10 rights were infringed. The relief claimed under both is exclusion of the confession.

Legal Framework

Charter s. 10

[120] The purpose of the right to counsel guaranteed by s. 10(b) of the Charter is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfill those obligations. The opportunity is made available because, when an individual is detained by State authorities, he or she is put in a position of disadvantage relative to the State. Not only has this person suffered a deprivation of liberty, he or she may be at risk of self-incrimination. Accordingly, a person who is “detained” within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty. Under s. 10(b), a detainee is entitled as of right to seek such legal advice “without delay’ and upon request – R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173.

[121] In most cases, an initial warning coupled with a reasonable opportunity to consult counsel when the detainee invokes the right satisfies s. 10(b). The purpose of s. 10(b) is to support the detainee’s right to choose whether to cooperate with the police investigation or not by giving them access to legal advice on the situation they are facing.

[122] The Crown bears the burden of proving that the statement was voluntarily given. The inquiry will be whether the police improperly induced the confession through threats or promises, an atmosphere of oppression, or any other tactics that could raise reasonable doubt as to the voluntariness of the confession.

[123] The confession rule has broader scope than the Charter. The confession rule applies whenever a person, known to be in authority, questions a suspect. The protection of s. 10 only applies on arrest or detention. Although each is a distinct right, they are interrelated and together provide not only a standard of reliability with respect to evidence obtained from suspects who are detained, but fairness in the investigatory process. The Charter applies a different burden and standard of proof from that under the confession rule. Under the first, the burden is on the accused to show, on a balance of probability, a violation of a constitutional right. Under the confession rule, the Crown has to prove voluntariness beyond a reasonable doubt. Under the Charter, the evidence is excluded or not on a s. 24(2) Grant analysis. Under the confession rule, if the confession is not voluntary, it is always excluded.

Contemporary Confessions Rule Derived from R. v. Oikle, 2000 SCC 38, [2000] 2 S.C.R. 3 and R. v. Singh (2007), 2007 SCC 48, 51 C.R. (6th) 199

[124] Under the Oikle test, a statement is admissible at common law where the detainee had an operating mind and the confession did not result from inducements, oppression or police trickery that would shock the community (emphasis added). As the criminal justice system’s overriding concern not to convict the innocent, a confession will not be admissible if it is made under circumstances that raise reasonable doubt as to its voluntariness. The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in form of threat or promise. Although the overriding concern is with voluntariness, it is overlaid with reliability. The application of the rule is contextual. The Court is to be alert to the entire circumstances surrounding the confession in making this decision.

[125] Although the confession rule was more concerned with the reliability of confessions than the protection against self-incrimination, this is no longer true in the post-Charter era – Singh.

[126] While the confession rule’s primary concern is with reliability, voluntariness is a broader concept. Voluntariness is shorthand for a complex of values that include respect for the individual’s freedom of will, the need for police officers to obey the law, overall fairness of the criminal justice system and the principle that a person is not obliged to give information to the police or answer questions.

The interrogation – Voluntariness

[127] Mr. Purcell’s spreadsheet, particularizing the incidents he identifies as constituting threats, inducements and oppression, was helpful. For illustrative purposes, it is attached to these reasons as Appendix A.

Oppression

[128] The Crown must prove the voluntariness of the statement beyond a reasonable doubt. The reason for this high standard is that “involuntary confessions are more likely to be unreliable.” Oickle at para 32. At paragraph 33, Oickle talked about the objectives of the confessions rule: In defining the confession rule, it is important to keep in mind its twin goals of protecting the rights of the accused without unduly limiting society's need to investigate and solve crimes. Martin J.A. accurately delineated this tension in R. v. Precourt (1976), 1976 CanLII 692 (ON CA), 18 O.R. (2d) 714 (C.A.), at p. 721:

“Although improper police questioning may in some circumstances infringe the governing [confessions] rule, it is essential to bear in mind that the police are unable to investigate crime without putting questions to persons, whether or not such persons are suspected of having committed the crime being investigated. Properly conducted, police questioning is a legitimate and effective aid to criminal investigation. On the other hand, statements made as the result of intimidating questions, or questioning which is oppressive and calculated to overcome the freedom of will of the suspect for the purpose of extracting a confession are inadmissible. All who are involved in the administration of justice, but particularly Courts applying the confessions rule, must never lose sight of either of these objectives”.

[129] There was nothing about the interview that could be characterized as oppressive, having regard to the case law. The Applicant was not deprived of food, clothing, water, sleep, medical attention or access to counsel. The interviews were of relatively short duration and Detective Jacob’s questions were not excessively aggressive or intimidating to the point where the Applicant’s will could be said to be overborne. Detective Jacobs did not put non-existent evidence to the Applicant.

Threats or Inducements

[130] This component of the assessment looks at quid pro quo, leveraging designed to instill fear, prejudice, hope of advantage or offers of leniency of the kind in the circumstances that raise concerns for voluntariness.

[131] Detective Jacobs did not offer leniency. He consistently offered moral inducements. He consistently appealed to the Applicant’s sense of right and wrong. Detective Jacobs recognized that Mr. Mohammed was a relative neophyte and his affiliation with Aden and Shire was incongruous. Relative to other such interrogations where interviewers were significantly more ingenious in their management of the interview, Detective Jacobs did not encroach into improper threats or inducements.

Operating Mind

[132] The video recording confirms that Mr. Mohammed had the requisite operating mind throughout the interview. He clearly had the requisite degree of mental competence to make decisions inherent in the confession rule, the right to silence and the right to counsel. He was consistently responsive and appropriate throughout the interview. There is no evidence of hypnosis or induced impairment of mental function. The operating mind test requires that the accused possess the limited degree of cognizance sufficient to understand what he is saying or what is being said to him. It is not necessary to inquire as to whether the accused was making good or wise choices or one that was in his interest.

Other Police Trickery

[133] This is a distinct inquiry. I do not accept that Detective Jacobs misrepresented anything to Mr. Beech. Detective Jacobs did not misrepresent evidence or circumstances known to him.

Right to Silence Component of Voluntariness

[134] Mr. Mohammed spoke with counsel and made an informed choice as to whether or not to engage in the interview. By comparison, Mr. Singh asserted his right to silence 18 times without relief.

Conclusion in Respect to the Matter of the Stand-Alone Voluntariness of the Statement

[135] As a stand-alone issue, the statement was voluntarily given and was in compliance with s. 10. It could not be characterized as a coerced or stress-compliant confession. Further, I do not accept that the interview could be characterized as guilt presumptive. Retrospection is illuminating; however, when Detective Jacobs began the interview, he did not have a full appreciation of Mr. Mohammed’s engagement in the robbery.

Conclusion Vis-à-vis the Voluntariness of the Statement

[136] It was not given voluntarily and has to be excluded from evidence at trial. The Crown bears the burden of proof beyond reasonable doubt. The Applicant was subjected to an improper arrest and arbitrary detention. If the OIC had released Mr. Mohammed as he ought to or if the police had arranged an appearance before a Justice of the Peace when he would have been released, then everything that flows from the arrest and detention would not have. The process simply denied the Applicant protection against self-incrimination.

Charter ss. 7, 10 Discussion

[137] Although preferable, the Charter cautions and rights information need not be communicated in script formula. It is the substance of what is communicated rather than adherence to a form that is of importance.

[138] There was clearly a change in the Applicant’s jeopardy involved in the Jacob’s engagement.

[139] Detective Jacobs did alert the Applicant to the reason for detention before getting into the interrogation – page 6/7. He said “I’m involved in part in a stolen property investigation, okay? Stolen property. Okay? So I’m gonna formally arrest you for being, uh cause I believe I have the grounds that you had stolen property on you, okay?”

[140] That is followed immediately by “So you know, you’re you have the same rights as you did when you came into the station, when you were arrested last night. You can just tell me to go away. Put me back in the cell, that’s fine. I don’t want to talk to you officer. I don’t want to make any statements. That’s fine by me. You can call a lawyer at any time. You understand that?” Later at page 11 and before the interrogation begins, Detective Jacobs said “If you still wanna call a lawyer, tell me right now, I’ll let you call a lawyer, okay?...If you want to be put back in the cell, I’ll do that right now, okay?”

[141] Detective Jacobs did not caution the Applicant that anything he did say would be evidence, he had the right to call a particular lawyer, mention access to Legal Aid or that Detective Jacobs would facilitate arrangements for legal advice.

[142] As such, Detective Jacobs, a detective with a long career in law enforcement, neglected to honour his obligations to the Applicant under ss. 7 and 10 of the Charter.

[143] The two felt each other out for a few minutes until the Applicant realized the discussion was turning towards the robbery – page 14. That transition represented another change in jeopardy. A home invasion robbery is a more serious offence than possession of stolen property.

[144] Detective Jacobs at last advises the Applicant that he will facilitate a phone call to Peter Beach and that is what they do. The Applicant consulted with Mr. Beach, returned to the interview and made the inculpatory confession.

[145] Mr. Beach testified. He did not breach solicitor-client privilege. He confirmed that he and Detective Jacobs talked briefly before the consultation with the Applicant. Neither made notes of the discussion.

[146] There is some history between the two. Detective Jacobs viewed it as affinity. Mr. Beach viewed it as ingratiation.

[147] Mr. Beach was distracted by his own exigencies when he took the call. He was readying to pack and cab to the airport for a flight to Britain. The cab call had been made and he wasn’t finished packing. He recalls that Detective Jacobs contextualized his interest in the Applicant as possible witness to a robbery rather than participant. Mr. Beach recalled the robbery related to a corner store. He said he thought it curious that a detective would refer the Applicant for legal advice in that context.

[148] Detective Jacobs denied depicting that context. He said that when he embarked on the interview, he knew only that he had the Applicant for possession of stolen property - wallet, that the Applicant did not have a criminal record suggesting, in his mind, incongruity. He didn’t know where the interrogation would go.

[149] The defence assertion is that Detective Jacobs deliberately misrepresented his intentions to Mr. Beach to compromise the qualitative legal advice likely to emanate.

[150] I am not prepared to make that conclusion. Although Mr. Beach said that his recall was clear and unambiguous, so do many witnesses. It is part of the human experience to redact and modify memory. He was distracted by domestic circumstances when he took the call. He clearly was unimpressed with Detective Jacobs and barely controlled his derision. He is an experienced lawyer practicing criminal law and knew that detention of potential witnesses is impermissible and would have said so.

[151] I am satisfied Detective Jacobs advised Mr. Beach he was investigating a robbery – a serious offence and the applicant had possession of property stolen in the robbery, but he did not know yet the extent of the Applicant’s participation.

[152] I am also satisfied the Applicant had the benefit of legal advice when he chose to cooperate with the investigation.

Conclusion Vis-À-Vis Charter 24(2)

[153] Before an accused can seek to have evidence excluded under subsection 24(2), s/he must establish that his/her own Charter rights were violated – R. v. Paolitto (1994), 1994 CanLII 1466 (ON CA), 91 C.C.C. (3d) 75 (Ont. C.A.), R. v. Edwards (1996), 1996 CanLII 255 (SCC), 45 C.R. (4th) 307; R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341. The only evidence available for exclusion in respect to Mr. Mohammed is the wallet. The Shire and Aden circumstances are not analogous to the Applicant’s and the Charter analysis could go in a different direction.

The 24(2) analysis is oriented towards:

i. the seriousness of the Charter-infringing State conduct;

ii. the impact of the Charter-protected interests of the accused; and

iii. society’s interest in having criminal matters adjudicated on their merits.

[154] The arbitrary arrest and extended detention without access to a Justice of the Peace displayed gratuitous insensitivity to the Applicant’s reasonable expectations under the Charter. Everything that transpired in the cellblock is tainted by those two serious infringements. There is no way to sugar-coat or gloss over these infringements. Our system is designed to ensure that citizens are not arbitrarily arrested and the officers did not advert to that issue in their reasoning. It is designed to respect the presumption of innocence. Here, the police held a man for 16 hours without grounds or legitimate purposes.

[155] From the context of a properly-supported arrest and reasonable detention, the unreasonable search of the tote was a minor infringement, having regard to the diminished expectation of privacy inherent in the cellblock. The impact on the Applicant’s Charter-protected interests is commensurately minimal and, standing alone, the wallet would not be excluded from evidence.

[156] The fact that the unreasonable search was conducted under the aegis of an arbitrary arrest and detention exacerbates the seriousness of the State conduct and generates a cumulative sense that the police, at least in this file, were insensitive to the Applicant’s Charter interests.

[157] There was a direct causal connection between the state-infringing conduct and the discovery of the wallet and making of the statement.

[158] The degree of intrusion that occurs when statements are unconstitutionally obtained is high. Unless there is a sound basis for concluding the accused would have spoken in any event, or the breach is so technical as to have no real impact on the important Charter- protected interest of the accused to make an informed choice about whether to speak to the authorities, unconstitutionally obtained statements are presumptively inadmissible – David M. Paciocco and Lee Stuesser, The Law of Evidence (6ed), Irwin Law Inc., 2011, c. 9 para. 6.4.

[159] In the instant case, we can never know whether the accused would have given the statement in any event. He had access to counsel, but it is impossible to measure the effect of the arbitrary arrest and detention on his capacity to choose, even with legal advice. These transactions were intertwined.

[160] The significance of the impact of the violation where non-bodily physical evidence is obtained turns primarily on the manner of discovery and the degree to which the manner of discovery undermines the Charter-protected privacy interests of the accused. Detective Jacobs would not have discovered the wallet without the arrest and detention. There is a direct causal connection.

[161] The weight to be accorded to society’s interest in the adjudication of the case on its merits varies according to the reliability of the evidence and the importance of the evidence to the case for the Crown. Is the truth seeking function of the criminal trial process better served by admission of the evidence or by its exclusion?

[162] The statement and wallet are reliable pieces of evidence. However, as R. v. Harrison, 2009 SCC 34 shows, where the breach was serious enough, the reliability of the evidence will not save it from exclusion.

[163] The community has an interest in a justice system that operates within the law. The purpose of section 24 is to maintain the good repute of the administration of justice. The inquiry is objective. Freedom from arbitrary arrest and detention is an important aspect and one that means little if the resulting evidence is admitted against the individual. Section 24 addresses the long term interests of the administration of justice. A reasonable person informed of all the circumstances and values underlying the Charter would conclude that the admission of this evidence would bring the administration of justice into disrepute. The arbitrary arrest and detention has done damage to the administration of justice. Exclusion at least serves to staunch the damage. In this case, the cumulative breaches weigh the balance in favour of exclusion. The statement and wallet are excluded from evidence at trial.

Justice Rick Leroy

Released: February 9, 2015

CITATION: R. v. Mohammed, 2015 ONSC 905

COURT FILE NO.: 11-10307 Ottawa

DATE: 2015/02/09

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Soulieman Mohammed

RULING ON

CHARTER statement APPLICATION

Justice Rick Leroy

Released: February 9, 2015