R. v. Omar, 2017 ONSC 93

CITATION: R. v. Omar, 2017 ONSC 93

COURT FILE NO.: CR-16-3623

DATE: 20170110

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

OMAR MUHAMMAD OMAR Applicant

COUNSEL: Edward J. Posliff, Counsel for the Federal Crown Jennifer Holmes, Counsel for the Crown Patricia Brown, Counsel for the Defendant

HEARD: December 19 and 20, 2016

REASONS FOR DECISION

HEBNER, J.:

[1] Omar Muhammad Omar is charged on a 5 count indictment as follows:

1. Possession of cocaine for the purpose of trafficking, contrary to section 5 (2) of the Controlled Drugs and Substances Act;

2. Carrying a concealed firearm without authorization under the Firearms Act, contrary to section 90 (1) of the Criminal Code;

3. Possession of a handgun while prohibited from doing so contrary to section 117.01 (1) of the Criminal Code;

4. Possession of .32 calibre ammunition while prohibited from doing so, contrary to section 117.01 (1) of the Criminal Code;

5. Carrying a handgun in a careless manner, contrary to section 86 (1) of the Criminal Code.

[2] All of the charges were alleged to have occurred at approximately 1:15 am on November 19, 2015.

[3] Mr. Omar brought an application at the commencement of the trial alleging that his rights under the Charter of Rights and Freedoms were infringed. Specifically, Mr. Omar makes the following submissions:

1. His right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice pursuant to section 7 have been infringed;

2. His right to be secure against unreasonable search or seizure pursuant to section 8 has been infringed;

3. His right to be free from arbitrary detention or imprisonment pursuant to section 9 has been infringed;

4. His right to retain and instruct counsel without delay and to be informed of that right pursuant to section 10 (b) has been infringed; and

5. As a result of the Charter violations, the evidence obtained during the course of the search and\or detention should be excluded under section 24 (2) of the Charter.

[4] This is my decision on the application.

Background Facts

[5] On the night of November 18 and into the early morning of November 19, 2015, Constable Shaun Ashton and Constable Mohamad Haidar, both of Windsor Police Services, were on patrol in a marked cruiser in District 31, located in downtown Windsor. Their shift started at 11:00 PM on November 18. At the beginning of their shift, they were shown a BOLO (be on the lookout) notice for a white male, 5’7”, 200 pounds, 25 – 30 years old. The white male described is believed to have been involved in a robbery at the Mac’s Milk store located at 380 Mill Street and the Mac’s Milk store located at 891 Campbell Avenue. The suspect had been armed with a six-inch hunting style knife and was wearing a black hooded sweatshirt and black ski mask. After receiving the BOLO notice, Constable Ashton and Constable Haidar started their patrol.

[6] Just after 1:00 AM Constables Ashton and Haidar were driving westbound on Richmond Street toward Walker Road. They came upon two men on the south side of the street walking westbound approaching Walker Road. The two men were the accused, Mr. Omar, and a Mr. Smith. Mr. Omar and Mr. Smith were wearing hoodies with their hoods up. Constable Ashton and Constable Haidar pulled to the side of the road behind Mr. Omar and Mr. Smith to speak to them. Their reasons for doing so were the lateness of the hour; the manner in which the two males were dressed; and the proximity to the Mac’s Milk store (which was 2 – 3 blocks from the intersection of Richmond Street and Walker Road). Constable Ashton and Constable Haidar shone their spotlight on Mr. Omar and Mr. Smith and called “Hey guys what’s going on”.

[7] Constables Ashton and Haidar then exited the cruiser, approached Mr. Omar and Mr. Smith and asked for their identification. Mr. Omar handed over his wallet with two health cards inside. Mr. Smith indicated he was not carrying identification and identified himself verbally. Constable Haidar took the identification back to the cruiser to run Mr. Omar and Mr. Smith’s names through CPIC. Constable Ashton stayed with the two men and engaged in conversation with them. Constable Ashton asked a series of questions such as “what are you doing here?”; “What are you up to?”; “Where do you live?”; “How did you get to Windsor?” While Constable Ashton was engaging the two men in conversation, he asked them to remove their hands from their pockets. The request was made for officer safety. Mr. Omar returned his hands to his pockets. Constable Ashton asked him to remove his hands from his pockets again and, when Mr. Omar removed his left hand only, Constable Ashton said “both hands”.

[8] At this point, the evidence of Constable Ashton and Mr. Omar differs. According to Constable Ashton, when Mr. Omar removed his right hand from his pocket, Constable Ashton saw the barrel of a gun. He yelled “gun”, seized Mr. Omar, took him to the ground, seized the gun from Mr. Omar and placed him under arrest. The gun was a .32 calibre handgun. He then performed a search of Mr. Omar and found four .32 calibre rounds of ammunition inside his vest pocket. Once Mr. Omar was in handcuffs, Constable Ashton examined the handgun and found it to be fully loaded. He unloaded the gun and took it apart.

[9] According to Mr. Omar, he put his hands back in his pockets because it was cold. He was told to keep his hands out of his pockets, so he put them behind his head. Constable Ashton said “What have you got?” and searched Mr. Omar’s left pocket. He then searched Mr. Omar’s right pocket and found the firearm.

[10] On this point I accept the evidence of Constable Ashton. Constable Ashton was very credible and gave his evidence in a professional, forthright manner. The suggestion that Mr. Omar put his hands behind his head was never put to Constable Ashton in cross-examination at the trial or at the preliminary hearing. As well the suggestion that Constable Ashton reached into Mr. Omar’s left pocket and then into Mr. Omar’s right pocket was not put to Constable Ashton in cross-examination at the trial or at the preliminary hearing.

[11] The length of time from the moment the two police officers pulled up to Mr. Omar and Mr. Smith to the time that Constable Ashton yelled “gun” was less than 5 minutes.

[12] Constable Ashton did not make a note of whether he advised Mr. Omar of his right to counsel. On January 3, 2016 he was asked by the Crown Attorney’s office to provide a supplementary report “filling in the gaps”. In that supplementary report, Constable Ashton noted that he advised Mr. Omar of his right to counsel after he had placed him in handcuffs.

[13] After Constable Ashton yelled “gun”, Constable Haidar left the cruiser and went to assist his partner, by the time he joined the three men, the gun was on the hood of the cruiser and Constable Ashton had control of Mr. Omar. Constable Haidar took control of Mr. Smith and put him in handcuffs. He arrested Mr. Smith for breach of the peace. Constable Haidar had noted in his notes that he heard Constable Ashton read Mr. Omar his right to counsel immediately after he seized the firearm and arrested Mr. Omar. Mr. Omar’s answer was that he was “so stupid” and that he had a lawyer in London.

[14] I accept Constable Haidar’s evidence on the issue of when Mr. Omar was advised of his right to retain and instruct counsel.

[15] After Mr. Omar and Mr. Smith were transported to the police station, Mr. Omar was searched by Constable Thomas prior to being placed in a cell. Constable Haidar assisted with the search. Constable Haidar saw a clear plastic bag with white powder fall out of Mr. Omar’s pocket. Constable Haidar took the bag and informed Mr. Omar that he was arrested for possession of a controlled substance.

Position of the accused

[16] The accused takes the position that:

1. The search of Mr. Omar was a warrantless search. Accordingly, it was prima facie unreasonable and the onus is on the Crown to demonstrate that it is reasonable.

2. Mr. Omar was detained by the police when the officer stopped him, flashed a spotlight on him, requested that he provide his identification, questioned him and asked him to keep his hands out of his pockets. The detention was arbitrary because there was a complete absence of the grounds of belief required by law to detain Mr. Omar.

3. Mr. Omar was not afforded the opportunity to retain and instruct counsel promptly upon detention.

4. As a result of the foregoing, Mr. Omar’s rights under the Charter have been infringed and the evidence of the firearm and the cocaine ought to be excluded under section 24 (2).

Position of the Crown

[17] The Crown takes the position that:

1. Constable Ashton and Constable Haidar did not detain Mr. Omar. Mr. Omar was free to leave at any time.

2. There was no search in respect of the gun. The gun was in open sight. Constable Ashton saw the barrel of the gun and reacted appropriately to take control of the situation.

3. If there was a detention and/or a search, the gun and cocaine ought not to be excluded under section 24 (2) of the Charter as, having regard to all of the circumstances, the admission of the evidence in the proceedings would not bring the administration of justice into disrepute.

The issues

[18] The issues to be determined by this court are as follows:

1. Did the arresting police officers breach Mr. Omar’s right not to be arbitrarily detained or imprisoned under section 9 of the Charter?

2. Did the arresting police officers breach Mr. Omar’s right to be secure against unreasonable search or seizure under section 8 of the Charter?

3. Did the arresting police officers breach Mr. Omar’s right to retain and instruct counsel without delay and to be informed of that right under section 10 (b) of the Charter?

4. If the answer to number 1, 2 and\or 3 is “yes”, having regard to all of the circumstances, would the admission of the evidence obtained on the search bring the administration of justice into disrepute (section 24 (2))?

Analysis

1. Did the arresting police officers breach Mr. Omar’s right not to be arbitrarily detained or imprisoned under section 9 of the Charter?

[19] The facts in this case are very close to the facts in R v. Grant, [2009] SCC 32. In that case, two plain-clothed police officers were patrolling an area with four high schools and a history of student assaults, robberies and drug offences. They saw the 18-year-old accused, Mr. Grant, walk past them in a manner that they considered suspicious. They asked the uniformed officer in the area to speak with the accused. The uniformed officer stood in the accused’s path, told him to keep his hands in front of him and began questioning him. The plain clothed officers arrived and stood behind the uniformed officer. The accused admitted he had a small amount of marijuana and a loaded firearm. At that point, the officers arrested and searched Mr. Grant, seizing the marijuana and the loaded firearm. They advised Mr. Grant of his right to counsel and took him to the police station.

[20] Mr. Grant brought a motion to exclude the firearm from the evidence at trial on the basis of a violation of his right not to be arbitrarily detained under section 9 of the Charter. The Supreme Court of Canada found that Mr. Grant had been detained and his right under section 9 had been breached. The guidance on determining whether a person has been detained appears at paragraph 44:

[21] “In summary, we conclude as follows:

1. Detention under sections 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:

a) the circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for a focussed investigation.

b) the nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

c) the particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.”

[22] The facts in this case lead me to the conclusion that Mr. Omar was detained at least by the time he was asked for his identification. Constable Ashton and Constable Haidar shone their spotlight on Mr. Omar. Constable Ashton is 5’11” tall and was in full uniform. Mr. Omar is significantly smaller, approximately 5’8” tall. Mr. Omar was born December 30, 1994 and at the time of the incident is 20 years of age. He was repeatedly told to remove his hands from his pockets. He was questioned. He was requested to hand over his identification. Constable Ashton stood less than 4 feet away.

[23] Mr. Omar gave evidence on the voir dire. He said he was scared. He said he was never told that he did not have to speak with the officers and he did not feel as though he had the choice to refuse. Mr. Omar said he did not know that he could leave at any point in time.

[24] The test is an objective one. I find that a reasonable person in Mr. Omar’s position would conclude that his right to choose how to act had been removed by the police. I conclude that Mr. Omar was detained when Constable Ashton told him to keep his hands out of his pockets, asked for his identification and embarked on a line of questioning.

[25] Having determined that Mr. Omar was detained prior to his arrest, the question is whether the detention was “arbitrary” within the meaning of section 9.

[26] The Supreme Court of Canada in R v. Grant at paragraph 55 said “Mann, in confirming that a brief investigative detention based on “reasonable suspicion” was lawful, implicitly held that a detention in the absence of at least reasonable suspicion is unlawful and therefore arbitrary within section 9.”

[27] Constable Ashton and Constable Haidar had been told, at the beginning of their shift, to be on the lookout for an unknown male who was suspected of robbing two Mac’s Milk stores armed with a knife. The robberies occurred on November 12 and November 13, 2015, with the most recent being 6 days before the detention of Mr. Omar. The suspect in the BOLO was described as “male, white, 25-30 years old, 5’7” tall, 200 pounds, wearing all dark clothing and a black ski mask”. Mr. Omar is 20 years of age. Although his appearance is not decisive of race, Mr. Omar identifies with being “a person of colour”. Mr. Omar is slight of build. Mr. Omar was wearing a hoodie that was light grey in colour. He did not have on a black ski mask. The 2 Mac’s Milk Stores that were robbed the week before are located on the other side of Windsor. Mr. Omar and Mr. Smith were heading in the direction of a Tim Horton’s and a Mac’s Milk, both of which are open 24 hours per day.

[28] In R v. Mann the Supreme Court of Canada discussed the use of police power to detain for investigative purposes. At paragraph 34 the court said:

“The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or ongoing criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that a particular individual is implicated in the criminal activity under investigation.”

[29] In my view, the BOLO notice is insufficient to constitute “reasonable suspicion”, even given the lateness of the hour, and there was no clear nexus between Mr. Omar and the two robberies that had occurred the week before. Accordingly, the detention was arbitrary.

2. Did the arresting police officers breach Mr. Omar’s right to be secure against unreasonable search or seizure under section 8 of the Charter of Rights and Freedoms?

[30] I have accepted Constable Ashton’s version of the events that took place surrounding the discovery of the firearm in Mr. Omar’s pocket. The barrel of the handgun was in plain sight. Constable Ashton saw the barrel of Mr. Omar’s handgun and reacted quickly and appropriately to take control of both the handgun and Mr. Omar. Notwithstanding, Constable Ashton’s actions still constitute an unreasonable search or seizure of Mr. Omar’s person.

[31] In R. v. McGuffie, 2016 ONCA 365 at paragraph 54 and 55 Doherty J.A. said,

“… In my view, the police cannot, through unlawful conduct, create a circumstance said to justify a safety search of an individual.”

“I would draw an analogy between searches that are said to be lawful as an incident of an arrest and safety searches which are said to be lawful as an incident of a lawful investigative detention. If the arrest is unlawful, the search incidental to the arrest is unlawful and contrary to s.8. … Similarly, if an investigative detention is unlawful, a safety search said to be justified on the basis of that detention must be unlawful and contrary to s.8.”

[32] The approach in McGuffie is applicable to this case. The detention of Mr. Omar was arbitrary and therefore unlawful. Accordingly, the search and seizure cannot be justified as being incident to a lawful detention.

[33] Similarly, the search and seizure of the firearm is not made lawful by the plain sight doctrine. In Regina v. 2952-1366 Quebec Inc. the Quebec Court of Appeal explained at paragraph 10:

“The “in plain sight” doctrine developed by the common law permits a seizure without warrant of evidence which is in full view, if the following three conditions are met:

• the entry is legal;

• the discovery of the evidence is made inadvertently;

• the goods seized can prove the offence in question.”

[34] As the detention of Mr. Omar was unlawful, the “in plain sight” doctrine does not apply.

3. Did the arresting police officers breach Mr. Omar’s right to retain and instruct counsel without delay and to be informed of that right under section 10 (b) of the Charter?

[35] The entire incident from the time that the two police officers pulled up behind Mr. Omar and Mr. Smith to the time that Constable Ashton yelled “gun” was less than 5 minutes. Immediately after Constable Ashton took control of the gun and Mr. Omar, he read Mr. Omar his rights to counsel. The question is whether this constitutes a delay.

[36] In R. v. Suberu, 2009 SCC 33, McLachlin C.J.C. identified the question at paragraph 39:

“The content of the police duties under s. 10 (b) is not at issue in this appeal. Instead, the question is whether the right to retain and instruct counsel “without delay” means that these duties must be executed immediately at the outset of a detention, or whether these duties manifest at some later point subsequent to the start of a detention.”

[37] The question is answered at paragraph 42:

“To allow for a delay between the outset of a detention in the engagement of the police duties under s. 10(b) creates an ill-defined and unworkable test of the application of the s. 10(b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words “without delay” means “immediately” for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.”

[38] Having found that Mr. Omar was detained when Constables Ashton and Haidar asked for his identification, he should have been informed of his rights to counsel at that point. He was not. Accordingly, I conclude that the arresting police officers did, indeed, breach Mr. Omar’s right to retain and instruct counsel and to be informed of that right under section 10 (b) of the Charter.

4. If the answer to number 1, 2 and\or 3 is “yes”, having regard to all of the circumstances, would the admission of the evidence obtained on the search bring the administration of justice into disrepute (section 24 (2))?

[39] Having found that Mr. Omar was detained arbitrarily contrary to section 9 of the Charter, the question turns to whether the admission of the evidence obtained would bring the administration of justice into disrepute (section 24 (2)). To put it another way, should the gun seized by Constable Ashton after he and Constable Haidar stopped and questioned Mr. Omar, and should the cocaine found at the police station, be excluded from the evidence at his trial? The discovery of the gun was both temporally and causally connected to the detention of Mr. Omar and was therefore obtained as a result of a Charter breach. Similarly, the discovery of the cocaine was causally connected to the detention of Mr. Omar and was therefore obtained as a result of a Charter breach.

[40] Section 24 (2) of the Charter provides:

(2) Where, in proceedings under subsection (1) a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[41] The framework for the application of section 24 (2) of the Charter is set out in R. v. Grant, [2009] SCC 32 at para 71:

A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by section 24 (2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under section 24 (2), the court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a section 24 (2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[42] Under the first line of inquiry, the seriousness of the Charter infringing state conduct, the majority in R. v. Harrison, 2009 SCC 34 said:

The metaphor of a spectrum used in R. v. Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 166 C.C.C (3d) 14 (Ont C.A.) per Doherty J.A., may assist in characterizing police conduct for purposes of this s. 24(2) factor:

Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights …. What is important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct….

[43] I find that Constable Ashton and Constable Haidar acted in good faith. They had a subjective belief that they were not detaining Mr. Omar. The police conduct was not abusive. Although the officers went too far in detaining Mr. Omar and asking him questions, the point at which an encounter becomes a detention is not always clear. Although I have concluded that Constable Ashton and Constable Haidar were in error in detaining Mr. Omar, the detention is understandable. The police conduct in committing the Charter breach was neither deliberate nor egregious and would not fall on the more serious end of the spectrum.

[44] Insofar as the second inquiry is concerned, in this case, as in most cases, the detention had an impact on Mr. Omar’s liberty and privacy interests. Although he was not treated roughly until Constable Ashton saw the firearm in his pocket, the impact on Mr. Omar’s liberty must not be minimized. Mr. Omar, Mr. Smith, and every other person in this country have the right to walk down the street without fear of being arbitrarily detained, whether the time is 1:00 in the morning or in the middle of the afternoon. Mr. Omar’s right to do so was violated and the breach of his rights under section 9 were significant.

[45] Insofar as Mr. Omar’s section 10(b) rights are concerned, I find the impact on Mr. Omar to be significant as well. Mr. Omar should have been advised of his right to counsel at the time he was asked for his identification. Mr. Omar gave evidence that he was scared and he felt he did not have the right to walk away. If he had been informed immediately of his right to counsel, and had been given an opportunity to consult with counsel, he may have been advised differently. Although the time delay was minimal (he was advised less than 5 minutes later) the breach nonetheless had a significant impact.

[46] The third and final concern is society’s interest in an adjudication on the merits. The evidence in this case is cocaine, a loaded firearm and ammunition. In Harrison, in describing this type of evidence, the court said:

The evidence of the drugs obtained as a consequence of the Charter breaches was highly reliable. It was critical evidence, virtually conclusive of guilt on the offence charged. The evidence cannot be said to operate unfairly having regard to the truth-seeking function of the trial … (T)he third line of inquiry under the s. 24(2) analysis favours the admission of the evidence as to do so would promote the public’s interest in having the case adjudicated on its merits.

[47] In R. v. Grant the court said:

The exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.

[48] The exclusion of the evidence in this case will effectively gut the Crown’s case.

[49] Having considered the three inquiries, I must determine whether, on balance, the admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute. The analysis requires the court to examine the quality of the evidence against the means by which the evidence was obtained. The factors in favour of admission are:

(a) the police subjectively believed they were not detaining Mr. Omar. They acted in good faith.

(b) the exclusion of the evidence would gut the Crown’s case and the evidence seized is highly reliable evidence on a very serious charge.

[50] The factors in favour of exclusion are:

(a) the Charter infringement had a significant impact, albeit not an egregious one, on the accused’s Charter protected interests.

[51] In R v. Harrison the court said:

“The balancing exercise mandated by section 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.

[52] I find that the seriousness of the offense and the reliability of the evidence outweigh the impact on the accused’s Charter protected interests. Considering all three Grant lines of inquiry, I conclude that the balancing of all of the factors favours admission of the evidence in this case.

ORIGINAL SIGNED BY JUSTICE P.J. HEBNER

Pamela J. Hebner Justice

Released: January 10, 2017

CITATION: R. v. Omar, 2017 ONSC 93

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

OMAR MUHAMMAD OMAR

REASONS FOR JUDGMENT

Hebner J.

Released: January 10, 2017