CITATION: R. v. Athwal, 2017 ONSC 96

COURT FILE: CRIMJ(P) 1354/15

DATE: 20170104

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

A. A. Fedak-Tarnopolsky, for the Respondent

• and -

DALVIR ATHWAL

G. Henderson, for the Applicant

HEARD: October 25-28, 31 and November 14, 2016

REASONS FOR JUDGMENT

TABLE OF CONTENTS

Para. No.

INTRODUCTION............................................................................ 1

OVERVIEW.................................................................................... 5

BACKGROUND FACTS

The PRPS Investigation.................................................................................. 8

The Original Telewarrant............................................................................... 13

Authorized Time For Warrant Execution Extended.......................................... 20

The Pre-Search Briefing................................................................................ 28

The TAC Unit Operation – The Applicant is Detained...................................... 35

CIB Takes Over Custody of the Applicant....................................................... 53

Search of the Dwelling................................................................................... 74

Arrest of the Applicant................................................................................... 83

The PRPS 21 Division Booking Process......................................................... 98

The Videotaped Interview............................................................................. 105

Subsequent Events...................................................................................... 114

ANALYSIS

Unreasonable Search/Seizure

Submissions

Applicant........................................................................................... 115

Respondent....................................................................................... 123

Governing Principles............................................................................ 128

Discussion........................................................................................... 135

Arbitrary Detention

Submissions

Applicant........................................................................................... 147

Respondent....................................................................................... 155

Governing Principles............................................................................ 162

Discussion........................................................................................... 182

The s. 10(a) Charter Right

Submissions

Applicant........................................................................................... 194

Respondent....................................................................................... 199

Governing Principles............................................................................ 202

Discussion........................................................................................... 205

Right to Counsel

Submissions

Applicant........................................................................................... 207

Respondent....................................................................................... 214

Governing Principles............................................................................ 218

Discussion........................................................................................... 227

Admission/Exclusion of Evidence

Submissions

Applicant........................................................................................... 235

Respondent....................................................................................... 246

Governing Principles............................................................................ 251

Discussion........................................................................................... 257

Voluntariness of the Applicant’s Statements

Submissions

Applicant........................................................................................... 270

Respondent....................................................................................... 279

Governing Principles............................................................................ 286

Discussion........................................................................................... 304

CONCLUSION............................................................................ 317

HILL J.

INTRODUCTION

[1] The admissibility of evidence in this matter has been determined by me by way of pre-trial motions acting in the capacity of a Case Management Judge pursuant to Part XVII.1 of the Criminal Code.

[2] Dalvir Athwal is scheduled for a jury trial at the sittings commencing January 16, 2017 on an indictment charging:

That he, on or about the 27th day of November, 2014, at the City of Brampton, in the Central West Region, did possess a prohibited firearm, together with readily accessible ammunition capable of being discharged in the said firearm and was not the holder of a license under which he may possess the said firearm in that place, contrary to section 95(1) of the Criminal Code of Canada.

[3] By way of pre-trial motion, the Crown seeks to prove the voluntariness of statements made by the applicant to Peel Regional Police Service (PRPS) investigators. The applicant disputes proof of voluntariness and further submitted by a filed Notice of Application that his s. 9 and s. 10(b) Charter rights were breached by the police. During the course of these pre-trial applications, the applicant was given leave to advance argument respecting alleged violations of his s. 8 and s. 10(a) Charter rights.

[4] The filed application gave notice that the applicant intended to rely upon the preliminary inquiry transcripts, search warrant documentation, and the oral testimony of various PRPS officers. In the end, the court heard testimony from six police witnesses.

OVERVIEW

[5] As a result of information received by the PRPS from a reliable, confidential informant (CI), an investigation commenced into the activities of Karmvir Athwal who was believed to be a drug trafficker in possession of firearms.

[6] A telewarrant was executed at the dwelling where the suspect resided with his family. The suspect’s brother, Dalvir, was detained at the scene, interviewed by the police, and then released while the warrant was executed.

[7] Police searchers discovered hashish, a handgun and ammunition in the dwelling. When Dalvir Athwal returned to the scene, he was arrested, taken into custody, transported to PRPS 21 Division, and interviewed on videotape.

BACKGROUND FACTS

The PRPS Investigation

[8] PRPS Constable Blair Kerfoot was the officer-in-charge of the Athwal investigation. He would eventually provide to the Crown, for disclosure to the defence, the search warrant materials in Exhibit #6 Tabs 2 to 5.

[9] A CI believed reliable by the PRPS (“the CI had been proven”/ “accurate and reliable” information previously supplied), informed the police that he had been within the dwelling at 73 Mountainberry Road, Brampton. This individual had a criminal record and had “strong connections to parties … fully entrenched within the drug sub-culture”.

[10] According to the CI, Karmvir Athwal resided with his parents, sister and the family dogs. The CI provided a physical description of Karmvir Athwal and of the interior of the residence including the fact that there were three bedrooms on the upper level. The CI identified a police mug shot of the suspect. The CI described Karmvir as a dealer with a large customer base, distributing hash oil and marihuana butter. He had purchased hash oil from the suspect. According to the CI, while in the Mountainberry dwelling on a date or dates in 2014, he observed a black revolver style handgun, a black rifle, numerous rounds of ammunition, and a separate clip for the rifle.

[11] Police resort to various information data bases confirmed that Karmvir Athwal resided at 73 Mountainberry Road in Brampton, that he did not possess a licence authorizing possession of a firearm, and that he was without a prior criminal record although he had been cautioned by police in 2011 for being in possession of marihuana.

[12] At the November 2015 preliminary inquiry in this case, Const. Kerfoot testified that when execution of a search warrant is planned, the police ordinarily run checks to determine who is resident at the subject address. Here the target was Karmvir Athwal who lived with his parents and sister. Nothing was known about Dalvir Athwal being in the Mountainberry dwelling.

The Original Telewarrant

[13] At about 2:00 p.m. on November 26, 2014, PRPS Constable Andrew Gales drafted the materials in support of the issuance of a warrant to search Karmvir Athwal’s residence. In this capacity, he acted as the affiant for the Information to Obtain a Telewarrant (ITO).

[14] At 8:39 p.m., Const. Gales forwarded by facsimile transmission (fax) an Initial Fax Contact Form to the Provincial Telewarrant Centre (TWC) in Newmarket indicating that a Criminal Code search warrant would be applied for. At 8:45 p.m., the TWC faxed the document back to the affiant stating that he should expect a wait of about 2 ½ hours as there were four warrant applications in the queue.

[15] At 8:50 p.m., Const. Gales faxed 21 pages of material to the TWC which, according to the disclosure version provided the defence and the court (Exhibit #6, Tab 2), was a 1-page Telewarrant Fax Cover Sheet, describing the application as “Not Urgent”, followed by:

(1) A draft Modified Form 5.1 telewarrant to search the dwelling-house at 73 Mountainberry Road, Brampton – this 2-page document referred to Appendices A and B which did not follow the document. The draft warrant left blank the hours authorizing the police to enter and search within the dwelling.

(2) A Modified Form 1 ITO in support of the warrant application – this 2-page document, certified by Const. Gales pursuant to 487.1(3.1) of the Code, referred to attachments in the form of Appendix A (the things to be searched for), Appendix B (the indictable offence believed to have been committed), and Appendix C (grounds of belief). The ITO requested authority to execute the warrant at night with the reasonable grounds for doing so said to be in “Appendix C”. In the transmission, the 2 pages were immediately followed by:

(i) A 1-page PRPS Search Warrant Cover Sheet referring to the “Type of Warrant” as “Criminal Code/CDSA”

(ii) Appendix A (1 page), listing the items to be searched for, stating:

1. Hashish oil

2. Debt Lists

3. Scales

4. Packaging Materials

5. Currency

6. Cellular Telephones

7. Black revolver handgun

8. Black Rifle

9. Ammunition

10. Documentation

(iii) a 1-page Appendix B listing 4 offences, believed to have been committed by Karmvir Athwal: (1) possession of hash oil contrary to s. 4(1) of the CDSA (2) possession of hash oil for the purpose of trafficking contrary to s. 5(2) of the CDSA (3) unlawful possession of “a handgun” contrary to s. 91(1) of the Code, and (4) unlawful possession of “a handgun” contrary to s. 91(1) of the Code

(iv) Appendix C (8 pages) titled “(Grounds of Belief) In the Matter of a Warrant to Search the residence located at: 73 Mountainberry Road, Brampton ON”

(v) Appendix D (4 pages) titled “This Appendix “D” Forms Part of the “Warrant to Search” for the Dwelling House Located 73 Mountainberry Road, Brampton”

(vi) a 1-page draft Sealing Order relating to the sealing of the warrant application.

[16] The document pages described above at 2(iv) and (v) are redacted in the Exhibit #6 disclosure copy, apparently to protect the identity of the CI. Although Const. Gales testified before this court that he intended Appendix D to be part of his ITO, Appendix D is not referenced in the certified 2-page Modified Form 1 ITO or in Appendix C. The Exhibit #6, Tab 2 collection of documents, assembled by an unidentified PRPS officer for disclosure purposes, contains no PRPS fax header information relating to phone number, time of transmission, or sequential page numbers.

[17] As Const. Gales drafted his application materials, he at all times anticipated a search on November 26 although he was uncertain whether this would involve a night-time entry to the Mountainberry dwelling. At all times, he expected that assistance would be required from the PRPS Tactical and Rescue Unit (TAC Unit) to execute the warrant, should it issue, as firearms were expected to be in the subject dwelling. The constable was unable to say when, during November 26, any officer contacted the TAC Unit to alert them to the pending warrant execution.

[18] At 10:08 p.m. on November 26, the TWC faxed material to Const. Gales which, according to the disclosure copy (Exhibit #6, Tab 3), consisted of:

(1) a 1-page Telewarrant Fax Cover Sheet signed by Justice of the Peace Frederiksen bearing this endorsement:

Approved/Sealed

NB. only items 7, 8, 9 in Appendix A permitted.

Separate CDSA Telewarrant to Search Required

for other items.

(2) a 1-page Sealing Order signed by the justice of the peace

(3) a signed, Modified Form 5.1 Telewarrant to Search the subject dwelling endorsed as having issued at 9:56 p.m. authorizing an entry and search between the hours of “10 pm and 11:59 pm” – attached were two appendices in this form:

(i) Appendix A with the justice of the peace’s handwriting and strike-outs of various language:

1. Hashish oil

2. Debt Lists

3. Scales

4. Packaging Materials ITEMS

5. Currency only 7, 8, 9

6. Cellular Telephones may be sought

7. Black revolver handgun under 487.1

8. Black Rifle

9. Ammunition

10. Documentation

(ii) Appendix B still containing 4 alleged offences including the 2 CDSA crimes.

[19] Const. Gales testified that a decision was made not to seek a separate CDSA search warrant. The officer interpreted Justice of the Peace Frederiksen’s endorsement as “probably” indicating that the officer did not have grounds for a drug search. On the witness’ evidence, views still persisted however that the police had reasonable and probable grounds to search for drugs. In his own view, the places where the police would search for guns would be the same places one would look for drugs.

Authorized Time For Warrant Execution Extended

[20] Given the after-10:00 p.m. time of issuance of the Code warrant to search for firearms and ammunition, and because more timely arrangements had not been made with the TAC Unit, less than 2 hours were available for a briefing, organization with the TAC Unit, travel to the dwelling, and entry to search.

[21] As a result, Const. Gales telephoned Justice of the Peace Frederiksen about how to amend the available time for execution of the warrant. This conversation was not audio-recorded. Const. Gales made no note of the time of the call. He has no recall of exactly what was said to him by the justice of the peace. To the witness’ recall, nothing was discussed in the brief call about the grounds for a search. Const. Gales testified that the justice of the peace recommended that the affiant forward a draft telewarrant with “the new times” and “a statement as to why more time was required”.

[22] Const. Gales prepared a 1-page Supplementary Fax Cover Sheet which identified that 4 additional pages were being faxed (Exhibit #6, Tab 4). The Supplementary Fax Cover Sheet, which made no reference to what search it related, included this text:

OFFICER’S STATEMENT

These additional pages, which were not received by the Telewarrant Centre, are to be incorporated in the Information to Obtain and draft warrant submitted in my original application of November 26, 2014.

All matters contained in these pages are true to my knowledge and belief.

____ [signed]

Signature of Officer

[23] The first page attached to the Cover Sheet was titled “Revised Telewarrant to Search”, and over the signature of Const. Gales, was this paragraph:

The initial application for a telewarrant to search was requested for November 26^th, 2014 and granted to be executed between the hours of 10:00 pm and 11:59 pm. Due to time constraints in assembling our Tactical Response Units, I’m requesting the hours be extended to 6:00 am on November 27^th, 2014.

[24] The remaining 3-pages faxed to the TWC at 10:37 p.m. were:

(1) a Modified Form 5.1 Telewarrant to Search (2 pp.) to search the applicant’s dwelling – no new time for entry and search was included – while Appendices A and B are referenced, they were not attached

(2) the final page is what would be page 2 of a Modified Form 1 ITO for a Telewarrant – it is not a copy of the original ITO page as it bears the signature of Const. Gales of a different appearance and although the page refers to Appendices B and C they are not attached – the text of the page also reads, “The informant says that he/she þ has no knowledge of a prior application for a warrant under this section …”.

[25] At 10:49 p.m., the TWC returned to Const. Gales the Supplementary Fax Cover Sheet, signed by Justice of the Peace Frederiksen with the handwritten words, “Approved/Sealed”. In the disclosure copy, Exhibit #6, Tab 5, the Cover Sheet was followed by:

(1) a 2-page Modified Form 5.1 Telewarrant to Search the applicant’s dwelling, issued at 10:45 p.m. and signed by the justice of the peace, authorizing entry and search between the hours of “10 pm Nov 26 and 6 a.m. Nov. 27 2014” – while the warrant referred to Appendices A and B, no appendices were attached

(2) the “Revised Telewarrant to Search” page forwarded by Const. Gales now bearing the handwriting “Approved” over the initials of the justice of the peace.

[26] Given confusion as to the precise documentation received by the TWC, this court accessed the sealed packet in the custody of the Ontario Court of Justice (OCJ) leading to production of a redacted copy thereof (Exhibit #4) containing the following documentation in the order found in the court file:

(1) a 2-page Application to Vary Sealing Order, dated February 3, 2015, signed by Justice Stribopoulos

(2) a 2-page unsigned Order for release of the sealed file to the prosecution for the purposes of editing and disclosure to the defence

(3) a 2-page Modified Form 5.1 Telewarrant to Search the applicant’s residence, signed by Justice of the Peace Frederiksen with a recorded issuance time of 10:45 p.m. November 26, 2014 authorizing entry to search between the hours of 10:00 p.m. on November 26, 2014 to 6:00 a.m. on November 27, 2014 – Appendices A and B, though referred to, are not attached – on the 1^st page in handwriting, with the initials of the justice of the peace, is the word “Amended”

(4) a 1-page undated document entitled “Revised Telewarrant to Search”, signed by Const. Gales and bearing the initials of the justice of the peace and the handwritten word, “Approved”

(5) a 2-page Modified Form 5.1 Telewarrant to Search the applicant’s residence, signed by Justice of the Peace Frederiksen with a recorded issuance time of 9:56 p.m. November 26, 2014 authorizing entry to search between 10:00 and 11:59 p.m. on November 26, 2014 – Appendices A and B, though referred to, are not attached – on the first page, above the initials of the justice of the peace is the handwritten word “Original”

(6) a 1-page Telewarrant Fax Cover Sheet from Const. Gales to the TWC stating that 20 pages were being faxed – the lower part of the form titled ‘Reply from a Justice of the Peace’, signed by Justice of the Peace Frederiksen, has the this handwriting:

Approved/Sealed

NB. only items 7, 8, 9 in Appendix A permitted.

Separate CDSA Telewarrant to Search Required

for other items.

(7) a 1-page Telewarrant Fax Cover Sheet identical to that described at para. (6) above

(8) a 1-page Appendix A with the handwriting of the justice of the peace amendment as set out in para. 18(3)(i) above

(9) a 1-page Appendix B describing 4 offences

(10) a 2-page Modified Form 1 in the form described at para. 15(2) above

(11) a 1-page Search Warrant Cover Sheet in the form described at para. 15(2)(i) above

(12) an 8 –page Appendix C in the form described at para. 15(2)(iv) above

(13) a 4-page Appendix D in the form described at para. 15(2)(v) above

(14) a 1-page draft sealing order in the form described at para. 15(2)(vi) above.

[27] According to Const. Gale’s testimony, he retrieved the transmitted warrant, apparently from the fax machine, at 10:56 p.m. on November 26 after which the police set out to execute the warrant. Const. Gales informed this court that it was his responsibility to hang onto the warrant which he considered to be the signed 2-page Modified Form 5.1 Telewarrant to Search issued at 10:45 p.m. which he retrieved at 10:56 p.m. as well as the Appendices A and B from the earlier telewarrant which had issued at 9:56 p.m. Const. Kerfoot testified that he received a copy of the warrant from Gales at about 10:55 p.m.

The Pre-Search Briefing

[28] At PRPS 21 Division, Const. Gales briefed other Criminal Investigation Bureau (CIB) officers who were assigned to execute the warrant at the applicant’s dwelling – Consts. Kerfoot, MacDonald, Rempel, Furlotte and Roberts. Const. Gales testified that the briefing began at 10:45 p.m. and was completed at 10:55 p.m.

[29] Although Const. Gales did not have the final telewarrant in hand during the briefing, he informed the others that the search authority was for two firearms and ammunition. From review of the trial and/or preliminary inquiry testimony of the relevant officers, this information was understood, excepting Const. Furlotte who, as is evident from his evidence at the preliminary inquiry, remained of the view that a drug search was still authorized:

Q. And what were you looking for?

A. For firearms and controlled substances.

[30] The six CIB officers all understood that Karmvir Athwal was the investigative target residing with his sister and parents at the Mountainberry dwelling and that he was subject to arrest. In the briefing, Const. Gales produced a photo of Karmvir Athwal and provided a description of the suspect as 5’ 11” in height and 230 lb., with dark hair and a goatee. At the briefing, no one mentioned the applicant’s name.

[31] During the briefing, the assembled officers saw some version of a telewarrant to search the applicant’s dwelling. At Exhibit #6, Tab 5, the parties asked to have inserted a duplicate second page of the telewarrant (bearing the signature of the justice of the peace and his authority to enter and search between the hours of 10:00 p.m. on November 26 and 6:00 a.m. on November 27) with the signatures of five CIB officers on the back of the page (excepting Const. Gales). To Const. Kerfoot’s recall, Const. Gales did the briefing with the ITO and Appendices A and B. The officer’s notes record “reviewed the warrant” which he recalled as being Appendix A “and the telewarrant itself”.

[32] In his in-chief testimony, Const. Kerfoot gave this evidence respecting the copy of the telewarrant he reviewed and signed at 10:55 p.m.:

Q. When you describe reviewing the search warrant, what items comprised the document that you reviewed and then signed to reflect that you had reviewed them?

A. It was the telewarrant, the Information to Obtain along with the Appendix A and B.

Q. And when you say “the telewarrant”, which document are you referring to?

A. I’m referring to the document in Tab 5 [of Exhibit #6] … page numbers 2 and 3.

In his evidence, Const. Kerfoot was unable to say if the warrant he reviewed was a stapled group of pages or a “loose” collection. He could not recall the sequence of pages, which included Appendices A and B, or whether the page he signed was the last page in the grouping of pages.

[33] This court heard no evidence from the numerous police witnesses as to the nature of the briefing of the six TAC Unit officers who joined in execution of the search warrant.

[34] PRPS Inspector Ken Delaney, the officer in charge of Learning & Development including the Training Bureau, through reference to the PRPS direction ‘I-B-745(F) Search Warrants-Obtaining and Executing’ (Exhibit #3), testified that there should be a search operational plan typically in writing and he would certainly expect this when the TAC Unit was involved (section N 1 C vii addressing “a clear investigative plan and strategy for the Warrant execution”). The inspector added that the operational plan for a residential search would include the identity of who would reasonably be expected in the premises at the time of the search and, he would anticipate, reference as well to what to do with “non-suspects” “in” the premises. No operational plan for the search of the Mountainberry dwelling was produced or referenced by any of the police witnesses involved in the search of the applicant’s dwelling.

The TAC Unit Operation – The Applicant is Detained

[35] PRPS Constable Cole Heffren was the TAC Unit team leader assisting in the execution of the warrant to search the applicant’s dwelling on November 27, 2014. There were a total of six TAC Unit officers who had their own vehicles including an armoured vehicle.

[36] Insofar as the role of a TAC Unit, Inspector Delaney described its function as establishing a safe and controlled environment for police investigators to be able to carry out a search by isolating, containing, controlling, and stabilizing a scene. The Unit must however act responsively to circumstances on a case-by-case basis.

[37] Inspector Delaney was questioned with reference to the PRPS directive, I-B-745(F) Search Warrants – Obtaining and Executing, section ‘N. Execution of a Search Warrant/Search of Premises’:

1. The Canadian Charter of Rights and Freedoms protects all persons in Canada against unreasonable search and seizure. All searches must be conducted in accordance with the following:

This text is followed by 17 subparagraphs, (a) to (q) including:

(i) Searches shall be conducted according to law …

(p) conducting searches of persons located within the premises shall be conducted with due consideration for the person being searched …

The inspector testified that the directive contains no specific reference as to what the Charter requires by way of standards during the execution of a search warrant. The directive contained no information respecting the detention of individuals at the scene where a warrant was being executed. The witness informed the court that police officers are expected “to be independently aware of relevant caselaw” and up to date on relevant matters through the Service’s portals, training bulletins and different information sources on case law. The PRPS also has separate directives respecting use of force, and, investigative detention.

[38] While the six CIB officers arrived in the close vicinity of 73 Mountainberry Road some time after midnight, the TAC Unit arrived at 1:56 a.m. on November 27. Const. Heffren understood that there was a warrant to search for firearms and that the investigative target was Karmvir Athwal who resided with his family. He also had a physical description of the suspect.

[39] The TAC Unit’s armoured vehicle was parked diagonally across the lower part of the driveway of the detached dwelling at 73 Mountainberry Road. The CIB search officers remained on the street but back from the dwelling. Uniformed officers blocked each end of the street. Three canine officers covered the rear of the residence. Const. Heffren’s plan was to contain the residence.

[40] The TAC Unit officers wore bullet proofs and carried .223 calibre long guns. Const. Heffren believed that Karmvir Athwal was in the dwelling. Using a loud-hailer, the occupants of the dwelling were called out of the dwelling by the police with “incredibly loud” commands to establish control (“Occupants of 73 Mountainberry, this is the Peel Regional Police Tactical Unit. We have a search warrant for the residence. Please come to the door with your hands empty and open”). When the front door opened, and dogs were heard barking in the home, orders were issued to contain the dogs in a closed bathroom before exiting one by one.

[41] The applicant’s sister, Jasmine Athwal, exited the dwelling first. When she reached Const. Heffren’s location, she was not patted down. The officer simply said, “Show me your waist”, and turned her over to a CIB officer relating that he had not patted her down.

[42] The second person to exit also walking backwards, while some TAC Unit officers kept their rifles trained on him, was Kumerjeet Athwal, the applicant’s father. Const. Heffren “took carriage” of him and performed a quick pat-down search before turning him over to a CIB Officer.

[43] Const. Heffren testified that the last person to leave the dwelling was a younger male. To the witness’ recall, this person was probably dressed in sleeping clothing. He was called back and patted down. The officer took no steps to try to identify this occupant of the home – he was not 230 pounds and clearly “he was not who we were looking for” – “it was not Karmvir”. In cross-examination, the witness gave this evidence:

Q. By the time you cuffed Mr. Athwal, you were of the clear opinion that he was not the target of the investigation, he wasn’t Karmvir Athwal?

A. Uh, that’s right.

[44] The constable informed the court that he took physical control of the applicant and handcuffed him to the rear with flex cuffs. The applicant was not told why he was handcuffed or when the cuffs would be removed. In his in-chief evidence, Const. Heffren stated:

Q. And why did you place the younger male in flex cuffs?

A. Uhm, although I knew, or at least in my opinion [he] wasn’t the target of this investigation, in the consideration of you know everyone’s safety at that point, I thought it would be prudent to … the reason I didn’t do that with the older male, the father, and what I thought was the mother, was … you know in my estimation, I didn’t see them as a big a safety threat as the younger male.

Q. So what was it about this younger male that made you believe he was a safety threat?

A. Uhm, I don’t know that there was anything specific about him that made it … made me feel that way … it’s just, uhm, you know I thought it prudent in that circumstance, uh, as we do in most circumstances, I thought it prudent that we cuff the male.

[45] Const. Heffren recalled that he had minimal discussion with the applicant, telling him there was a search warrant for the residence, inquiring as to where the dogs were, and asking if anyone remained inside, before saying “I’ll turn you over to the CIB guys and they can explain the rest to you”.

[46] In cross-examination, Const. Heffren justified handcuffing the applicant, and not the other occupants of the dwelling, on the basis that the applicant was in the residence his Unit was containing:

A. … it was a judgment call on my part, you know, based on their age, uh, you know, the … essentially it was just based on their age and, uh, you know, uh, after doing the pat down, I felt comfortable not flex-cuffing them…

Q. What distinguished Mr. Athwal from the other two individuals, is he was a young man and young men are more likely to be involved with firearms, is that fair as to what was going through your mind?

A. I wouldn’t necessarily agree with that, it was just, uhm, you know based on, you know, the physicality of a younger person, you know, there was a greater opportunity for him to do something if he had chosen to … not to say that he did or would have, but, uhm, as I said it was a judgment call made on my part based on my, uhm, you know the person’s age and, uhm, the situation I was in.

Q. And your training includes procedures to handcuff people … multiple people quickly and sort out the situation later?

A. Yeah, that’s fair.

Q. Including sorting out people’s identities later when you’re executing a search warrant?

A. Right, identities after the place has been secured.

Q. You’ve described handcuffing Mr. Athwal as being prudent in the circumstances. I’m guessing that what you did to Mr. Athwal, handcuffing him in the manner that you did, wasn’t an unusual circumstance, it’s something that is part of your training that often happens when search warrants are executed?

A. That’s correct, yes.

[47] In re-examination, Const. Heffren provided additional information:

Q. And my friend also was asking you about handcuffing Mr. Athwal was not an unusual circumstance and you agreed with that. What do you mean?

A. Uh, it’s not unusual when we execute, uh warrants, you know, high-risk warrants where there can be firearms in a residence, that we will handcuff or flex-cuff, you know, all parties in a residence until, you know, we determine that, uh, they have nothing … no weapons on them or the residence is safe.

[48] Const. Heffren informed the court that he thought that the PRPS had training materials, policies or standing orders respecting the detention of persons at the scene of the execution of a search warrant. When the officer could not precisely identify the relevant material, Mr. Henderson made a disclosure request resulting in the testimony from Inspector Delaney.

[49] To Const. Heffren’s recall, when asked, either the applicant told him that no one else remained in the residence or he may have been given this information by one of the other occupants of the dwelling.

[50] Inspector Delaney described flex cuffs as a zip-tie-like device with plastic ties looping into one another and locking in place in one direction. They are one-use, disposable handcuffs issued to TAC Unit officers, not to front-line officers. Flex cuffs are light to carry, easy to access, and allow for the cuffing of multiple persons quickly. In the inspector’s view, the use of flex cuffs, to control an individual, must be reasonable in the circumstances. These cuffs are intended only as “a temporary measure” of restraint. Beneath the titlage “Other Points of Understanding”, in PRPS directive, I-B-745(F) Search Warrants – Obtaining Executing, is this paragraph:

Where flex cuffs are used as restraints Tactical and Rescue Unit members shall facilitate the safe removal of cuffs and assist the investigative team with transference to standardized cuffing.

Inspector Delaney testified that the intent is for flex cuffs to be removed as soon as practicable. A CIB investigator should inform a TAC Unit member to remove the flex cuffs.

[51] Const. Heffren described flex cuffs as having a small plastic piece of about one inch in length between the two cuff loops. All TAC Unit officers are issued a small set of scissors with a plastic guard, to protect a detainee’s skin, for use in cutting off flex cuffs. While a knife could also be used to remove flex cuffs, there would be a greater risk of cutting the detainee’s skin.

[52] Const. Heffren testified that flex cuffs are used for “dynamic entries”, and in particular when “we are detaining a lot of people” while a search warrant is executed. One TAC Unit officer will perform pat downs of all persons “inside” a dwelling prior to these found-ins being restrained with flex cuffs, with the exception of the very young or elderly. In cross-examination, Const. Heffren was asked what the officers’ training dictated insofar as the use of flex cuffs. Following an obvious pause, the witness stated that there was no specific training – the applicant’s treatment was no different than for “an ordinary individual” when a high-risk warrant is executed “in” a residence – as standard practice, “we detain everyone in a residence until the suspect is identified”. The restraint is perceived necessary until it is determined that there are no weapons and the residence is “safe”.

CIB Takes Over Custody of the Applicant

[53] Const. Heffren did not relate to any CIB officer why flex cuffs had been placed upon the applicant.

[54] Const. Kerfoot testified that, at about 2:01 a.m., as he and Const. Gales were together, Const. Heffren brought all three occupants of the Mountainberry dwelling to their location and into their custody. The CIB officers were parked down the street, three or four properties from the subject dwelling. On receiving the turn-over of the applicant, Const. Kerfoot “very quickly” concluded that he was not Karmvir Athwal, their 230-pound target. Although Const. Heffren had not said whether the applicant was under arrest, Const. Kerfoot did not believe the applicant was under arrest. He did not consider the applicant to be arrestable or a safety risk. He had no information from the TAC Unit as to why the applicant was under restraint or that he posed a safety concern.

[55] Asked at the preliminary inquiry why the flex cuffs were not removed right away when the applicant was turned over by Const. Heffren, Const. Kerfoot responded, “I couldn’t say”. Const. Kerfoot testified here that he did not have the “special tool” to remove the flex cuffs. The constable did not seek to have a TAC Unit officer remove the flex cuffs – the TAC Unit officers had set about their own duties to “clear” the dwelling.

[56] Const. Kerfoot testified that he informed the Athwal family members that a Criminal Code search warrant was being executed in their home, that he was uncertain how long that would take, that they were free to leave and he would call them once the process was completed. The officer testified that he also said that he would like to speak with them. On the officer’s evidence, the applicant’s father and sister “did not want to speak to me” – they then walked away unsupervised by any police officer. Kumerjeet Athwal spoke of contacting his lawyer.

[57] Const. Gales testified that none of the three “found-ins” from the dwelling house were their suspect, Karmvir Athwal. The officer testified that, at a distance apart from the applicant, he spoke to the applicant’s father and sister recording their names and dates of birth. One of the family members also provided the applicant’s date of birth. Kumerjeet Athwal requested a jacket from the residence and Jasmine Athwal asked for her cellphone. Const. Gales undertook to obtain these items once the TAC Unit officers turned over the residence.

[58] At the preliminary inquiry, Const. Furlotte testified that, at 2:09 a.m., Kumerjeet and Jasmine Athwal were in his vehicle for a couple of minutes while he obtained “their details”.

[59] Under cross-examination, Const. Kerfoot gave this evidence:

Q. If Mr. Athwal had been presented to you without the flex cuffs on, would he have been as free to leave as his father was and his sister was?

A. Yes.

Q. Fair to say you had custody of Dalvir Athwal during the period of time we’re talking about?

A. Yes.

Q. And the reason you had custody of him was, not because you had grounds to detain him, to suspect him of any crime or to arrest him. The reason you had custody of him was because he was in these flex cuffs which you were not in a position to remove?

A. That’s correct.

[60] According to Const. Kerfoot, after the applicant’s father and sister walked away, he, in his words, explained to the applicant “that as far as I was concerned, he was not under arrest at this point”. Although he had no recall of Const. Gales also speaking to the applicant outside their vehicle, the witness could not exclude that this may have occurred. He asked to have “a conversation” with the applicant who agreed. In cross-examination, the officer stated that he told the applicant that he “wanted to obtain a statement from him”. Const. Kerfoot made no note of exactly what was said during this exchange:

Q. Did you receive any response from Dalvir Athwal when you asked him whether he wanted to have a conversation?

A. He agreed.

Q. Do you recall how he agreed?

A. By saying, “Yes”.

Q. You haven’t made any note whatsoever about you asking Mr. Athwal, ‘does he wish to provide a statement’, and his response, according to your evidence, ‘yes’?

A. That’s correct, I didn’t make a note of the conversation between the whole family when I was ex…and then when I asked Mr. Athwal to have a conversation or when I spoke to the family and asked to have a conversation, there wasn’t a note made…

Q. That question was the important first step that triggered everything else – rights to counsel, caution, the statement?

A. Yeah, I agree.

Q. It was a key first question?

A. Yes.

Q. And it’s been omitted from your notes?

A. I didn’t make a note of that.

Q. Sorry?

A. It wasn’t omitted. I didn’t take it out. I just didn’t deal with it.

[61] Const. Kerfoot testified that he informed the applicant that although he was in flex cuffs, he was not “under arrest”. In his in-chief evidence, the witness stated that he told the applicant that the cuffs would be removed by the TAC Unit “once the search warrant was executed”. The applicant appeared to be in agreement and understanding respecting what he was being told. At the time, because Const. Kerfoot had no idea how long it might take for the TAC Unit officers to clear the residence (it “could be a long time”), he gave the applicant no time estimate as to when the flex cuffs might be removed.

[62] Const. Kerfoot considered that he had “custody” of the applicant. He placed the applicant in the back of his police vehicle with the doors closed because it was a residential area, the applicant would not be embarrassed standing outside in cuffs, and he wanted to speak to the applicant with some privacy.

[63] Const. Kerfoot informed the court that he was, at the time, unsure what the applicant might be thinking so, at 2:04 a.m., he read rights to counsel from his notebook, followed by a caution at 2:07 a.m. If the applicant had declined to speak with him, he would not have given the applicant his right to counsel or a caution:

Q. Had Mr. Athwal declined to speak with you, would you have read him his rights to counsel and caution?

A. No, I wouldn’t have. As I explained earlier, I wasn’t sure when he did agree to have a conversation, what his own subjective state of mind was, and I only felt it was fair where we’re having a conversation to go over his rights to counsel and caution.

[64] Const. Kerfoot testified that the applicant understood the s. 10(b) Charter right and did not ask to speak to a lawyer.

[65] The modified caution read to the applicant was:

As I explained right now you haven’t been arrested for anything, we are executing a Criminal Code search warrant on your house as I already explained as soon as Tac finishes with the house I will have a Tac officer take the flex cuffs off of you. I am a police officer you do not have to speak to me, but anything that you do say can be used as evidence.

Const. Kerfoot agreed that he omitted the words from the primary caution, “You are not obliged to …”, and gave no secondary caution to the applicant.

[66] According to Const. Kerfoot, these communications to the applicant were all in the presence of Const. Gales who was seated in the front passenger seat of the police vehicle in the course of an interview which followed. Const. Kerfoot did not recall Const. Gales speaking to the applicant outside the police vehicle or in the vehicle but could not exclude the possibility that this may have occurred.

[67] Const. Gales testified that he had no direct dealings with the applicant from the time of his extraction from the residence up to 2:25 a.m. The officer was certain that he was not in a police vehicle with Const. Kerfoot and the applicant. Before this court, the witness was uncertain as to Kerfoot’s whereabouts. At the preliminary inquiry, Const. Gales testified that, during this time period, Const. Kerfoot was speaking with the applicant in a police vehicle and “It wasn’t my place to come over and start asking questions”.

[68] Const. Kerfoot first recorded the applicant’s name and date of birth (Dec. 31, 1987) and his phone numbers and his occupation. The applicant was polite and cooperative. He noted that he then asked five questions, writing contemporaneously during the interview:

Q. How long have you lived at 73 Mountainberry?

A. Just over 5 years.

Q. Who lives in the residence?

A. My mom and dad, sister (Jasmine) and brother (Karmvir), there are 2 dogs in the house, my mom is at work, she should be home by 0400 and my brother at 0600.

Q. Whereabouts is your room?

A. It’s on the second floor, the walls are painted yellow.

Q. Is there anything in your room that we should be concerned about?

A. No, there might be a little bit of drugs.

Q. Have you ever seen a gun in the house?

A. No.

[69] In his testimony, the officer stated that he made no threats or inducements to have the applicant respond. As to the question relating to the applicant’s room, Const. Kerfoot gave this evidence:

Q. And when you were asking Mr. Athwal in the back of the police cruiser which room was his, there was a clear investigative purpose for you asking that question?

A. Yes, I was trying to eliminate bedrooms.

The officer agreed that in executing a search warrant, an important preliminary step is to establish whose bedroom a certain room is.

[70] The officer agreed in cross-examination that it would be important during the search of the dwelling to establish to whom the various bedrooms belonged.

[71] Const. Kerfoot could not say how long the interview lasted, perhaps “a minute or two” – he did not know if he had completed the questioning by 2:10 a.m. Cross-examined as to whether he asked the applicant any other questions, the witness responded, “Not that I recall … not that I have noted down”. The constable acknowledged that the 20-minute or so time period between 2:04 and 2:25 a.m. was definitely longer than the time it took to provide the s. 10(b) Charter right, the cautions, and to secure the above-described information from the applicant. Asked if the remainder of the time period was spent sitting in silence, the witness expressed the view that perhaps there had been conversation between himself and Const. Gales or between Const. Gales and the applicant.

[72] Const. Kerfoot testified at the preliminary inquiry that he did not consider the applicant’s answer, relating to having “a little bit of drugs” in his bedroom, to be serious enough to justify an immediate arrest for possession of an illicit drug. The officer passed along what he learned from the applicant to the other CIB officers including the location of the applicant’s bedroom.

[73] The TAC Unit searched the dwelling finding no one else inside. At 2:25 a.m. the TAC Unit turned the dwelling over to the CIB officers to conduct the search. Const. Kerfoot recalled that, at the location where he was with the applicant, the flex cuffs were removed. Const. Heffren cannot recall if he was the officer who removed the cuffs. The applicant was then told he was free to go. He departed by car with his father and sister.

Search of the Dwelling

[74] Const. Gales testified that the searchers intended to rely upon the first telewarrant and the amendment from the second telewarrant. Asked what documents were brought to the scene of the search, the witness, in his evidence in-chief, gave this evidence:

Q. Were you responsible for hanging onto the warrant or was that someone else’s responsibility?

A. It was my responsibility.

At this point, the court interjected, seeking to have Crown counsel clarify what “the warrant” was.

Q. Which warrants did you rely on?

A. The second returned warrant with the amended times with the appendices that were originally returned by the justice of the peace as the justice of the peace amended Appendix A for the items we could search for.

[75] In cross-examination, the subject was revisited:

Q. At the time the search warrant was executed, did you bring with you any of the documents that we’ve just identified through Tab 2 to 5 [of Exhibit #6]?

A. I did, yes, I brought a copy of the telewarrant along with the appendices but it was a copy of it.

Q. Now when you say “a copy” of the telewarrant, do you mean the telewarrant that we find at Tab 3 or the telewarrant that we find at Tab 5?

A. The telewarrant that we find at Tab 5 with the amended times.

Q. And at the time you’re executing the search warrant, you say you had also appendices?

A. Uh, yes, Appendice A and Appendice B.

Q. And are these the revised appendices that we find at Tab 3?

A. Yes, it would have been.

[76] According to Const. Gales, following “common practice” a copy of the warrant, four pages in length, was given to the occupants of the dwelling although he was unable to say with whom the copy was left.

[77] Const. Kerfoot was unable to recall who took, or had, a copy of the warrant at the scene of the search. He believes a 4-page warrant was on site. The officer believes the TAC Unit would not have entered the dwelling without a copy of the search warrant. Const. Kerfoot did not check to see what document the TAC Unit had. He also has no recall seeing any occupant of the dwelling in possession of a copy of the warrant. Questioned as to where the final warrant is which authorized the November 27, 2014 search of the dwelling at 73 Mountainberry Road, the officer gave this evidence in-chief:

Q. Did you retain a copy of that document for your records?

A. I did.

Q. And did you retain it in the format of the 4-page compilation that you have described or is it in some other format?

A. It was in a compilation as far as a chronological order as far as when items were sent and then received.

Q. What I’m talking about specifically is the document that you described as the 2 pages of the warrant that’s found at Tab 5 in addition to Appendices A and B, you described that that document would have been given out – did you keep a copy of what would have been given out?

A. I did. That wasn’t kept specifically those 4 pages together. The way I had it organized as far as was the original 20 pages that Constable Gales sent, the fax received, the next fax that was … the next documents that they were sent, the next fax that was received.

Q. And is there any record that you kept of specifically those 4 pages that would have been brought with you or brought with someone?

COURT: Ms. Fedak-Tarnopolsky is trying to determine what the contours were of what I’m going to describe as the “final telewarrant” that was handed to the TAC team leader and to the homeowner? How many pages was that document?

A. As I say, it would have been a 4-page document.

COURT: And you kept a copy of that did you? You retained a copy was the question I believe Crown counsel asked.

A. Yes, I have a copy. If you’re asking me if I have a copy of the actual 4 pages, the photocopy that was provided to them …

COURT: Yes.

A. … that’s just compiled along with everything else.

COURT: I don’t understand that answer.

A. So, I have copies of the original 20 pages that were sent to the JP, the fax that was returned, the next copy that Constable Gales sent to the JP and then the fax that was received back, so I didn’t have … I don’t have everything organized.

COURT: So you did not retain a copy is what your answer is, of the final telewarrant that was given to the TAC team leader to authorize him to enter the premises?

A. Well no, I have a copy of that.

COURT: Can you show it to us?

A. It would be in my shadow file right over there.

CROWN COUNSEL: Perhaps I can just ask, is it organized …

A. But it’s not organized, sort of what you’re saying, as far as the 4 pages that were given to them, it’s organized chronologically.

COURT: So, I believe the answer is, he didn’t retain a copy.

CROWN COUNSEL: Is that accurate, that you didn’t retain the 4 pages in the format that they would have been held in on that day?

A. I have the 4 pages, but no, they’re not in the same format that was given out that day.

Q. And why did you not retain that same 4-page format?

A. It’s just the way I organized it in my file.

[78] Const. Kerfoot, as the officer-in-charge, did not participate in searching the residence. He assumed a monitoring role. Const. Anderson MacDonald, the exhibits officer, assigned various CIB officers areas of the dwelling to be searched.

[79] Const. Gales was assigned to search an upstairs bedroom, which he was informed, by an officer whose identity he cannot recall, belonged to the applicant. The officer seized a small quantity of hashish and one .380 calibre shell from a dresser. In a box on the floor behind a drawer underneath the bed, the constable seized a silver handgun and a quantity of ammunition. A letter addressed to the applicant was located somewhere in the room. The witness could not recall whether the letter was seized. A wallet was discovered in the bedroom with a William Osler Health Centre identification card of the applicant. The wallet was not seized.

[80] Const. Kerfoot testified that some drugs were found in the bedrooms believed to belong to Karmvir Athwal and to the applicant. Const. Furlotte also seized drug paraphernalia from Karmvir Athwal’s bedroom. At the preliminary inquiry, Const. MacDonald testified that 37.7 g. of some drug was seized from Karmvir Athwal’s bedroom.

[81] Constable Sean Roberts searched bedrooms believed to belong to the applicant’s parents (master bedroom) and his sister. Shotgun shells were seized from a dresser drawer in the master bedroom.

[82] The search of the dwelling was completed at 4:12 a.m.

Arrest of the Applicant

[83] Const. Kerfoot instructed Const. Roberts to arrest the applicant once he returned home after the Athwal family was notified that the search was completed.

[84] Const. Roberts waited outside the residence. At 3:48 a.m., the officer identified the applicant on his return to the Mountainberry dwelling. At 3:49 a.m., the officer arrested the applicant for unlawful possession of a firearm and possession of a controlled substance. The applicant was handcuffed to the rear, searched incident to arrest, and placed in the rear of an unmarked police vehicle.

[85] At the preliminary inquiry, Const. Roberts testified that while on the dwelling driveway, he informed the applicant that a gun had been found in his room as well as some hash.

[86] Constable Jeff Rempel testified that he observed Const. Roberts arrest the applicant. He was nearby, perhaps five or six feet away, to assist if necessary. The constable did not note the time of arrest or what was said to the applicant by Const. Roberts.

[87] Consts. Roberts and Rempel left the Mountainberry dwelling at 3:51 a.m. transporting the applicant to PRPS 21 Division arriving at 4:00 a.m. Const. Rempel was driving. According to Const. Roberts’ testimony, he did not read the applicant his s. 10(b) Charter right and two cautions from his notebook before leaving the scene – “it began on route to the station”. When the applicant asked to speak “now” to a lawyer, Rajiv Maharaj, but was unable to provide contact information, Const. Roberts informed the arrestee that he would find counsel’s phone number when they arrived at the Division.

[88] Const. Rempel informed this court that he has no idea if Const. Roberts read the applicant his rights while they were in the vehicle.

[89] Consts. Roberts and Rempel were extensively questioned at the preliminary inquiry, and again in these proceedings, respecting conversation with the applicant during the drive to 21 Division.

[90] Under cross-examination at the preliminary inquiry, Const. Roberts maintained that after reading the applicant his rights to counsel, cautioning him, and undertaking to try to contact Mr. Maharaj, there was no further discussion beyond the officer explaining the process of what would happen at the police facility:

A. There was a discussion only about the process about what’s going to happen once he gets back to the division.

Q. And neither you nor the other officer said nothing to my client and he didn’t say anything to you?

A. No…

Q. Did he have any questions about the process at that time?

A. Not that I recall, no.

No threats or promises were made to the applicant by himself or Const. Rempel while he was in their custody.

[91] Before this court, Const. Roberts again testified that he advised the applicant of the process to expect at 21 Division – the Staff Sergeant booking process followed by an interview where he would be asked questions which he would be free to answer or not. There was no discussion of “the incident” or any other subject. The witness gave this further evidence:

Q. And do you recall Const. Rempel was having a conversation or spoke to Mr. Athwal at all?

A. I do not recall him having a conversation.

Q. And did you ask Mr. Athwal any questions while you were explaining the process, did you ask Mr. Athwal any question about the offence before the court?

A. No, I did not.

Const. Roberts testified that once the applicant had requested to speak to counsel, he could not ask the applicant any questions because he would need to speak to a lawyer first.

[92] At the preliminary inquiry, when questioned as to any conversation which may have transpired in the vehicle between Const. Rempel and the applicant, Const. Roberts gave this evidence:

Q. Okay. And do you recall if Officer Rempel was speaking to Mr. Athwal?

A. I don’t recall his saying anything. I don’t I don’t recall.

Q. Okay. Did you – would you have made a note if Constable Rempel uttered any type of threat or made any promise to him in the vehicle?

A. Yes, I would’ve noted that for sure, yeah.

[93] Const. Roberts testified here to having no recall of Const. Rempel speaking with the applicant in the police vehicle.

[94] Const. Rempel gave this evidence at the preliminary inquiry:

Q. … is it fair to say your evidence is there was no discussion in the police vehicle between my client and yourself or Constable Roberts and my client in your presence?

A. I don’t remember a conversation, no.

A. He was being handcuffed and Constable Roberts was speaking to him and being placed in our car.

Q. And did you speak to to Mr. Dalvir Athwal at that point?

A. No, not at that point.

Q. And what about on the ride back to the division, did you speak to him at all?

A. I don’t recall any conversation on the way back.

Q. And do you recall anything that Const. Roberts may have been saying to Mr. Dalvir Athwal on the way back to the station?

A. No, I don’t.

[95] In his in-chief testimony in this proceeding, Const. Rempel gave this evidence:

Q. And do you recall if Const. Roberts was speaking to Mr. Athwal at all?

A. I don’t remember if he was speaking to him or not, I, I may have been on the phone trying to arrange an interview room to make sure one was available so, no, I don’t recall Const. Roberts speaking to him.

Q. And do you recall if, at any point, you spoke to Mr. Athwal during the drive?

A. During the drive, I’ve seen the transcripts from the interview I did, and I’ve watched the interview, and made note, uhm … the conversation that I would have had with him would have been just, uh, the procedure following the arrest which would be, uh, attending the division maybe speaking to a Staff Sergeant, uh, the yellow strips on the wall, uh, don’t touch those uh at the division as that’ll set the alarm off, and that we’ll be placing … he’ll be placed into an interview room and I’ll be speaking to him but nothing in reference to any of the case that was going on at his house.

Q. Do you recall anything that Const. Roberts was stating to Mr. Athwal?

A. I don’t recall, I don’t know whether Const. Roberts was reading him his rights in the car, I don’t remember …

Q. Do you recall if Mr. Athwal made any utterances to you or responded to any questions that you asked him?

A. No, I didn’t ask him any questions. It was more like I said, it was just like procedure as to what was going to happen.

[96] Const. Rempel was cross-examined upon passages in the transcript of the videotaped interview of the applicant which clearly suggested that additional conversation was conducted in the police vehicle.

(1) Q. Um, and again, we were in the car and, uh, when you were arrested we, we gave you your rights and told you all about your lawyer and stuff, and I know we chatted a little bit. So-, and I told you were coming here and we would talk a little bit more…

A. Mm-hmm. (nods)

Q. …um, in regards to this.

(emphasis added)

Const. Rempel testified that he “would have” told the applicant about the procedure at 21 Division but has no “specific” recall of this conversation.

(2) Q. This isn’t a spot that you do that, ‘cause this is a good hiding spot. It’s, it’s a solid spot underneath…

A. Mm-hmm.

Q. …underneath your bed.

A. Mm-hmm.

Q. Um, a lot of questions now come to my mind for-, and we discussed this a bit in the car.

(emphasis added)

Asked to explain what was “discussed … a bit in the car”, Const. Rempel told the court that this reference related to his explanation to the applicant as to why he and Const. Roberts were dressed in plainclothes and as they were and in an unmarked vehicle.

(3) Q. Some of them being just complete assholes, gangbangers, out…

A. Mm-hmm.

Q. …and I told, and I told you that. And I told you, when we first met that I’m not going to lie or try and trick you.

A. Mm-hmm.

Q. … or give you any of that stuff. Um, but a lot of gangbangers who are out carrying guns…

(emphasis added)

Const. Rempel indicated, in cross-examination, that he did not know why he made this reference. All he recalled was telling the applicant in the car that he would not seek to trick him. The witness also considered that properly understood, the middle question of this excerpt had no relation to the first question when this part of the interview is audited.

(4) Q. Um, again, just another option that we’re trying to come up with why you have this gun and, what your purpose of having it was. The last guy that I arrested, uh, for a gun…

A. Mm-hmm.

Q. …and the case I’m still dealing with, he had it-, and I told you this, he had it for protection. He led a bit of a , a, a bad life…

A. Mm-hmm.

Q. …in previous years. There’s a lot of people that were looking for him, so he thought he needed it for protection.

A. Mm-hmm.

Q. And I’m not-, he’s a nice guy. He’s got kids and family and he was turning his life around. But, again, had a gun on him…

A. Mm-hmm.

Q. …couldn’t-, he can’t carry a gun. He couldn’t have this gun. So we sat and discussed, and he, he told me why he had it and…

(emphasis added)

Cross-examined on this passage, Const. Rempel stated, “I don’t know why I said that”. The witness acknowledged a discussion about a prior arrestee:

A. I don’t know when I said that to him. I apologize. I may have said that to him in the police cruiser.

Q. That wouldn’t be part of a procedural type of conversation. That would be an investigative type of conversation, wouldn’t it?

A. No, because it has nothing to do with his investigation. I wasn’t asking him questions in regards to him or the evidence …

Q. Isn’t the reason that you describe the last case, or a recent case where a person had a gun for protection is to suggest to Mr. Athwal he too could have had a gun for protection as opposed to some other nefarious purpose?

A. I don’t know why I said that and now I wouldn’t have implied that.

(5) Q. All right? Um, so this is where, this is where I told you where I was going to give you an opportunity. I’ve got all my ideas, and I sway a lot in this case to not-, you not having that gun for any purpose other than just to have it.

A. Mm-hmm.

Q. You-, I don’t think at all that you’re robbing people. I don’t think that you were ever going to rob anyone or any place with it. To me, it almost is like you just had it to have it and that was, that was the thing. I don’t know if you bought it. I don’t know if someone bought it and gave it to you, or if you were holding it for…

A. Mm-hmm.

Q. somebody, which is another option. Um, but there’s all these variables…

A. Mm-hmm.

Q. …that we don’t know.

A. Mm-hmm.

Q. And that’s what I was saying in the car that I want to give you the opportunity. Um, and I know, I know your standpoint, but…

(emphasis added)

Const. Rempel explained his language in this passage as relating to having informed the applicant that he would have an opportunity to tell his story in an interview at the Division.

(6) Pretty serious stuff man. I know all that stuff really doesn’t mean a whole lot to you, but these are pretty serious charges, two through seven. Remember-, and what I was saying before, with a gun, possession of a gun carries a minimum sentence.

(emphasis added)

Const. Rempel testified to having no recall of discussing firearms sentencing with the applicant: “I don’t recall if I had that conversation with him in the police cruiser”.

(7) Q. … So you understand that you’re going to be held for a bail hearing?

A. Yes.

Q. And along with that bail hearing, because of the, the, uh, firearm and the ammunition, it’s a little bit more intense than just a normal bail hearing.

(emphasis added)

Const. Rempel was unable to recall whether bail was discussed in the police vehicle: “I don’t recall if I discussed that with him in the cruiser or not”.

[97] Pressed in cross-examination with the suggestion that there had in fact been a far more wide-ranging conversation on the way to 21 Division, not simply limited to procedural information, Const. Rempel maintained that he must have misunderstood the question he was asked at the preliminary inquiry (para. 92 above), when he testified to no recall of conversation in the police vehicle – he must have interpreted the question as relating to discussion about the gun investigation – “my mistake”. The witness further testified in this way:

Q. I’m going to suggest to you based upon the portions of the transcript I have just reviewed to you, that in the police cruiser you had a far more wide-ranging conversation with Mr. Athwal than just a conversation with Mr. Athwal than just a conversation limited to some minor procedural issues.

A. I don’t recall the exact conversation. I apologize. I didn’t ask him any questions in regards to the investigation at hand.

The PRPS 21 Division Booking Process

[98] Const. Roberts testified that, at 4:00 a.m., the applicant was taken before a Staff Sergeant in the 21 Division booking area. At this point, Roberts accessed a computer and, through an Internet search, obtained contact information for Rajiv Maharaj. The officer made a phonecall to the law office and left a recorded message with his identity, the arrestee’s name and what he had been arrested for, as well as contact information for a call-back by the lawyer.

[99] Const. Rempel, who had been assigned to interview the applicant, was in the booking area. He testified to being uninvolved in steps to secure counsel for the applicant. The witness maintained that his statement in the later interview of the applicant relating to Duty Counsel, “I called them for you”, was a “slip” as that did not take place.

[100] Const. Roberts did not ask the applicant whether he had other means of contacting Mr. Maharaj or whether he had the name of another counsel he wished to contact.

[101] Const. Roberts testified that, soon after, he advised the applicant that in his experience, because of the time of day, lawyers don’t return calls. He offered the applicant contact with Legal Aid Duty Counsel to which the applicant agreed. He made this offer so that the applicant would not be left sitting in a cell waiting for a call from counsel.

[102] Under cross-examination, Const. Roberts agreed that a station-release was unlikely for the applicant as gun charges routinely result in bail hearings. Asked, in these circumstances, why a quick call was set up with Duty Counsel, the officer stated that he just wanted to keep the applicant “in the loop”.

[103] At 4:12 a.m., Const. Roberts reached out to the Duty Counsel service. Between 4:18 and 4:21 a.m., the applicant had private access for communication with Duty Counsel. Const. Roberts did not ask the applicant whether he was content with the consultation provided by Duty Counsel.

[104] At about 4:26 a.m., Const. Roberts and a PRPS cells officer escorted the applicant to a CIB interview room.

The Videotaped Interview

[105] Const. Rempel believes that before he entered the interview room at 4:46 a.m., a setting equipped with videotaping capability, he was told by Const. Roberts that the applicant had spoken with Duty Counsel. Const. Roberts confirmed this communication.

[106] Const. Roberts was uncertain whether he informed Const. Rempel that the applicant had made an earlier request to speak to a specific lawyer. In his view, it was not important for Rempel to know as the applicant had spoken to Duty Counsel. Const. Rempel informed the court that he had made no inquiries about this subject as the applicant had consulted Duty Counsel.

[107] At the outset of the interview, on videotape, Const. Rempel confirmed that the applicant had received a call-back from Duty Counsel. The officer then described the seven firearm-related offences that he would be charged with.

[108] The constable communicated the s. 10(b) Charter right to counsel as well as the primary and secondary cautions. The applicant did not ask to speak to counsel. In cross-examination, Const. Rempel testified that these subjects were reviewed as “there may have been some confusion in this case”. The witness could point to no actual confusion but, as the applicant was not the target of the investigation, and may not have previously been told of the specific charges, the right to counsel was communicated.

[109] Const. Rempel testified that it was important for him to be aware, prior to interviewing a suspect as to what prior statements the arrestee had made. It was also important in this type of case to understand from whose room seizures had been made. Early in the interview, the officer stated:

… we located a firearm in your house … and more specifically, your bedroom, but we’ll get to that in a bit.

[110] Shortly afterward, as Const. Rempel sought to identify who occupied which bedrooms at the 73 Mountainberry Road dwelling, the applicant stated:

Uh, sorry, I’ve been instructed by duty counsel not to make any comments, sorry.

[111] The officer continued on, saying he was attempting to “sort out” the matter, before stating:

Q. And then right beside that room…

A. Mm-hmm.

Q. …is the bright yellow room, which I believe that you-, I think you told one of my partners or one of the officers on the scene that the bright yellow room was your room…

A. Mm-hmm. (nods)

Q. …at the beginning of the night, before anything was ever done. And that being your room.

[112] Const. Rempel testified that while he has no note, he believes Const. Kerfoot, at the search scene or at 21 Division, told him which bedroom was believed to be the applicant’s room.

[113] The interview concluded at 5:32 a.m. For the majority of the interview, the applicant employed one-word answers – “Mm-hmm”, “Okay”, “Yes”, “Yeah” and nodded his head routinely, an action which could be interpreted either as agreement or simply an acknowledgment of hearing what was said by the interviewer while adhering to the advice received from Duty Counsel not to substantively respond. At later points in the interview, the applicant again stated, “I’m gonna stick to what duty counsel advised me”, and, “Sorry man. I’ve got to stick to what duty counsel said”, and, “I’ve got to stick to what duty counsel advised me to, man. Sorry”. The applicant did not admit to possession of the seized firearm.

Subsequent Events

[114] In describing aspects of the prosecution evidence, Ms. Fedak-Tarnopolsky provided this information to the court:

(1) the seized firearm was swabbed for DNA with no results

(2) when an ammunition clip was fingerprinted, one print was recovered which was not a match to the applicant or to Karmvir or Kumerjeet Athwal

(3) a piece of undated mail, addressed to the applicant, was located somewhere in the bedroom said to belong to the applicant

(4) a wallet from a bedside table in that room was seized which contained a photo identification card of the applicant

(5) no statements were taken from other family members by the police.

ANALYSIS

Unreasonable Search/Seizure

Submissions

Applicant

[115] The s. 8 Charter issues first emerged when the court inquired as to the nature of the authority the police possessed when they entered on the Mountainberry property to initiate a night-time call-out of the dwelling occupants leading to the detention of the applicant. The record was unclear whether there was a Criminal Code warrant alone or whether there was ultimately a companion CDSA warrant as well. As incarnations of search warrant materials emerged, questions arose as to what search warrant was at the scene enabling the police officers to be in the lawful execution of their duties when interacting with the applicant, detaining him, and searching the dwelling.

[116] Mr. Henderson was at first inclined to argue the submitted s. 8 Charter breaches in the context of his s. 24(2) Charter submissions but ultimately, with leave, was granted the opportunity to make substantive submissions respecting this constitutional right. The Crown made no objection on the basis of standing. To alleviate notice concerns, Ms. Fedak-Tarnopolsky was provided the opportunity to file written argument, as well as additional exhibit material, to recall Consts. Kerfoot and Gales, and to consider the Crown’s position respecting a Garofoli step 6 procedure.

[117] Mr. Henderson raised a number of issues in furtherance of his submission that the applicant’s s. 8 Charter right was breached. This included:

(1) in the original telewarrant application, the affiant (Const. Gales) submitted an Appendix D, not referred to in the 2 pages of the sworn Modified Form 1 ITO or by reference in Appendix C of that ITO

(2) in the absence of Appendix D, there were no sworn grounds of belief upon which the justice of the peace could, acting judicially, be satisfied that reasonable grounds existed to search the Mountainberry dwelling

(3) an unlawful amendment procedure, outside the authority of the Criminal Code, occurred in support of a telewarrant granting the police 8 night-time hours to enter to search the dwelling

(4) in a related submission, the justice of the peace improperly delegated to the police the task of assembling the warrant to search on their own

(5) on the record in this proceeding, it is impossible to say, with the necessary degree of confidence, what court order was taken to the scene of the search to govern entry, searching and seizure.

[118] Mr. Henderson submitted that, on the record here, Appendix D formed no part of the sworn grounds of belief for the issuance of the telewarrant. The justice of the peace was not entitled to consider extrinsic material outside the 4-corners of the sworn ITO. To the extent that reliance was placed on such material to be satisfied that reasonable grounds existed for issuance of the warrant, the court lost jurisdiction.

[119] Counsel argued that resort to the filed, redacted version of Appendix C of the ITO, fails to disclose reasonable grounds upon which a justice of the peace could be satisfied that the statutory prerequisites for issuance of the warrant had been met. In particular, with respect to para. 9 of the ITO, there was no indicia of the CI’s reliability sufficient to authorize state intrusion of the dwelling.

[120] It was submitted that s. 487.1 of the Code provides a codified scheme for an application for a telewarrant. There is no statutory authority for an “amendment” application. A justice of the peace under Part XV of the Code has limited jurisdiction and no inherent jurisdiction to design parallel warrant procedures. Const. Gales was entitled to apply for a successive telewarrant, based on a completed Modified Form 1. Accepting that the affiant acted upon the directions of Justice of the Peace Frederiksen, the court lost jurisdiction in purporting to issue an amendment to an existing telewarrant without complying with s. 487.1 of the Code. Accordingly, entry to the dwelling at 73 Mountainberry Road at about 2:25 a.m. on November 27, 2014 was not authorized as the only valid telewarrant was the court order authorizing entry to search by 11:59 p.m. on November 26, 2014. Counsel further noted the s. 487.1(3.1) attestation/certification page which Const. Gales maintained he forwarded to the TWC does not exist in the original papers of the TWC filed with the Ontario Court of Justice in Brampton pursuant to s. 487.1(2.1) of the Code.

[121] A consequence of inventing an amendment procedure was, according to the applicant, that, over time, the police received two halves of a court order, improperly leaving it to the applying agency to assemble for itself what it viewed to be the appropriate court order to be used in the desired search. This entirely subverts the prior judicial authorization approach required as a constitutional norm.

[122] Finally, it was submitted that the applicant established, on a balance of probabilities, that this court cannot confidently determine that any recognizable warrant to search in fact existed at the scene of the search. In part related to the above-described ground relating to the executive branch constructing its own warrant, it was argued that no “final” 4-page telewarrant was produced in this proceeding as the written authority required to be on site pursuant to s. 29(1) of the Code, permitting the TAC team to enter on the 73 Mountainberry Road property and for searchers to enter the dwelling to search. It is said that, on the evidence, the court is left to guess as to what document purporting to be a warrant was left with the dwelling’s occupants or used to guide the police officers’ action on private property. The disclosure materials from Const. Kerfoot (Exhibit #6) differ from the content and order of documentation in the TWC packet (Exhibit #4). It is not for the defence, or the court, to sort through a trail of faxes and oral testimony, in an effort to figure out the contours of the court order executed at a dwelling.

Respondent

[123] On behalf of the Crown, Ms. Fedak-Tarnopolsky submitted that the grounds of belief placed before the justice of the peace in the ITO were not limited to the text of Appendix C. It is said that Appendix D simply “mirrors” Appendix C duplicating the information contained therein. Const. Gales believed, and intended, Appendix D to be part of his sworn application for a telewarrant – “Appendix D is not excluded when the officer swears to the warrant”. Appendices C and D before the justice of the peace, it is argued, “would have been considered to be all under oath”.

[124] Crown counsel submitted that if the court considered that Appendix D was not properly part of the sworn grounds of belief that, in any event, Appendix C provided sufficient information to the justice of the peace upon which he, and any justice of the peace acting reasonably and judicially, could be satisfied that reasonable grounds, pursuant to s. 487.1(4) of the Code, existed supporting issuance of a warrant. Appendix C indicated that the CI had been in the subject residence and had directly observed the firearms. The affiant described the CI to have “proven reliable” and, pursuant to R. v. Debot (1986), 30 C.C.C. (3d) 207 (Ont. C.A.) (affd [1989] 2 S.C.R. 1140), no specific indicia of reliability were required to be disclosed. As well, a police background check had confirmed the accuracy of the CI’s information as to Karmvir Athwal’s home address.

[125] Crown counsel conceded that there is no authority for a justice of the peace to purport to amend a prior search warrant – “The Crown concedes that it’s properly a second warrant. It is not an amended warrant”. That said, in the present case, although Const. Gales “followed an incorrect procedure” in not submitting a full ITO in support of issuance of a second telewarrant quadrupling the time for night-time entry from 2 to 8 hours, “both the officers as well as the justice of the peace were operating under the same misapprehension [that] the second warrant could serve as an amendment to the first warrant”. The same justice of the peace was involved in both applications made by Const. Gales and knew the circumstances relating to the requested warrant to search. The absence of the s. 487.1(3.1) attestation/certification page from the TWC records does “not unswear” the document that Const. Gales maintained that he forwarded to the TWC.

[126] Insofar as the position of the police having to combine 4 pages from 2 different telewarrants issued by the justice of the peace to make one (1) warrant, Crown counsel submitted that the actions of the officers proceed[ing] in compiling the two warrants would have been not only in accordance with what the justice of the peace would have been doing in accepting the second warrant as an amended warrant”.

[127] Ms. Fedak-Tarnopolsky submitted that the testimony of Consts. Kerfoot and Gales supports the conclusion that the warrant taken to the scene of the search was a compilation of 2 pages from a telewarrant issued on November 26, 2014 at 9:56 p.m. (Appendices A and B) together with 2 pages of a telewarrant issued at 10:45 p.m. The evidence of the police witnesses clearly established that the officers were searching only for firearms and ammunition and not for the longer menu of items in Const. Gales’ original draft of Appendix A.

Governing Principles

[128] In R. v. Persaud, 2016 ONSC 8110, at para. 69, I stated:

Section 487.1(1) of the Code permits a peace officer to apply for a telewarrant by facsimile transmission of “an information on oath”. A sworn information is in effect an affidavit. Just as an exhibit to an affidavit shall be referred to in, and attached to, the affidavit (Criminal Proceedings Rules for the Superior Court of Justice (Ontario), Rule 4.06(3)(a)), so too appendices to an ITO must be referred to in, and attached to, the ITO.

[129] Section 487.1(3.1) of the Code provides that alternative to an oath, an affiant for a telewarrant may make a statement in writing declaring “that all matters contained in the information are true to his or her knowledge or belief” – this attestation or certification where made “is deemed to be a statement under oath”.

[130] There is no authority in the Criminal Code for applying for an “amendment” of a search warrant once it has issued.

[131] The long-established, and most common, practice in Ontario has been that when an affiant is desirous of modifying an issued search warrant, for example to add or delete from the menu of things to be searched for, or to alter the time for execution, or to have a condition relating to execution endorsed on the warrant, an application is made under oath with a successive and brief ITO addressing the “new” issue and attaching as exhibits thereto copies of the original ITO and of the issued warrant. While this is sometimes referred to as an amendment application, it is actually a successive warrant applicant. Less common, is a “re-swearing” of an original ITO with added modification: see R. v. L.V.R., 2014 BCCA 349, at paras. 16-19 (leave to appeal refused [2016] S.C.C.A. No. 174).

[132] In some instances, an affiant’s grounds of belief in an ITO are exclusively, or nearly so, based upon information received from a CI. This form of hearsay may be sufficient to support reasonable grounds for the issuance of a warrant provided that the information is not vague, undetailed or stale and originates from a source having indicia of reliability or who is materially corroborated.

[133] The Debot factors (compelling information; credible/reliable informant; corroboration of CI’s information) do not each form a separate test. Reasonable grounds based exclusively on a CI’s information requires careful assessment of the totality of relevant circumstances: R. v. Amare, 2014 ONSC 4119, at paras. 83-84 (affd 2015 ONCA 673, at paras. 7-13); R. v. Poirier, 2016 ONCA 582, at para. 65; R. v. Dhillon, 2010 ONCA 582, at paras. 27-30, 66; R. v. Dabreo, 2016 ONSC 1907, at paras. 134-139.

[134] Where the Crown proceeds to defend the validity of a search warrant on the basis of a redacted ITO, it cannot purport to rely upon a submission that the police in fact had more grounds in the undisclosed material: R. v. Blake (2010), 2010 ONCA 1, 251 C.C.C. (3d) 4 (Ont. C.A.), at paras. 15-17; R. v. Dhillon (2010), 2010 ONCA 582, 260 C.C.C. (3d) 53 (Ont. C.A.), at para. 63.

Discussion

[135] I accept the applicant’s submission that Appendix D did not properly form a part of Const. Gales’ ITO. The 4 pages were not referred to in the sworn Modified Form 1 ITO, nor referenced in the Appendix C grounds of belief. The Appendix is self-described, according to its heading, as part of the warrant to search, not the ITO. While the affiant may have intended Appendix D to be part of his sworn ITO, it fell outside the four corners of the affidavit.

[136] Appendix D is not a mirror of para. 9 of Appendix C. It appears to disclose a broader description of the CI and his or her background and activities. It is unknown, of course, whether the justice of the peace relied upon this information to issue the telewarrant. For two reasons, it seems likely that the court did consider the appendice’s contents. First, the justice of the peace forwarded no communication commenting upon the appendix when forwarding the 9:56 p.m. telewarrant with his modifications to Appendix A. Second, in the absence of the information in that appendix, there are no reasonable grounds in Appendix C upon which a justice of the peace, acting independently and judicially, could issue the warrant.

[137] Picking up on the latter point, insofar as information from the CI, pages 6 to 8 of the redacted ITO indicate that:

(1) the PRPS had “a proven, reliable informant”

(2) on some unidentified date in October 2014, the CI provided the police information that Karmvir Athwal, a drug dealer, resided at 73 Mountainberry Road, Brampton

(3) the CI had purchased hash oil from Karmvir Athwal on an unknown date

(4) the CI believed Karmvir Athwal to have a large customer base for his trafficking of hash oil

(5) on some unidentified date, or dates, when in Karmvir’s residence, the CI observed a black revolver style handgun, a black rifle, and ammunition.

[138] In terms of police investigation, the ITO discloses that Karmvir Athwal:

(1) was cautioned by the PRPS 3 years earlier for being in possession of marihuana

(2) had no prior criminal record or outstanding charges

(3) currently resided at 73 Mountainberry Road, Brampton

(4) did not possess a licence to lawfully possess a restricted or non-restricted firearm in Canada.

[139] Turning first to the degree of detail provided by the CI, while there is an assertion of direct knowledge, and a claim on November 26, 2014 by the affiant of “fresh” information, it is unknown when in October 2014 the CI spoke to the police and when, prior to speaking to the police, the CI made observations within the dwelling.

[140] As to the credibility of the CI, on the face of Appendix C, it is unknown whether the CI has a prior criminal record or outstanding charges. Though labelled as “proven reliable”, it is not clear whether this is on the basis of a track record of providing reliable information in the past, or because the affiant believes the police have corroborated the CI’s information, or for some other unstated reason.

[141] The submitted corroboration is immaterial and weak.

[142] On a totality of circumstances assessment, there were no reasonable grounds upon which a justice of the peace could issue a warrant to search the Mountainberry dwelling. Even if one could conclude that Appendix D formed part of the ITO, in its redacted form the appendix does not alter this conclusion.

[143] The Crown properly conceded that the purported amendment process was non-compliant with Part XV of the Code. A justice of the peace has no inherent jurisdiction to create an amendment process outside the codified procedure in s. 487.1. Apparently on the advice of the justice of the peace, Const. Gales attempted a short-form application as opposed to a successive application for a complete second telewarrant, which itself led to further problems.

[144] Section 487.1(6)(a) of the Code provides authority to a justice of the peace to complete and sign “the warrant in Form 5.1” and, pursuant to s. 487.1(6)(c) shall file “the warrant” with the clerk of the court for the territorial division in which the warrant is intended for execution. In the present case, the justice of the peace issued two telewarrants, one at 9:56 p.m. with Appendices A and B and a second signed telewarrant at 10:45 p.m. with no appendices. Leaving to the side whether, in these circumstances, there is ‘proof of authorization’ as described in s. 487.1(11) respecting a Form 5.1 warrant having issued, as discussed earlier, the court improperly issued two of these telewarrants leaving it to the affiant or designate from the applicant police force to combine the two warrants into one. Not only did this ‘some assembly required’ approach to a court order result in an invalid warrant, but it also risked the police using the original Appendix A and Appendix B. On this point, I believe, on balance, that the police intended to restrict themselves to searching for only the 3 items which remained in the Appendix A faxed by the TWC at 10:08 p.m. on November 26, 2014.

[145] But the question still remains, where is the “final” search warrant in the form used to guide the conduct of the TAC and CIB officers on November 27, 2014, a copy of which was to be served on a person present and ostensibly in control of the dwelling pursuant to s. 487.1(7)? The answer appears to be somewhere, more or less, in Const. Kerfoot’s “shadow file” in a stack of faxes.

[146] On balance, the applicant has established that, on November 27, 2014, the dwelling at 73 Mountainberry Road was not the subject of entry, search and seizures therein pursuant to a valid search warrant – a breach of the applicant’s s. 8 Charter right.

Arbitrary Detention

Submissions

Applicant

[147] Mr. Henderson submitted that the applicant’s detention began in the call-out when he was commanded at gun-point, by the TAC Unit, to exit the dwelling walking backwards with his hands exposed. It is said that certainly by the point in time when Const. Heffren took physical control of the applicant, handcuffing and pat-down searching him, there could be no argument but that the applicant was detained in a constitutional sense.

[148] Mr. Henderson took no issue with the police action of calling the occupants out of the dwelling given the telewarrant to search for firearms and the belief that Karmvir was inside. While this exercise of police power was not an investigative detention, or detention incidental to a safety search as described in R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, and may have no clear label at common law, if exercised reasonably with the minimum restraint of liberty necessary to accomplish the objectives of safe police entry to a subject premises, and, safety while executing a warrant inside, there can be no constitutional complaint.

[149] It was argued that the exercise of this power is however limited to implementing safe conditions and does not include detention to compel identification of all persons present at the subject premises.

[150] It was argued that the differential treatment of the applicant, when compared to other family members, was arbitrary in terms of a pat-down search and handcuffing, seemingly based on the application of routine policy, without reasonable suspicion or grounds to believe the applicant posed a safety risk or was engaged in criminal activity. Const. Heffren recognized that the applicant was not Karmvir Athwal. The officer, himself armed and one of over a dozen police officers at the scene, engaged in what counsel described as “low level profiling” – targeting a young male outside the dwelling for very intrusive restraint. In his testimony, Const. Heffren could not articulate any safety concern posed by the applicant.

[151] Mr. Henderson submitted that the physical and psychological detention, and the manner of detention, of the applicant became a matter of convenience and expedience for the police which allowed the police to piggyback onto an unlawful restraint of liberty, investigative questioning relating to execution of the search warrant.

[152] Counsel argued that at the point of transfer of custody of the applicant to Const. Kerfoot, this officer too recognized that the detainee was not Karmvir. Const. Heffren gave Const. Kerfoot no reason for the applicant’s detention. Const. Kerfoot did not see the applicant as a threat to officer safety. Rather than quickly removing the flex cuffs at the point of transfer, the restraint was left in place as the applicant’s other family members were permitted to walk away.

[153] It was submitted that the severity of the arbitrary detention was stepped up with the applicant placed in the rear of a police vehicle by Const. Kerfoot with the doors closed, handcuffed to the rear, with the time of his release contingent on the uncertain schedule of other police officers performing duties at the scene. On the evidence, it is unclear that Const. Kerfoot actually understood the detention status of the applicant.

[154] The arbitrary detention was far from momentary – it approached 30 minutes combining the applicant’s restraint outside followed by about 21 minutes in the police vehicle. The detention ended with the applicant’s removal from the vehicle and the cutting off of the flex cuffs allowing him to finally depart with the other members of his family.

Respondent

[155] On behalf of the Crown, Ms. Fedak-Tarnopolsky emphasized that the execution of a search warrant to locate firearms raises real safety concerns for police officers and the public. It was argued that “MacDonald has the answers and we should just apply the MacDonald criteria to this circumstance”. Counsel also described the detention here as brief investigative detention respecting possession of a firearm or perhaps a form of exigent circumstances relating to safe execution of a search warrant.

[156] A call-out permitted safe extraction of a small population of persons – the occupants of a dwelling believed to contain a person in possession of firearms, in a controlled fashion supporting safe execution of the telewarrant. Acting as they did, the police acted in lawful execution of their duties and ensured that firearms were not used or secreted out of the dwelling.

[157] Crown counsel submitted that the legitimate concern of the police officers in undertaking a call-out extraction was that the dwelling’s occupants not arm themselves “and, at that point, their mission is essentially completed” leaving only a clearing of the residence to ensure the safety of searchers. In terms of a search of an extracted occupant, “the initial search is purely for officer safety purposes”. The applicant’s detention commenced when Const. Heffren took physical control of the applicant.

[158] Const. Heffren’s role was to ensure that no one leaving the dwelling posed a threat to the police. His assignment was not to identify the home’s occupants or to question them. He had to work quickly in “an evolving situation”. Directly and reasonably related to his objective was the initial restraint and search of the applicant. It cannot be said that this deprivation of liberty, based on the physicality of the applicant, was unlawful. There was no application by the officer of a “usual approach” to handcuffing without consideration of the specific circumstances he faced.

[159] It was argued that “a brief detention of sorts” was justified to ensure not only that those leaving the dwelling did not have the weapons which were the subject of the warrant, but was also required so “that the officer-in-charge essentially would investigate to ensure their identities ultimately”.

[160] It was conceded that, in quickly unfolding circumstances, once Const. Kerfoot also recognized at the point of the transfer of custody that the applicant was not Karmvir Athwal, there was no lawful justification for the flex cuffs not being removed – “there is no justification provided by Const. Heffren after he conducts the search”. Minimal impairment of liberty associated to the call-out, reasonably required a re-evaluation of the handcuffing restraint at this time. Collectively, Consts. Heffren and Kerfoot, only at this point in time, subjected the applicant to arbitrary detention – a momentary decision with “lasting repercussions” as the applicant continued to be unlawfully detained:

… the violation of Mr. Athwal’s rights occurred pursuant to s. 9 when the handcuffs, the flex cuffs, were on Mr. Athwal from the point that Const. Kerfoot took over custody to the end of the custody that being the flex cuffs removed.

[161] Ms. Fedak-Tarnopolsky submitted that the applicant’s in-cruiser detention was however “qualitatively different” as, in privacy, Const. Kerfoot provided a caution and the rights to counsel in circumstances where the officer recognized that “he did not want to detain this person for [an] investigative purpose”.

Governing Principles

[162] “The only detentions prohibited by section 9 of the Charter are “arbitrary” detentions: R. v. Squires, 2016 NLCA 54, at para. 14. The contours of “detention” for Charter purposes have been clearly described in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 24-44, and its progeny.

[163] “[T]he constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint”: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 19; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 3-4, 21.

[164] The police are permitted to detain someone briefly to allow them to make a quick assessment of the situation before it can be said that a person is detained within the meaning of s. 9 of the Charter: Suberu, at paras. 32-36; R. v. Johnson, 2013 ONCA 177, at para. 25.

[165] In Grant, at para. 44, the court provided a non-exhaustive list of factors that may be helpful in determining whether an individual was psychologically detained:

(1) 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 focused investigation.

(2) 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.

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

[166] Counsel in the present case agreed that calling the occupants out of the dwelling, for which a warrant existed to search for firearms, was an ancillary police power incidental to safe execution of the warrant. Despite their industry, counsel could not provide caselaw authority directly dealing with this factual matrix.

[167] Of course, police powers and police duties are not necessarily correlative: Mann, at para. 35. The factual circumstances here do not fit neatly into various recognized instances of common law powers of the police based upon reasonable necessity, for example, reactionary free-standing safety searches, investigative detention based upon reasonable suspicion of involvement in criminal activity, or exigent circumstances involving unanticipated urgency.

[168] “The common law regarding police powers of detention, developed building on R. v. Waterfield, [1963] 3 All E.R. 659 (C.A.), and Dedman v. The Queen, [1985] 2 S.C.R. 2, is consistent with Charter values because it requires the state to justify the interference with liberty based on criteria which focus on whether the interference with liberty is necessary given the extent of the risk and the liberty at stake, and no more intrusive to liberty than reasonably necessary to address the risk. The standard of justification must be commensurate with the fundamental rights at stake”: R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at para. 21. The Waterfield test has been applied in a variety of contexts: R. v. Godoy, [1999] 1 S.C.R. 311; Mann; R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at paras. 49-54; R. v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.). Watt J.A., in R. v. Peterkin, 2015 ONCA 8, at paras. 42-62, provided a helpful overview of the Waterfield test.

[169] As a general observation, it has been said that: “It is clear the police have the power, at common law, to conduct warrantless searches to ensure their own safety and the safety of others”: R. v. Ahmed-Kadir, 2015 BCCA 346, at para. 62.

[170] The police have the authority to detain a member of the public for investigative detention upon the formation of a reasonable suspicion that the individual is connected to an offence that has been or is being committed: Mann, at paras. 34, 45; R. v. Dunkley, 2016 ONCA 597, at para. 24.

[171] A safety search is generally “a reactionary measure”, often “driven by exigent circumstances”: R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 32; R. v. Fountain, 2015 ONCA 354, at para. 23. Accordingly, a “predetermination” by the police in planning a search that a safety search will be conducted may not justify a safety search on the basis of a reasonable apprehension of imminent harm on entry to the subject premises: R. v. Jupiter, 2016 ONCA 144, at para. 2.

[172] In the MacDonald case, in the context of free-standing “safety searches”, Lebel J. stated at para. 39:

39 With this clarification in mind, we must sensitively weigh the factors of the second stage of the Dedman-Mann test. The factors assist both in determining whether a police power exists and in defining the limits of that power:

1. Importance of the duty: No one can reasonably dispute that the duty to protect life and safety is of the utmost importance to the public good and that, in some circumstances, some interference with individual liberty is necessary to carry out that duty.

2. Necessity of the infringement for the performance of the duty: When the performance of a police duty requires an officer to interact with an individual who they have reasonable grounds to believe is armed and dangerous, an infringement on individual liberty may be necessary.

3. Extent of the infringement: The infringement on individual liberty will be justified only to the extent that it is necessary to search for weapons. Although the specific manner (be it a pat-down, the shining of a flashlight or, as in this case, the further opening of a door) in which a safety search is conducted will vary from case to case, such a search will be lawful only if all aspects of the search serve a protective function. In other words, the authority for the search runs out at the point at which the search for weapons is finished. The premise of the Collins test - a warrantless search is presumed to be unreasonable unless it can be justified - must be borne in mind in determining whether the interference with individual liberty involved in a safety search is reasonable.

[173] As a valid prerequisite to a valid search, the courts have recognized that “exigent circumstances” in the context of a concern for the safety of the public or the police may justify a search for the purpose of protecting the public or the police on a standard less than reasonable grounds such as reasonable suspicion: R. v. Kelsy, 2011 ONCA 605, at paras. 32, 34-35, 37, 52, 58 (see also R. v. Bruyere, 2012 ONCA 329, at paras. 13-14). Of course, the police cannot orchestrate exigent circumstances by creating the requisite urgency through a preplanned course of conduct: R. v. Phoummasak, 2016 ONCA 46, at paras. 14, 21. In addition, the police cannot rely on exigent circumstances in the context of a planned end-run around obtaining a s. 529.1 Feeney warrant to arrest: R. v. Paterson, 2015 BCCA 205, at para. 72 (appeal heard and reserved [2015] S.C.C.A. No. 360).

[174] The use of unannounced hard/dynamic entry “in exigent circumstances” departing from the ordinary, common law requirement of ‘knock and announce’ may be reasonable on the facts. It has been accepted that “[s]ection 8 of the Charter does not require the police to put their lives or safety on the line if there is even a low risk of weapons being present”: r. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at paras. 10, 18, 20.

[175] In Cornell, at paras. 20, 22, Cromwell J. held that, if challenged, the Crown must lay an evidentiary framework to support the conclusion that the police had “reasonable grounds to be concerned about the possibility of harm to themselves or occupants”. In Clayton, at paras. 40-48, the court observed that the police, having “reasonable grounds to believe that public safety was at risk”, were entitled to employ a vehicle-stopping strategy of detaining vehicle occupants in furtherance of the discovery of firearms, and were justified, having regard to legitimate public safety concerns, in performing pat-down searches of individuals removed from vehicles at the roadblock where the police had information providing reasonable grounds to believe that one or more persons detained at the roadblock may be armed.

[176] In R. v. Strachan, [1988] 2 S.C.R. 980, a case where the police executing a search warrant temporarily suspended the s. 10(b) Charter right of a detainee, the court stated at pp. 998-999:

The trial judge rejected the argument that Constable Bisceglia needed to get the situation "under control" before allowing any telephone calls and held that the violation of the right to counsel occurred as soon as the Constable refused to let the appellant telephone his lawyer. Esson J.A. disagreed with the trial judge on this point and held that Constable Bisceglia's concern to stabilize the situation was a proper one. Although it is not necessary to decide the point in this case, I would be inclined to agree with Esson J.A. The combination of an arrest in the accused's home, the presence of two unknown people, and the knowledge that two restricted weapons were in the apartment, was a potentially volatile situation. It is true the accused had the proper registration permits for the weapons, but, notwithstanding, the possibility of their use was a serious matter for a police officer to consider while taking a person into custody. In my opinion, Constable Bisceglia was justified in preventing any new factors from entering the situation until some of the unknowns had been clarified. Thus I would say that the violation of s. 10(b) did not occur when Constable Bisceglia initially prevented the appellant from telephoning his counsel. But once the accused had been arrested, the weapons located, and the other two people had left, the police were clearly in control and there was no reason why they should not have allowed the appellant to telephone a lawyer. I would hold that the denial of counsel began from that point.

[177] Assessment of reasonable necessity on the part of the police requires case-by-case analysis of the specific factual circumstances as opposed to the application of a blanket policy, or “simply rote application of a general police practice”, or “standard practice”: Cornell, at para. 2; R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, at para. 48; R. v. MacIsaac, [2001] O.J. No. 2966 (S.C.J.), at paras. 71, 74 per Juriansz J. (as he then was).

[178] Where, in executing a search warrant, the police have well-grounded concerns that the use of less intrusive methods would pose safety risks to the officers and occupants of the house, then exceptional execution measures may be reasonable – this includes objectively reasonable perceptions of the particular circumstances and reasonable inferences about the risks the search of a specific residence may pose: Cornell, at paras. 2, 5-6, 20-21, 27, 29-31.

[179] It is not only the act of initiating an unlawful detention but also the manner of detaining which may be found to constitute constitutionally arbitrary detention, as for example, where handcuffs are unreasonably employed by the police: Ahmed-Kadir, at para. 98 (“The s. 9 breach is significant because the handcuffs were an unnecessary additional restraint on … liberty”); R. v. Squires, 2016 NLCA 54, at paras. 36, 84, 105; R. v. Christie, 2013 NBCA 64, at paras. 4, 10, 13, 21; R. v. McGuffie, 2016 ONCA 365, at para. 33 (“The detention was made all the more obvious when Constable Greenwood handcuffed the appellant”).

[180] We have long had concerns in Ontario as to the manner in which the police treat persons at premises subject to being searched by warrant: Report of the Royal Commission on the Conduct of Police Forces at Fort Erie on the 11^th of May, 1974.

[181] While a pat-down or frisk search, in circumstances of a detention, is a relatively non-intrusive procedure lasting “only a few seconds” (Cloutier v. Langlois, [1990] 1 S.C.R. 158, at p. 185; Mann, at paras. 42, 56), it cannot be justified for officer safety “on the basis of a vague or non-existent concern for safety”: Mann, at para. 40.

Discussion

[182] While Inspector Delaney expected that there would be a written operational plan for a dwelling search involving TAC Unit and CIB officers, it is not clear on the motions record that this was so in the present case. Such a plan would ordinarily address the subject of persons in the dwelling to be searched.

[183] A fair inference on the evidence, such as it is, is that the plan was to execute (1) a call-out of the dwelling’s residents rather than (2) a conventional knock and announce appearance or (3) a dynamic entry breaching one or more doors of the dwelling unannounced.

[184] The second option carried obvious risks that Karmvir Athwal, believed to be in the residence, could arm himself and violently resist the police. The third option, entry in the dark, into a dwelling, believed to contain firearms and dogs, presented its own risks to safety of the police and the home’s occupants.

[185] While the option selected would result in dislocation of the dwelling’s occupants in the night, it also accommodated a variation of knock and announce, and was rationally designed to enhance the safety of all involved. Because, as said, the operation was planned, it tended not to have the characteristics of exigency, of a reactionary safety search, or the preconditions for an investigative detention. This said, the approach adopted by the police, the exercise of an ancillary power directly related to the safe execution of a search warrant, though impacting upon property and liberty, may be seen as authorized by law.

[186] In all of the circumstances, there was a reasonable necessity for the actions of the police. Leaving aside the court’s finding that no valid warrant authority existed, the officers believed themselves to be in the lawful execution of duties to carry out a court order to search. It was believed that Karmvir Athwal and his firearms were in the dwelling. This presented real concerns, reasonably held, for the safety of those executing the warrant.

[187] The call-out extraction was a reasonable option which had to be reasonably conducted. In my view, the call-out had to be limited to safely clearing the dwelling, while ensuring that no occupant exited in an armed capacity – it was not meant to be an opportunity to catalogue the identity of all those who were occupying the residence.

[188] The police treatment of the applicant’s father and sister, despite their dislocation, may have amounted to an encounter which did not rise to the level of a detention in constitutional terms. They were not searched or handcuffed and, it seems enjoyed a relatively unsupervised status at the site.

[189] The same could not be said for the treatment of the applicant. He was the subject of differential treatment. In a driveway with an armed vehicle, heavily armed TAC Unit officers, and armed CIB officers on the street, the applicant was handcuffed and pat-down searched without being told why. Const. Heffren was unable to articulate any objectively reasonable basis for the physical detention. It was a judgment call without any “specific” safety concerns. However, the applicant was a young male and given the “physicality of a younger person”, it seemed prudent to detain him. The constable’s approach smacked of the Unit’s usual routine of flex-cuffing persons in a dwelling where a warrant is to be executed.

[190] Assuming that the cuffing and search could be seen as within a reasonable range of justifiable use of police power associated to the duty to safely execute the warrant, by about 2:00 a.m., with the police in control of the exterior perimeter of the dwelling, the applicant not aggressive or armed, the flex cuffs intended as a “temporary measure only”, and Const. Heffren of the view that the applicant was not Karmvir Athwal, the question which arose for the police to consider was what lawful authority existed for them to continue to detain the applicant. There was none and the Crown so concedes.

[191] The applicant was physically detained and, objectively, any reasonable person in the applicant’s circumstances would consider themselves psychologically detained.

[192] Const. Kerfoot, at 2:01 a.m., was also of the view that the detainee was not Karmvir Athwal and that he presented no safety threat. At this point, neither Const. Heffren nor Const. Kerfoot took any steps to remove the physical restraints resulting in over 20 minutes more of unlawful detention. Const. Heffren did not inform Const. Kerfoot why the applicant was handcuffed and did not use his scissors to remove the cuffs. Const. Kerfoot who, in his testimony, accepted that he had “custody” of the applicant, did not request Heffren to remove the cuffs.

[193] The applicant has established that he was arbitrarily detained in violation of his s. 9 Charter right from approximately 2:00 to 2:25 a.m. when the flex cuffs were finally removed and he was permitted to rejoin his family.

The s. 10(a) Charter Right

Submissions

Applicant

[194] Mr. Henderson submitted that the applicant’s s. 10(a) Charter right to be informed of the reason(s) for his detention was breached in this case.

[195] It was argued that the applicant was not told immediately of the reason for his restraint of liberty and was at no point afforded a positive, clear and unambiguous communication by Consts. Heffren and Kerfoot as to why he was handcuffed.

[196] Although counsel advanced the proposition that Const. Heffren, who apparently asked the applicant whether anyone remained in the residence, could also have explained to the applicant, concurrently with the search and cuffing, that his detention was for the purpose of excluding him as a carrier/possessor of any firearm which might be the subject of the search warrant for the dwelling, this submission was not vigorously pressed.

[197] Counsel did submit, however, that by 2:01 a.m., with the transfer of custody to Const. Kerfoot, a very clear statement was legally required of the reason for the detention. Telling the applicant he was not “under arrest” did not give a reason for his detention. Informing the applicant why his detention was not ending, because only a TAC officer could uncuff him, did not speak to why detention through the flex cuffs was initiated and then not terminated when the TAC officer first transferred custody. In effect, all that Const. Kerfoot did was to explain why the “circumstances make your release difficult”.

[198] Given the important relationship of the s. 10(a) Charter right to a detainee’s legal status and understanding of his jeopardy, Mr. Henderson submitted that, in the context of an arbitrary detention in breach of s. 9 of the Charter, that violation necessarily impacts on the context of the s. 10(a) right:

… where there is any unlawful detention, can s. 10(a) ever be complied with to a constitutional standard to make clear the legal jeopardy of a person because where the detention is unlawful. Surely what the person should be advised of is that there is an unlawful detention.

Respondent

[199] Ms. Fedak-Tarnopolsky submitted that the execution of Const. Heffren’s lawful duty, of ensuring no occupant of the dwelling was armed, unfolded in exigent circumstances. The search for weapons was brief in a “dynamic situation”. A “brief suspension” of the s. 10(a) Charter right was justified in such circumstances until officer safety was established. To inform the detainee in an “exceedingly” brief period of a few seconds, “I’m searching you for safety reasons”, would not trigger the type of restraint of liberty for which the Charter right was meant to support the right to consult counsel required by s. 10(b) of the Charter.

[200] Crown counsel acknowledged in her submissions that the s. 10(a) right cannot be suspended beyond the time required to establish officer safety – “and just for clarity’s sake, beyond that, there was an obligation and a requirement following that, that police officers, if they’re going to further detain an individual after that point, that 10(a) and 10(b) is triggered”.

[201] The Crown did not however concede a breach of the s. 10(a) Charter right. Const. Kerfoot had to ask himself what lawful authority existed to detain the applicant. Const. Kerfoot taking custody of the applicant amounted to a shift to “a potential investigative detention” to determine that the detainee was not Karmvir Athwal which he “quickly” determined. He informed the applicant, “You are not being arrested for anything” and that the flex cuffs would be removed. Through this communication, Const. Kerfoot “essentially gave 10(a)”. With no reason to detain the applicant for safety reasons and no reasonable suspicion of involvement in a criminal offence, there was no more the officer could do to comply with the s. 10(a) right:

Const. Kerfoot was not authorized to make up a reason for detaining Mr. Athwal. He properly realized that by virtue of Mr. Athwal being restrained, that he would believe he was detained and because it was the actions of the police that had restrained him, that Const. Kerfoot owed him a duty, and the duty was to inform him of the reasons, or lack thereof, for his detention and Const. Kerfoot rightly told him, “You are not under arrest for anything”.

Governing Principles

[202] Section 10(a) of the Charter provides that everyone on arrest “or detention” has the right “… to be informed promptly of the reasons therefor”.

[203] The s. 10(a) Charter right obliges the police to provide a detainee the reason for the imposed detention – while this is to be done immediately upon detention in order to, among other reasons, facilitate the detainee’s exercise of the right to counsel, no precise or technical language is required provided an officer’s clear and simply notice conveys the substance of the reason(s) for the detention: Mann, at para. 21; R. v. Evans, [1991] 1 S.C.R. 869, at para. 35; R. v. Nguyen (2008), 2008 ONCA 49, 231 C.C.C. (3d) 541 (Ont. C.A.), at paras. 16-20.

[204] A delay of minutes from the commencement of detention to communication of the information mandated by s. 10(a) usually amounts to a breach of the constitutional right: R. v. Sheck, 2015 BCCA 471, at para. 33 (leave to appeal refused [2016] S.C.C.A. No. 50).

Discussion

[205] Both counsel rightly appreciated that the arbitrary detention of the applicant bleeds into the s. 10(a) and s. 10(b) Charter analyses.

[206] Because there was no lawful authority for the continued physical detention of the applicant, Const. Kerfoot had no justifying legal authority to relate to the applicant to explain his status. Informing the applicant that he was not under “arrest”, a negative characterization of sorts, did not provide the applicant a valid reason for his ongoing “custody” or “detention” which would inform him as to why the state had restricted his liberty. Similarly, telling the applicant that the cuffs would be removed at some point, not quantified in terms of duration to wait, did not comply with the letter or spirit of s. 10(a) of the Charter.

Right to Counsel

Submissions

Applicant

[207] On behalf of the applicant, Mr. Henderson submitted that the applicant’s s. 10(b) Charter right was breached at two points in time: (1) when he was not immediately afforded the right upon his detention after exiting the Mountainberry dwelling, and (2) when he was denied counsel of choice at PRPS 21 Division.

[208] While again not pressing for the case that Const. Heffren need have discharged the obligation of communicating the s. 10(b) right, counsel argued that, at the point of transfer of custody, Const. Kerfoot was obliged to immediately communicate the s. 10(b) right.

[209] The applicant was searched and cuffed by Const. Heffren before 2:01 a.m. and then escorted to Const. Kerfoot’s location where the detention continued until the s. 10(b) Charter right was given in the rear of the police vehicle at 2:04 a.m. – a period exceeding 5 minutes from the initiation of detention. Apart from the issue of delay, Const. Kerfoot did not hold off, electing instead to ask the applicant, outside the police vehicle, whether he would be prepared to speak to him – by then, “important decisions had already been made” bringing the applicant within the confines of the police vehicle for a statement to be taken. Const. Kerfoot was confused – he seemed to think that communication of the s. 10(b) Charter right only arose at the point of questioning in the cruiser.

[210] It was further submitted, apart from non-compliance with the immediacy requirement, that when Const. Kerfoot read out the s. 10(b) Charter right, the applicant’s decision, not to then ask for consultation with counsel, cannot reasonably be regarded as a valid and informed waiver considering: (1) the context of the ongoing s. 9 and s. 10(a) Charter violations, and (2) the inability of the police to immediately act on a request for counsel given the physical restraint of the applicant’s hands.

[211] Insofar as the videotaped statement, counsel submitted that while Const. Roberts, at 4:10 a.m., telephoned a phone number for the applicant’s requested counsel, Mr. Maharaj, the officer immediately thereafter breached the applicant’s right to consult counsel of choice. No effort was made to seek out additional contact information for the lawyer, for example by asking the applicant whether he knew of another source which might facilitate contact. No effort was made to ask the applicant if he had the name of another lawyer the police might contact on his behalf. Although Const. Roberts left a message with Mr. Maharaj’s office for a “call back”, and in circumstances where there was no urgency to conduct an interrogation, he did not hold off electing to immediately tell the applicant that in his experience there was no chance of a lawyer calling back at that time of the morning. It was submitted that this amounted to an undue influence and an improper instigation of a default shift from counsel of choice to Duty Counsel. In effect, the police selfishly placed their priority of wanting an interview of the arrestee ahead of his constitutional right to consult with counsel of choice.

[212] Following the brief consultation with Duty Counsel, the applicant was not asked whether that phonecall fully satisfied his request for an opportunity to consult counsel.

[213] It was further noted that Const. Rempel, contrary to his testimony that he was unaware when conducting the video interview that the applicant wanted to speak to a specific lawyer, must have been aware of this fact. He was in the police vehicle when the applicant told Const. Roberts that he wished to speak to Mr. Maharaj. As well, Const. Rempel was in the booking area at the time that Const. Roberts was engaged in efforts to contact the lawyer.

Respondent

[214] Ms. Fedak-Tarnopolsky submitted, as she did respecting communication of the s. 10(a) Charter right, that the limited and brief non-investigative function lawfully discharged by Const. Heffren did not require that officer to inform the applicant of his s. 10(b) Charter rights.

[215] Crown counsel acknowledged that, whatever Const. Kerfoot’s perception may have been respecting the applicant’s custody, objectively speaking the applicant was physically and psychologically detained, separated from family members and handcuffed.

[216] Counsel submitted that Const. Kerfoot was required to inform the detainee of s. 10(b) right at the point of the applicant’s agreement to have a conversation – the right arose “immediately following Const. Kerfoot identifying that Mr. Athwal was willing to provide a statement”. Const. Kerfoot respected the applicant’s constitutional right by informing him of the s. 10(b) right in the privacy of the police vehicle not embarrassingly visible to neighbours in his handcuffed state. The officer, faced with unusual circumstances, complied with his constitutional obligations.

[217] Crown counsel submitted that the applicant was not denied the opportunity to consult with counsel of choice. The police made reasonable efforts to contact Mr. Maharaj. Given the time of morning, it was not surprising that counsel could not be reached. In fairness, and without undue pressure, Const. Roberts confirmed for the applicant that he still had the option available of speaking with Duty Counsel if he wished to do so. There is no evidence that the applicant, in any way, felt compelled to speak to Duty Counsel as his only opportunity to consult counsel.

Governing Principles

[218] A detainee’s s. 10(b) Charter right is intimately concerned with his or her right against self-incrimination: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at paras. 24, 26, 29, 36; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 38.

[219] The s. 10(b) right, both its informational and implementational aspects, must be complied with “immediately” by the police: Suberu, at paras. 2, 37, 39, 41-42.

[220] In McGuffie, at para. 42, Doherty J.A. stated:

The rights created by s. 10(b) attach immediately upon detention, subject to legitimate concerns for officer or public safety: Suberu, at para. 42. On the facts of this case, the appellant should have been told by Constable Greenwood that he had a right to speak to his lawyer no later than immediately after Constable Greenwood had handcuffed the appellant and conducted the pat down search while standing on the street. The appellant should have been asked if he wanted to speak with counsel and, if he did, Constable Greenwood should have afforded him that opportunity without delay.

[221] In the Suberu case, at para. 41 the court held that:

A situation of vulnerability relative to the state is created at the outset of a detention.

[222] Once informed of his right to counsel, a detainee must be reasonably diligent in the exercise of his s. 10(b) Charter rights: R. v. Tremblay, [1987] 2 S.C.R. 435. Where an opportunity to consult counsel is requested, the police are under a duty to assist in the implementation of that contact as “the detainee is in the control of the police and he cannot exercise his right to counsel unless the police provide him with a reasonable opportunity to do so”: R. v. Manninen, [1987] 1 S.C.R. 1233, at para. 21. And the police are under then under a duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel: Manninen, at para. 23; R. v. Rowson, 2015 ABCA 354, at paras. 36-37 (affd 2016 SCC 40) (in non-breathalyzer context, a 6-min. wait for lawyer to call back might constitute a s. 10(b) breach).

[223] In obiter, in R. v. Ross, [1989] 1 S.C.R. 3, at paras. 4, 15, the court observed that after the arrestee received no answer in his 2:00 a.m. phonecall to counsel, in circumstances where there was no urgency, there “is no evidence that the police even asked whether he wanted to call another lawyer”. At para. 17, the court stated that once a detainee asserts his s. 10(b) Charter right, “the police cannot, in any way, compel the detainee or accused person to make a decision or to participate in a process which could ultimately have an adverse effect in the conduct of an eventual trial until that person has had a real opportunity to exercise that right”.

[224] In R. v. Vernon, 2016 ONCA 211, at para. 2, the court held that:

On the findings of the trial judge -- ratified by the summary conviction appeal judge -- the police officer failed to satisfy his obligations to afford Mr. Vernon (the detainee) not only a reasonable opportunity to contact counsel of his choice but also to facilitate that contact: see Traicheff, 2010 ONCA 851, at paras. 2-3.

[225] In R. v. Traicheff, 2010 ONCA 851, at paras. 2-3, the court stated:

2 In finding a breach of s. 10(b) of the Charter, the trial judge said at para. 27 of his reasons:

Appropriately the police should advise the detainee after waiting a reasonable period of time for his lawyer to return the call that no call has come in from his lawyer and ask him if he would like to consult another lawyer. Alternatively the police should ask the detainee whether he has another telephone number where his counsel of choice could be reached or give him a telephone directory to see if he could find his lawyer's name and another telephone number where he could be reached.

We agree with these observations. Indeed, they reflect the Supreme Court of Canada's decision in R. v. Willier, 2010 SCC 37 where at para. 41 McLachlin C.J.C. and Charron J. wrote that s. 10(b) requires the police to afford detainees not only a reasonable opportunity to contact counsel of their choice but as well to facilitate that contact.

3 Departing from the practice outlined by the trial judge is not a technicality. That said, in this case, we agree with the trial judge and the summary conviction appeal court judge that the breathalyzer readings were admissible under s. 24(2) of the Charter.

[226] Where a detainee, unsuccessful in reaching counsel of choice, opts however to speak to another lawyer including Legal Aid Duty Counsel, without any improper interference by the police in that decision, then there is no breach of the s. 10(b) Charter right: Willier, at paras. 39-44.

Discussion

[227] Leaving Const. Heffren out of the equation as having an obligation to inform the individual he had detained of his s. 10(b) Charter right, we turn to the role of Const. Kerfoot.

[228] The officer knew that Const. Heffren had handcuffed the applicant at the 73 Mountainberry Road driveway. He knew that Const. Heffren, shortly afterward, escorted the applicant three or four property lengths down the road to where he and Const. Gales were positioned.

[229] This was the point in time, if the “immediately” requirement was to be constitutionally honoured, when the constable was obliged to inform the detainee of his s. 10(b) Charter right. He did not, though he recognized he had “custody” of a person handcuffed behind his back by the TAC Unit unlike the manner in which the other family members had been treated. While it may not be entirely clear why Const. Kerfoot failed to “immediately” give the s. 10(b) right at the point that Const. Heffren returned to his other duties, these aspects of the evidence may provide some insight:

(1) he had no idea why the applicant was handcuffed

(2) he did not consider that the applicant was under “arrest”

(3) he believed that communication of the s. 10(b) Charter right should be given at the point when he was going to take a statement from the applicant.

[230] Const. Kerfoot delayed, until 2:04 a.m., compliance with his obligation to provide the informational component of the s. 10(b) right. In this interval, the constable apparently secured the applicant’s agreement to give a statement by saying something to the applicant for which the officer has no note or verbatim recall. This approach, as submitted by the applicant, breached the constitutional rule articulated in Suberu over 5 years prior to the applicant’s detention.

[231] Further, it is difficult to consider the in-car offer to have the applicant consult counsel “now”, immediately, when the applicant was handcuffed to the rear in a closed vehicle with no “special tool” available to remove those flex cuffs.

[232] On balance, the applicant has established violation of his s. 10(b) Charter right at the Mountainberry Road scene.

[233] Turning to the videotaped statement, Const. Roberts could have done more to facilitate the applicant’s access to counsel of choice, or potentially to another private counsel. That said, I agree with Ms. Fedak-Tarnopolsky that the officer’s conduct in informing the applicant, very soon after leaving a call-back message for Mr. Maharaj, that his experience suggested it was highly unlikely that there would be a return call at that time of the morning, coupled with a repeated offer of Duty Counsel consultation, would not coercively or unfairly lead the applicant, or someone in his position, to reasonably believe that he no longer had the option of waiting for a call-back from Mr. Maharaj.

[234] There was no indication from the applicant, immediately following his consultation with Duty Counsel, that he was dissatisfied with the opportunity for legal advice he had opted for without undue pressure. There was also no complaint during the video interview.

Admission/Exclusion of Evidence

Submissions

Applicant

[235] On behalf of the applicant, Mr. Henderson sought exclusion of the statements made at the Mountainberry scene and at 21 Division as well as the seized firearm and other evidence seized from the yellow-walled bedroom within the dwelling.

[236] It was submitted that the Charter-infringing conduct by the police, and the TWC, fell toward the serious end of the continuum of departure from minimum constitutional standards. There were multiple breaches of the applicant’s Charter rights.

[237] In terms of the applicant’s s. 8 right to be secure against unreasonable search and seizure, the PRPS did not have a valid telewarrant to search the Mountainberry dwelling.

[238] There were no reasonable grounds for the issuance of a warrant to search and the police entry onto the property after 2:00 a.m. was not authorized by a proper telewarrant based upon a valid ITO under oath/attestation. While Mr. Henderson conceded that the police acted upon what they honestly believed to be valid warrant authority to search for firearms and ammunition, their misapprehension, and that of the justice of the peace in issuing the warrant, nevertheless reflects a significant divergence from constitutional expectations.

[239] The arbitrary detention of the applicant, for a time period approaching half an hour, was submitted to be a very serious infringement. There was no good faith here. A person’s liberty can only be restrained by the state for investigative detention where reasonable suspicion exists of his involvement in criminal activity or reasonable grounds exist supporting an arrest. Neither obtained in the present case. The applicant, posing no safety risk, was arbitrarily detained without cause when neither Const. Heffren nor Const. Kerfoot concerned themselves with his release from physical restraint when his custody was transferred.

[240] The s. 9 Charter breach inevitably led to a breach of s. 10(a) of the Charter. Then, the applicant was not given his s. 10(b) Charter right immediately, with Const. Kerfoot electing instead to first elicit the detainee’s agreement to have a conversation with him before communicating a right to counsel which the applicant could not immediately exercise given his handcuffed state.

[241] It was submitted that the section 8 Charter breaches were causally linked to the seizure of physical items from the dwelling and the Charter breaches were temporally related thereto and causally related to the statement made in the cruiser. It was further argued that in light of these violations, and the denial of the applicant’s right to consult counsel of his choice at PRPS 21 Division, the videotaped statement taken soon thereafter was itself “obtained by” unconstitutional behaviour.

[242] In all the circumstances, it was submitted, the first Grant factor favours exclusion of the evidence.

[243] Turning to the impact of the Charter-infringing conduct upon the applicant’s Charter-protected interests, it was submitted that the effect was far from trivial. A dwelling was the subject of an intrusion of privacy by a search with an invalid warrant. The arbitrary detention of the applicant was not a brief restraint. For a time period of 20 to 30 minutes, the applicant was separated from family members, handcuffed behind his back, and never informed as to why he was cuffed. The gravity of the arbitrary detention was aggravated by s. 10(a) and 10(b) Charter breaches. This factor favours exclusion of the statement and seized physical evidence.

[244] Mr. Henderson, while accepting that exclusion of the evidence would seriously impact upon the Crown’s ability to prosecute its case, noted the conscriptive nature of statement evidence.

[245] It was submitted that, in the final balancing of all the circumstances, the evidence ought to be excluded.

Respondent

[246] On behalf of the Crown, Ms. Fedak-Tarnopolsky emphasized, in respect of s 8 of the Charter, that the PRPS sought judicial authorization to search the Mountainberry dwelling. The police acted in good faith and followed direction from a justice of the peace in their effort to change the authorized time for execution of the telewarrant. The police only searched for the items set out in the original telewarrant as issued by Justice of the Peace Frederiksen. Counsel also made this submission: “given that the error in procedure is properly … a technical issue and that the full warrant where read together provides a basis … shows that is a technical error…”

[247] Crown counsel described the conceded breach of s. 9 of the Charter as “a technical breach”. It was not the product of any deliberate effort on the part of the police to unlawfully detain the applicant. Indeed, Const. Kerfoot undertook steps to alleviate the circumstances of the detention by cautioning the applicant and communicating the s. 10(b) Charter right, and affording the detainee the privacy of restraint in a police vehicle.

[248] In addressing the impact of any Charter-infringing conduct upon the applicant, such as may be found by the court, Crown counsel acknowledged the seriousness of an unreasonable search of a dwelling. In respect of the applicant’s detention, counsel stressed the significant amelioration of the detention circumstances through Const. Kerfoot giving the applicant his s. 10(a) and 10(b) Charter rights while the applicant was “being unfortunately detained”. Crown counsel submitted that there was no causal relationship between the applicant’s detention and the statements subsequently made at the scene of the search and subsequently at PRPS 21 Division.

[249] In terms of the impact of exclusion of the statement and physical evidence, Ms. Fedak-Tarnopolsky submitted that, given the strong public interest in the adjudication of firearms-related crimes on their merits, the reliable nature of the seized evidence, and the essential nature of the statement and seized evidence to the capacity to prosecute the case with any reasonable prospect of conviction, the third Grant factor favours admission. Counsel submitted that without the evidence, prosecution would be “difficult” – “so this would not be fatal, but very close to it”.

[250] In the final balance, it was submitted that the evidence ought not to be excluded.

Governing Principles

[251] Because I summarized the governing principles of our s. 24(2) Charter jurisprudence only 10 days ago in Persaud, at paras. 192-217, they need not be repeated here except for these additional observations.

[252] “[T]hat the officer’s subjective belief that the appellant’s rights were not affected does not make the violation less serious, unless his belief was reasonable”: R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59.

[253] In the McGuffie decision, in a passage at para. 63, specifically approved of in R. v. Stevens, 2016 QCCA 1707, at paras. 89-90, Doherty J.A. observed that:

In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see e.g. Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see e.g. R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 81-89; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-112. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see e.g. Grant, at para. 140.

[254] In terms of the third prong of the Grant analysis dealing with the impact of exclusion of the evidence on the truth-seeking objective of a criminal trial, while undoubtedly “society has a strong interest in an adjudication on the merits of … serious offences involving a loaded handgun” (R. v. Bashir, 2012 ONCA 793, at para. 7; R. v. Campbell, 2012 ONCA 394, at para. 18; R. v. L.B. (2007), 2007 ONCA 596, 227 C.C.C. (3d) 70 (Ont. C.A.), at paras. 79-82), this form of evidence is not to be given special significance overwhelming the “all the circumstances” analysis as observed at para. 53 of the Dunkley decision:

Equally problematic is the trial judge's statement, at para. 39, that "evidence in relation to the possession of a firearm not authorized by law should not be excluded except in the most serious breach of an accused's Charter rights." This statement is contrary to R. v. Fountain, 2015 ONCA 354, 324 C.C.C. (3d) 425, where this court made clear that there is not a different test for admission where the impugned evidence is a firearm.

See also Ahmed-Kadir, at paras. 103-111; Dhillon, at paras. 64-68.

[255] In assessing whether particular evidence was “obtained by” a constitutional violation, the court in R. v. Coderre, 2016 ONCA 276, at para. 14, stated:

In order to engage s. 24(2), a defendant needs to show that the impugned evidence was obtained "in a manner that infringed" a Charter-protected right. That requirement will be satisfied where, on a review of the entire course of events, a court is satisfied that the breach and the obtaining of the evidence was part of the same transaction or course of conduct. Courts will take a generous approach when evaluating this threshold issue. The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal, or a combination of the three. The connection must be more than tenuous: R. v. Plaha (2004), 188 C.C.C. (3d) 289 (Ont. C.A.), at para. 45.

See also R. v. Pino, 2016 ONCA 389, at paras. 50-65, 72, 74.

[256] In R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at paras. 19-21, 24, 26, the court stated:

19 In determining whether a statement should be excluded under s. 24(2) of the Charter, the court must be satisfied (i) that the evidence was obtained in a manner that infringed or denied any of the rights or freedoms guaranteed by the Charter; and (ii) that the admission of the evidence in the proceedings would bring the administration of justice into disrepute: R. v. Strachan, [1988] 2 S.C.R. 980.

20 The decisive question on this appeal is whether the appellant's third statement was tainted by the Charter breaches that marred the appellant's earlier statements relating to the same charges.

21 In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will be tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct: Strachan, at p. 1005. The required connection between the breach and the subsequent statement may be "temporal, contextual, causal or a combination of the three": R. v. Plaha (2004), 189 O.A.C. 376, at para. 45. A connection that is merely "remote" or "tenuous" will not suffice: R. v. Goldhart, [1996] 2 S.C.R. 463, at para. 40; Plaha, at para. 45.

24 Justice Sopinka [in