COURT FILE NO.: CR-16-70000301-0000
DATE: 20180522
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY
– and –
HAMDI ZAKARIE
Accused
Maeve Mungovan, for the Attorney General
Ayderus Alawi & Mark Reynolds, for the defence
HEARD: December 18 - 22, 2017 and March 12 - 16, 2018
B.A. ALLEN J.
REASONS FOR DECISION
(Blended Voir Dire ss. 8, 9, s.10 and s. 24(2) of the Charter of Rights)
BACKGROUND
The Proceeding
[1] The parties elected a judge-alone trial. This proceeding blends the trial with applications on the admissibility of statements to the police by Mr. Zakarie and the exclusion, due to alleged violations under sections 8, 9, 10 and 24(2) of the Charter of Rights, of a firearm, drugs and money seized from Mr. Zakarie’s person.
The Charges
[2] Hamdi Zakarie is charged with seven firearms offences: possession of a prohibited weapon (count 1), possession of a loaded firearm (count 2), carry firearm in careless manner (count 3), carry concealed weapon (count 4); possession of firearm with defaced serial number (count 5); carry ammunition in careless manner (count 6); and possession of a firearm for purpose dangerous to the public (count 7). Mr. Zakarie is also charged with four drug-related offences: possession of proceeds of crime ($860.00) (count 8); possession of cocaine (count 9); possession of cocaine for the purpose of trafficking (count 10); and possession of marijuana (count 11).
Brief Overview of Facts
[3] On January 21, 2015, at about 3:00 p.m. Mr. Zakarie was stopped by members of the Toronto Police Service (“the TPS”), 55 Division, in a stairwell at 10 Boultbee Ave. in Toronto.
[4] Officers earlier attended a briefing conducted by the Major Crimes Unit (“the MCU”) officers, DC McDonald and DC Emond, about problems in the Blake-Boultbee Toronto Community Housing (“TCHC”) complex where 10 Boultbee Ave. is located. Also in attendance were four officers from the Community Response Unit (“the CRU”), DC Pablo, PC Nuygen, DC Russo and PC Masterakis.
[5] There had been complaints from the management at 10 Boultbee Ave. about people hanging around the building dealing and using drugs, carrying firearms and hiding contraband in the underground garage and stairwells. At the time, the police at 55 Division were operating a project called Project Daycare set up to address gang and drug and gun-related activities in the Blake-Boultbee complex. The TPS has a formal agreement with TCHC to act as agents for the TCHC to enforce the Trespass to Property Act, R.S.O. 1990, c. T.21 (“the TPA”).
[6] At the January 21st briefing it was decided that the six officers would attend the building. Officers McDonald and Emond went to the property management office to review CCTV video footage of persons in the parking garage that the management saw as suspicious. There are two stairwells in the building. The plan was for two officers, Officers Pablo and Nuygen, to do a walk-through on the east stairwell and for Officers Russo and Masterakis to do a walk-through on the west stairwell.
[7] The arrangement was that the officers investigating the stairwells were to start on the top floor and work their way down both stairwells to determine whether criminal activity was taking place. At each floor the officers from each stairwell would open the door to the hallway and signal across the hall as to whether things were in order. When each set of officers reached the 3rd floor landings on the respective stairwells Officer Pablo on the east stairwell signalled for the officers from the west stairwell to come and assist.
[8] When Officers Pablo and Nuygen reached the landing on the 3rd floor, they encountered a male, later known to be Mr. Zakarie.
[9] It is the chronology of events leading up to and following Mr. Zakarie’s detention and arrest that are in question in deciding the Charter issues and the admissibility of the firearm, drugs and cash.
THE LAW ON CHARTER RIGHTS
[10] Mr. Zakarie seeks under s. 24(2) of the Charter to have his statements, the drugs, firearm and ammunition and cash excluded on the basis they were obtained in breach of his Charter rights under s. 8 (search and seizure), s. 9 (arbitrary detention), and s. 10(a) (prompt reasons for detention) and s. 10(b) (right to counsel).
Arbitrary Detention
The [Trespass to Property Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-t21/latest/rso-1990-c-t21.html)
[11] The TPA states expressly that there is no requirement for a judicial warrant to detain and arrest a trespasser. The statute allows persons other than police officers to engage in such detentions and arrests. Section 9(1) of the TPA provides that the right to arrest arises when the occupier has “reasonable and probable grounds” to believe the person arrested is a trespasser.
[12] Further, “a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises” as a trespasser. The arrested person is then handed over to the police. In the case before the court, the TCHC, the owner of the property, through an agreement, delegated its authority to the TPS to enforce the terms of the TPA.
[13] Trespass under the TPA is a provincial offence which under s. 2 a trespasser is subject to a fine of up to $2,000.00. The other remedies available to an occupier or owner of the property or their agent are to direct persons to leave a property under s. 2(1)(b) and to give notice that further activity or entry onto the property is prohibited either absolutely under s. 3, or within limits, under s. 4.
[14] As noted above, during the briefing at the Division the officers were briefed on the drugs and guns problems in the community, that is, offences under the Criminal Code and Controlled Drugs and Substances Act 1996 S.C. c-19. The officers’ memo notes about the briefing contain no mention of attending 10 Boultbee Ave. to enforce the TPA.
[15] The defence raised a question about the police not mentioning TPA enforcement in their memo notes and the legitimacy of their evidence that they relied on their authority under the TPA when they stopped Mr. Zakarie.
[16] I however do not regard the failure to mention their responsibilities under the TPA alone to be of concern in viewing the officers’ conduct when they first encountered Mr. Zakarie in the stairwell. The reason I say this is because the police at 55 Division operate under a standing agreement with TCHC to address trespassing problems they encounter in their routine work in that community. I take it that it would be a basic, sometimes tacit, understanding by officers when planning to investigate activities at Blake-Boultbee that they would be charged with enforcing the TPA if required.
[17] My conclusion on this issue however is not a comment on the reasonableness of the police’s overall conduct in relation to their obligations under the Charter. Under the TPA a person the police encounter on a property who is established not to reside there and is not an invitee or guest of a resident and who lacks other colour of right can simply be asked to leave the property. An arrest under the TPA does not entitle a search of the trespasser or seizure of items in the person’s possession. The most extreme remedy imposed by the TPA is limited to a $2,000.00 fine. The Criminal Code and the Charter provide protections for would-be trespassers if a police officer exceeds their authority in detaining or arresting for criminal activity in these circumstances.
The Charter
[18] Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned. Courts have addressed what constitutes an “arbitrary detention”. The Supreme Court of Canada in R. v. Grant held for a detention to be non-arbitrary it must be (a) authorized by law and (b) the law itself must be non-arbitrary. The authority to detain can arise under statute or at common law: [R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 56, (S.C.C.)].
[19] A police officer may briefly detain for investigative purposes where in the totality of the circumstances the officer has reasonable grounds to suspect a clear connection between the individual to be detained and a recently committed or unfolding criminal offence. Officers are not permitted to operate on the basis of a mere “hunch” or “suspicion” in detaining a person on an investigative detention: [R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 (S.C.C.)].
[20] Police authority on detention extends to the preservation of peace, the prevention of crime and the protection of life and property: [R. v. Dedman, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2 (S.C.C.)]. During a detention police officers are obligated to ensure officer safety and the safety of the public.
[21] A reasonable detention is based on a constellation of discernible facts that give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation: [R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.)]. The court must assess the reasonableness of the decision to detain in the context of all the circumstances particularly looking at: the extent to which the interference with individual liberty is necessary to the performance of the officer's duties; the liberty interfered with; and the nature and extent of that interference: [R. v. Mann, at paras. 24 and 34].
[22] Grant defines detention as that point when the state has taken explicit control over a person or when the control can be said to be exercised on a psychological level — that is to say, that point at which the person ultimately does not feel they have a choice as to whether to stay and speak to the police or leave. This is the point at which the person’s right to counsel and the opportunity to exercise that right are engaged: [R. v. Grant, at para. 30]. The Supreme Court in Therens also expounded on the implications of police restrictions on a person’s movements:
In addition to the case of deprivation of liberty by physical constraint, there is in my opinion a detention within s. 9 of the Charter when a police officer or other agent of the state assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel.
[R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, at para. 53, (S.C.C.)]
Reasonable Arrest and Reasons for Arrest
[23] Section 495(1) of the Criminal Code empowers a police officer to make a warrantless arrest where the officer believes on reasonable grounds a person has committed or is about to commit an offence. The officer’s belief must be an honestly held belief and must be reasonable.
[24] If an officer arrests someone who it is shown by evidence was not committing an offence or about to commit an offence then the arrest is not lawful. The police must consider all available evidence in deciding whether on reasonable and probable grounds an offence has been committed for which an arrest may be made.
[25] The Supreme Court in R. v. Storrey set down the tests for a reasonable arrest.
Reasonable grounds have both a subjective and an objective aspect. The arresting officers must subjectively have reasonable and probable grounds on which to base an arrest. Moreover, those grounds must be justifiable from an objective point of view such that a reasonable person placed in the position of the arresting officer can conclude that there were reasonable and probable grounds for the arrest.
[R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250 - 51, (S.C.C.)].
[26] Section 10(a) of the Charter entitles a person under arrest “the right on arrest or detention ... to be informed promptly of the reasons therefor”. The general expectation is that the arresting officer upon making the arrest will inform the person of the reason for the arrest. Protection under s.10(a) has not been satisfied if the accused does not understand the basis for their apprehension, detention or arrest and the extent of their jeopardy: [R v Latimer, 1997 CanLII 405 (SCC), [1997] 1 SCR 217, at para 31, (S.C.C)].
Reasonable Search
[27] A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable: [R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at para. 24, (S.C.C.)]. Absent a warrant a police search is presumed to be unreasonable. When a search is warrantless the Crown has the burden of showing that the search was on a balance of probabilities reasonable: [R. v. Collins, at para. 22].
[28] Searches incident to an arrest are an established exception to the general rule that warrantless searches are prima facie unreasonable: [R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 84, (S.C.C.)]. A search incident to an arrest may be conducted: to guarantee the safety of the police and the public; to prevent the escape of a suspect; to obtain evidence against a suspect; and to prevent the destruction of evidence: [Cloutier c. Langlois (1990), 1990 CanLII 122 (SCC), 53 C.C.C. (3d) 257 (S.C.C.) and R. v. Belnavis (1997), 1997 CanLII 320 (SCC), 118 C.C.C. (3d) 405 (S.C.C.)]. It follows that an arrest itself must be lawful for the police to have the authority to conduct a search incident to the arrest.
[29] It has been found that the strong smell of raw marijuana can be sufficient to conclude that the accused was in possession of marijuana and is arrestable under s.495(1)(b) of the Criminal Code: [R v. Harding, 2010 ABCA 180, 482 AR 262, at para 29, (Alta. C.A.)]. I mention this case because, as will be shown, the smell of marijuana is an issue in the case before me.
[30] In R. v. Harding, a police officer approached a vehicle and smelled a strong smell of “raw” marijuana. The officer arrested the accused on the basis of the smell of raw marijuana. A search uncovered a very large quantity of marijuana, two hockey bags that contained approximately 56 pounds of raw marijuana. The court found the smell of raw marijuana provided reasonable objective grounds to arrest the accused and search the vehicle.
Statements to the Police and Right to Counsel
[31] At common law, where the Crown seeks to admit a statement by an accused to a person in authority, the Crown must prove beyond a reasonable doubt that the statement was made voluntarily. It must be shown that the statement was not influenced by threats, promises, physical violence or oppression.
[32] A related concern is whether the statement was obtained in violation of the accused’s right to be cautioned about his right to silence and about his right to seek the advice of a lawyer before any questions are asked and answered and before any statements are made by the accused. The Supreme Court of Canada in Grant addressed the impact unlawfully obtained statements have on the rights protected under s. 7 and s 10(b) of the Charter:
The right violated by unlawfully obtained statements is often the right to counsel under s. 10(b). The failure to advise of the right to counsel undermines the detainee’s right to make a meaningful and informed choice whether to speak, the related right to silence, and, most fundamentally, the protection against testimonial self-incrimination. These rights protect the individual’s interest in liberty and autonomy. Violation of these fundamental rights tends to militate in favour of excluding the statement.
[R. v. Grant, at para. 95]
[33] Section 10(b) of the Charter provides, “[e]veryone has the right on arrest or detention … to retain and instruct counsel without delay and to be informed of that right”. The rights extended to a person under s. 10(b) arise because they have been arrested or detained for a particular reason and they are entitled to know the reason.
[34] This right is divided into an informational component and an implementation component. The officer: (a) must provide the detainee with a reasonable opportunity to exercise the right to retain counsel without delay except in urgent or dangerous circumstances; and (b) except in urgent or dangerous circumstances refrain from attempting to elicit evidence from the detainee until they have had a reasonable opportunity to retain and instruct counsel: [R. v. Bartle 1994 CanLII 64 (SCC), (1994), 92 C.C.C. (3d) 289 (S.C.C.) at 301, S.C.C.)].
[35] For the right to be properly exercised the accused must fully understand the jeopardy they are in and appreciate the consequences of the decision to speak to counsel. An accused must be informed of the offence for which they were charged as part of the informational component: [R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138 (S.C.C.)]. The informational duty requires the officer to inform the detainee of his right to retain and instruct counsel without delay: [R. v. Brydges, 1990 CanLII 123 (SCC), [1990] 1 SCR 190 (S.C.C.)]
[36] Those components impose a duty on the detaining or arresting officer to inform the accused that they have the right to counsel and to ensure that they have the opportunity to exercise the right.
THE EVIDENCE
The Detention, Arrest and Search
Evidence of Officers Pablo and Nuygen
[37] Officers Pablo and Nuygen arrived at the east stairway at about 3:00 p.m. They saw a black male, later found to be Mr. Zakarie, on the stairway below them. Mr. Zakarie was age 21 at the time and diminutive in stature, at about 5′ 7″ tall, weighing 140 lbs. Officer Nuygen at the time was a recent recruit to the police department. Officer Pablo as a more senior officer acted as Officer Nuygen’s coach offering guidance on the day of this investigation. This was Officer Nuygen’s first walk-through. He said he just followed Officer Pablo’s lead.
[38] Before the officers encountered Mr. Zakarie both officers heard a conversation coming from the stairwell. Officer Pablo was next to the rail and testified he could see a black male at the foot of the stairs on the 1st floor. Mr. Zakarie was wearing a black jacket with red stripes and appeared to be standing in the doorway of the exit at the foot of the stairs and appeared to be talking to someone outside the door who was out of Officer Pablo’s sight.
[39] Officer Pablo testified he could not hear much of the conversation. But said he could barely hear the words “how much” from the conversation. Officer Nuygen testified he could not make out any words in that conversation.
[40] Mr. Zakarie began mounting the stairs by himself. Officers Pablo and Nuygen came down the stairs from the fourth floor landing and met Mr. Zakarie on the 3rd floor landing. The officers never actually saw the other person involved in the conversation. Officer Pablo opened the door to the 3rd floor hallway and waved across to the west stairwell for Officers Russo and Masterakis to come and assist.
[41] At this point Officer Pablo stopped Mr. Zakarie and asked, “Do you live here?” Officer Pablo conceded that at this point he had detained Mr. Zakarie. Officer Pablo testified the male responded, “No, I live at 80 Blake” and further stated he has a key fob to the building and is on his way to his grandfather’s apartment at unit 507.
[42] Further, Officer Pablo and other officers observed that Mr. Zakarie was shivering which they interpreted as a sign of nervousness. However, Officer Pablo did note in his memo book that the temperature was -7° C and that the male was only wearing a black warm-up jacket over a hoodie and a red shirt.
[43] The officers’ evidence was in accord that Mr. Zakarie was co-operative and respectful during the entirety of their encounter with him.
[44] Both Officers Pablo and Nuygen stated that Mr. Zakarie also uttered words to the effect that he had smoked marijuana. That utterance, the officers testified, did not come as a result of a question by them. It came from Mr. Zakarie spontaneously. Both officers made note of that utterance in their memo books.
[45] The Crown seeks to rely on those utterances and other utterances, which the defence denies Mr. Zakarie made. The defence seeks their exclusion under the Charter as being in violation of Mr. Zakarie’s right to silence. Later in the decision, I will address the issue of the admissibility of Mr. Zakarie’s utterances.
[46] Officer Pablo testified he had previous experience with investigating drug dealing in the stairwells of that building. He and Officer Nuygen both testified they smelled marijuana from below when they were on the 4th floor. The smell of marijuana according to Officer Pablo grew stronger as the male got closer. Officer Nuygen testified he could smell marijuana “on Mr. Zakarie” when they were standing together on the 3rd floor landing.
[47] Officer Pablo emphasized in testimony that what he smelled was “fresh” not “stale” or “burning” marijuana. He further stated that the smell was “much too strong for someone who just smoked marijuana.” On cross-examination, however, Officer Pablo acknowledged that all he wrote in his memo book notes is that he smelled “weed”. He did not particularize that it was fresh, stale or burning.
[48] Officer Pablo testified the marijuana smell combined with the utterance of the words, “How much?” and the crimes the police were there to investigate made him suspicious there was drug activity taking place in the stairway. Officers Pablo and Nuygen testified that adding to their suspicion was the fact Mr. Zakarie was shivering and that he tried to brush by them to go upstairs.
[49] Officer Pablo insisted that the smell of marijuana together with Mr. Zakarie’s admission to having smoked marijuana convinced him Mr. Zakarie was in possession of fresh marijuana. Officer Nuygen stated he did not have sufficient experience to make the distinction as to what form of marijuana he smelled.
[50] Officer Pablo indicated he had the enforcement of the TPA on his mind when he asked Mr. Zakarie for identification. Mr. Zakarie produced a driver’s licence containing the name Hamdi Abdullaziz Zakarie and the address 343 Burroughs Hall, Scarborough, contrary to what he had previously told Officer Pablo.
[51] While Officer Pablo conceded that at this point Mr. Zakarie was detained, he did not read his rights to counsel and caution. Officer Pablo further conceded that at this point Mr. Zakarie was under investigative detention. He testified, “I wasn’t going to let him leave.”
[52] Officer Pablo’s evidence was that it was about 3:10 p.m., ten minutes after Mr. Zakarie’s utterance that he had smoked marijuana, that Officer Pablo placed Mr. Zakarie under arrest and cuffed him. Officers Pablo and Nuygen testified Mr. Zakarie was arrested for possession of marijuana. Before his arrest Mr. Zakarie had not been searched. Mr. Zakarie had not been found in possession of marijuana or any other contraband before his arrest.
[53] After the arrest Officer Pablo asked Officer Nuygen to search Mr. Zakarie as Officer Russo stood by keeping a look-out. At this time two other officers from 55 Division, Officers Harpell and Desmarches, arrived on the scene. Officer Nuygen began first to search Mr. Zakarie’s “beltline” then his outer and inner pockets. In one pocket he found a ping pong ball sized white rock-like substance wrapped in clear plastic. It was found to be crack cocaine.
[54] Officer Russo, confirmed by Officer Nuygen, stated that at this point Mr. Zakarie said, “Officers, I have something else”. As is noted below, other officers heard this utterance since by about 3:10 p.m., Officer Pablo had already summoned Officers Russo and Masterakis to the 3rd floor landing on the east stairwell.
[55] As the evidence below of Officer Russo will show, after Mr. Zakarie’s utterance about having something else, Officer Russo searched Mr. Zakarie and found a firearm. After the firearm was seized Officer Masterakis held Mr. Zakarie while Officer Nuygen continued the search. In one pocket he found a small amount of marijuana wrapped in plastic, a small amount of marijuana leaves in a Ziploc baggie. In another pocket he found small grey packets of a white powdered substance found to be powdered cocaine and found what was thought to be methamphetamine in a plastic baggie. It was later determined that the substance thought to be methamphetamine was not. In a back pocket there were two wads of Canadian cash.
[56] Officers Russo and Nuygen both testified that at about 3:15 p.m. they heard a commotion, people yelling from a floor somewhere above them. Officers Pablo, Nuygen and Russo remained with Mr. Zakarie on the 3rd floor landing. The other five officers, Officers Masterakis, Emond, McDonald, Harpell, and Desmarches went upstairs to investigate the noise.
Evidence of the Other Officers
[57] When Officers Russo and Masterkakis arrived Officers Pablo and Nuygen were on the 3rd floor landing with Mr. Zakarie. Officer Pablo informed them Mr. Zakarie was being investigated for drugs.
[58] Officer Russo testified that as soon as he entered the stairwell he smelled “freshly burnt or smoked” marijuana. He emphasized that he could detect the difference between the smell of “freshly smoked marijuana”, “stale smoked marijuana” and “fresh vegetative marijuana” and he was certain he smelled freshly burnt marijuana. He was adamant about the smell although he did not make a note of a marijuana smell in his memo book.
[59] Officers Russo and Masterakis were told by the other officers that there had been another person in the stairwell area. Officer Russo and Officer Masterakis immediately went downstairs to investigate the other person. In the end, they found no one else in the stairwell.
[60] Officers Russo and Masterakis returned to the 3rd floor landing to assist with Mr. Zakarie. Officer Russo indicated that when they returned to the 3rd floor landing, Mr. Zakarie was either handcuffed or in the process of being handcuffed and searched by Officer Nuygen. Officer Russo was standing on the 2nd or 3rd step down from the 3rd floor landing and the other officers and Mr. Zakarie were on the landing.
[61] Like Officers Pablo and Nuygen, Officers Russo and Masterakis testified that Mr. Zakarie uttered something along the lines of, “I have something else. It’s not mine.”
[62] After Mr. Zakarie made the utterance, at about 3:10 p.m., Officer Russo decided to search Mr. Zakarie. He took a few steps up closer to Mr. Zakarie and lifted the bottom of his top. He observed the black handle grip of a firearm. A firearm was tucked “into the front waist band of his pants”. Officer Russo testified that at this point Mr. Zakarie uttered the words, “It’s not mine.” The firearm was a .38 calibre handgun with five bullets loaded in its chamber.
[63] Officer Russo called dispatch to request that Officer Emond come to prove the firearm safe. Officers Emond and McDonald, who had been viewing CCTV recordings in the building manager’s office, arrived at the 3rd floor stairwell at about 3:15 p.m. Mr. Zakarie was handcuffed and being searched when they arrived. Officer Emond rendered the firearm safe. Officer Emond testified he was advised of the drugs and other items found on Mr. Zakarie.
[64] Officer Emond also testified about the smell of marijuana in the stairwell. Unlike Officer Pablo, who was adamant from his eight years’ experience that it was “fresh vegetative” marijuana, Officer Emond was equally adamant from his ten years’ experience that it was the smell of “burnt or smoked marijuana”. As noted earlier, Officer Pablo emphasized that the smell was “much too strong” to be the odour of “smoked marijuana”. Again, Officer Pablo only noted in his memo book the smell of “weed” not distinguishing the type of smell and Officer Emond made no note about the smell of marijuana.
[65] Similar to Officer Emond, Officer Russo was adamant that as soon as he entered the 3rd floor stairwell where Mr. Zakarie was standing, he smelled “freshly burnt marijuana” as opposed to “vegetative” or “stale smoked marijuana”. Both of the officers testified the smell was strong.
[66] Regarding Officers Masterakis and McDonald, defence counsel pointed out to them that nowhere in their notes did they mention smelling marijuana. They were aware of a drug issue since Officer Masterakis held Mr. Zakarie during a search and Officer McDonald was on scene and was told of the drugs seized from Mr. Zakarie. The defence challenged Officer Masterakis that he was close to Mr. Zakarie holding him and reasonably would have smelled marijuana. It was also put to the officers and they agreed that they knew Mr. Zakarie was arrested for drugs and they would have mentioned in their notes that they smelled marijuana if in fact they did.
[67] The officers who went upstairs to investigate the yelling had in their minds that the commotion could be coming from apartment 507 since that is where Mr. Zakarie said he was going. They went upstairs to ensure the safety of the residents and the police, particularly in view of the seizure of drugs and a loaded firearm. There was no noise when the officers arrived at apartment 507. The officers found nothing of any relevance to their investigation of Mr. Zakarie. They found that Mr. Zakarie’s uncle did not live there.
Statement to Police and Right to Counsel
[68] The Crown seeks to rely on the statements Mr. Zakarie made when he encountered the police in the stairwell on the 3rd floor landing. The Crown does not seek admission of any statements made afterwards at 55 Division. The police gave evidence that:
• Mr. Zakarie stated that he does not live at 10 Boultbee but lives at 80 Blake;
• He stated that his grandfather lives in apartment 507 and that is where he was heading;
• He stated he has a key fob to get into 10 Boultbee;
• He stated that he smoked marijuana;
• He stated, after the drugs were found in his possession, “Officers, I found something else. It isn’t mine.”
[69] Mr. Zakarie denies making those statements. However, even if I accept that Mr. Zakarie made those statements, there are Charter issues that must be considered in relation to the circumstances surrounding the making of the statements.
[70] As the evidence shows, Mr. Zakarie was not given his rights to counsel and caution before he made the statements to the police. He was not given his rights to counsel and caution before he was arrested by Officer Pablo for possession of marijuana. Mr. Zakarie was actually arrested not because he was found in possession of marijuana. He was arrested because some, not all of the officers, smelled some form of marijuana and because of his utterance about smoking marijuana.
[71] Mr. Zakarie was not given his rights and a caution after his jeopardy increased upon Officer Nuygen searching him and seizing the ball of crack cocaine. Neither was Mr. Zakarie given his rights or a caution when his jeopardy was greatly increased with Officer Russo’s seizure of the loaded firearm. And further, he did not receive rights to counsel and a caution when his jeopardy was yet again increased when Officer Nuygen went on to seize the marijuana, the powdered cocaine, the methamphetamine and the cash.
[72] Officer Nuygen acknowledged that it was only after he completed the search and the five officers went upstairs at about 3:15 p.m. to investigate the noise that Officer Nuygen read Mr. Zakarie his rights to counsel.
[73] Officer Pablo testified he heard Officer Nuygen give Mr. Zakarie his rights to counsel after the five officers went upstairs. Officer Nuygen testified he gave Mr. Zakarie his rights to counsel and the caution from his memo book. He also testified he asked Mr. Zakarie if he understood his rights but he did not recall Mr. Zakarie’s response. Officer Pablo did not recall or make a note of whether Mr. Zakarie said he understood his rights.
[74] Officers McDonald and Masterakis testified they did not recall hearing Mr. Zakarie being given his rights to counsel while they were on the 3rd floor landing. But they were among the officers who went to investigate upstairs when the rights were given. Officer Russo was one of the officers who remained with Mr. Zakarie and Officer Pablo while Officer Nuygen continued his search. Officer Russo had himself searched Mr. Zakarie and his evidence was that he did not give the rights to counsel and did not hear Mr. Zakarie being given his rights to counsel. He made no note of the rights to counsel.
[75] Officers Pablo and Nuygen escorted Mr. Zakarie out of the building. Mr. Zakarie was placed in the back seat of a squad car at about 3:38 p.m.
[76] Officer Nuygen read Mr. Zakarie his rights to counsel and caution in the squad car at about 3:42 p.m. A videotape of Officer Nuygen giving the rights and caution in the squad car was played in court. After reading from his memo book, Officer Nuygen took the time to explain the rights and caution in simpler terms. Mr. Zakarie indicated that he understood his rights. Officer Nuygen testified that he believed Mr. Zakarie understood his rights.
[77] But there is a further problem. On the recording Officer Nuygen advised Mr. Zakarie that he was under arrest for possession of crack and a firearm. Officer Nuygen was asked to explain the inconsistency between that evidence and his previous evidence that Officer Pablo arrested Mr. Zakarie for possession of marijuana.
[78] Officer Nuygen responded that the situation had changed because the police had subsequently seized a large amount of crack cocaine and a firearm. He went on to say he just mentioned the most serious offences when he read Mr. Zakarie his rights. He said those were the two items that stuck in his mind and in any event Officer Pablo had already told Mr. Zakarie he was under arrest for possession of marijuana.
[79] On the recording, Mr. Zakarie stated that he wanted to speak to a lawyer and that he had the name of his lawyer. Officer Nuygen responded that the police would try to call that lawyer and that he would give the lawyer’s name to the booking sergeant.
[80] At the police station, Officer Pablo asked Mr. Zakarie the name of his lawyer. Mr. Zakarie told him two names, Hussain Aly and Ayeris, the first name of Mr. Alawi, his defence counsel at trial. Officer Pablo indicated he passed that information to an officer with the MCU but he did not recall who that was. Officer Pablo did not follow up with the MCU as to whether Mr. Zakarie was able to call his lawyer.
[81] Officer Smith was on duty at the station when Mr. Zakarie was brought in. Officer Smith indicated he left a phone message with Mr. Hussain at 8:07 p.m. and with Mr. Alawi at 8:10 p.m. In his messages, Officer Smith left the contact number for the station for counsel to return the call.
[82] Mr. Alawi had evidence to give about his communication with the police station and his client. He requested another counsel be retained to cross-examine Officer Smith and to call Mr. Alawi as a witness and to represent Mr. Zakarie to the completion of the trial. I found that an appropriate way to proceed in the circumstances.
[83] Mr. Alawi indicated that at about 8:55 p.m. he called the station and had a brief conversation with Officer Smith who told Mr. Alawi Mr. Zakarie had been arrested and wished to speak to him. Officer Smith told Mr. Alawi he would have to make arrangements to facilitate the call with Mr. Zakarie so he would have to call Mr. Alawi back when this was done. In the meantime, Mr. Zakarie made some statements to the police at the station on which as I noted earlier the Crown does not seek to rely.
[84] Mr. Alawi testified he called the station on two more occasions, at 9:16 p.m. and 9:20 p.m. He indicated he did not have the opportunity to speak to Mr. Zakarie until just before 10 p.m.
[85] The Crown concedes the police violated Mr. Alawi’s s. 10(b) right to retain and instruct without unreasonable delay.
ANALYSIS
Key Points in the Evidence
[86] The particulars of the officers’ conduct and their account of Mr. Zakarie’s behaviour are open for review in determining the admissibility of the loaded firearm, drugs and currency. Such analyses are very much fact-driven based in the particular circumstances of the case.
[87] A nutshell of the critical evidence is as follows.
• The police detained Mr. Zakarie on the stairwell landing moments after they encountered him.
• He was asked if he lived in the building and Mr. Zakarie made the statement that he is not a resident.
• Mr. Zakarie went on to make further statements about why he was in the building, to visit his uncle in apartment 507, and that he had a fob to access the building.
• Mr. Zakarie also made the clearly inculpatory statement that he had smoked marijuana.
• Some officers gave inconsistent evidence about the form of marijuana they smelled. Other officers did not smell marijuana.
• Mr. Zakarie was arrested for possession of marijuana before the police searched him.
• On the first search the police found and seized a sizable ball of crack cocaine.
• Mr Zakarie then made another statement that the police interpreted as inculpatory, that he had something else that was not his.
• He was searched again by another officer and the loaded firearm was found.
• The search was resumed and cocaine, marijuana, what was thought to be methamphetamine and currency were found.
• One of the two officers present when the third officer gave the rights to counsel heard the rights to counsel and caution.
• The first rights to counsel and caution were given not until after Mr. Zakarie made the statements to the police.
• The first rights to counsel and caution were given after the search was completed.
• On the video recording, Mr. Zakarie was given his rights to counsel and caution from the officer’s memo book while seated in the patrol car.
Arbitrary Detention
Under the [Trespass to Property Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-t21/latest/rso-1990-c-t21.html)
[88] The police testified they operated under the TPA when they initially detained Mr. Zakarie when they first encountered him. I accept that evidence.
[89] The TPA authorized the police in their own right, and as agents of the TCHC, to detain or arrest Mr. Zakarie if on reasonable and probable grounds they believed Mr. Zakarie was a trespasser. Through its relationship with TCHC and its experience in policing the community the police at 55 Division were aware of criminal activity and problems with trespassers in the stairwells and underground garages at Blake-Boultbee.
[90] I believe encountering Mr. Zakarie in the stairwell in the circumstances provided a reasonable basis for the police to inquire into whether he was entitled to be there. Officer Pablo agreed that Mr. Zakarie was detained from this point.
[91] From this perspective, I find the police were justified in determining whether Mr. Zakarie was a trespasser. That authority would of course permit the police to ask Mr. Zakarie his name and address and ask for identification. This would naturally lead to Mr. Zakarie answering those questions and showing the police his identification.
[92] Mr. Zakarie showed identification with an address different from the address he gave the police verbally. I find this gave the police reasonable and probable grounds to conclude that Mr. Zakarie did not reside in the building, that he was a trespasser. The police were justified in detaining Mr. Zakarie for that reason.
[93] The question then becomes what remedy or remedies were available to the police under the TPA after determining Mr. Zakarie was a trespasser.
[94] If there was no evidence Mr. Zakarie was engaged in or about to engage in criminal activity, under the TPA the police could have simply asked Mr. Zakarie to leave the premises and/or given him a warning that further loitering or presence in the stairwell or on the premises or entry onto the property is prohibited. Instead of doing this, within minutes of encountering him, the police arrested him and searched him without a warrant.
[95] This moved the encounter into the criminal realm and to the inquiry as to whether the police satisfied their legal and constitutional obligations under the Charter.
Under the [Charter of Rights](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)
[96] The detention extended beyond the police investigating Mr. Zakarie for trespassing. This put the burden on the Crown to prove the detention was not arbitrary under the Charter.
[97] The police were authorized to detain Mr. Zakarie for a brief period on an investigative detention. To properly execute that power the police must establish in the totality of the circumstances that they had reasonable grounds to suspect a clear connection between Mr. Zakarie and a recently committed or unfolding offence.
[98] Officer Pablo was not permitted to operate on the basis of a mere hunch or suspicion in detaining Mr. Zakarie on an investigative detention. On the day in question, the police were investigating drug and gun-related criminal activity at 10 Boultbee. To meet its burden to show the detention was not arbitrary, the Crown must prove a constellation of discernible facts that gave Officer Pablo, the arresting officer, reasonable cause to suspect that Mr. Zakarie was criminally implicated in the activity under investigation.
[99] Officer Pablo detailed what he regarded as the constellation of facts that justified him continuing to detain Mr. Zakarie.
[100] Officer Pablo placed the discernible facts in the general context of the criminal activities the police were there to investigate, the drug and gun activity on the premises and in the stairwells. The facts he presented he related to his having vaguely heard the words, “How much?”
• He could smell the odour of fresh, vegetative marijuana in the stairwell that got stronger as Mr. Zakarie mounted the stairs toward the 3rd floor landing.
• Mr. Zakarie made the utterance that he smoke marijuana.
• When Mr. Zakarie reached the 3rd floor landing he was shivering indicating to him he was nervous about something.
• Mr. Zakarie tried to pass by him and Officer Nuygen on the stairwell.
[101] The strongest factor for Officer Pablo seemed to be the smell of marijuana. Officer Pablo went to great lengths to detail his observations of the type of odour he encountered − fresh marijuana, too strong to be just smoked or stale marijuana. The fact that Officer Pablo was not specific in his notes as to the type of odour he smelled, but over two years later at trial he has this specific recall, gives a dubious quality to his evidence.
[102] Another major problem is that the evidence of the other officers, and common sense, raise questions about the credibility and plausibility of Officer Pablo’s evidence about the marijuana smell.
[103] Officer Russo had a different observation about which he was as adamant as Officer Pablo − that the marijuana odour was not fresh marijuana but rather smoked marijuana. However, Officer Russo never noted anything about the smell of marijuana in his memo book. Like Officer Pablo, to establish the reliability of his evidence, Officer Russo cited his years of experience with marijuana in his police work.
[104] But Officer Russo was not the only officer who concluded the odour was of smoked or burnt marijuana. Officer Emond was resolute that he detected freshly smoked marijuana. Neither did Officer Emond note the smell of marijuana in his memo book.
[105] Then there is Officer Masterakis’ evidence. Officer Masterakis was close to Mr. Zakarie holding him while Officer Nuygen searched him. Like Officer McDonald, Officer Masterakis did not note a smell of marijuana in his memo book and admitted he would have noted the odour if he had smelled it. This is directly contrary to Officer Nuygen’s evidence that while he was also close to Mr. Zakarie conducting the search he smelled the odour of marijuana “on Mr. Zakarie”.
[106] Looked at overall, the serious discrepancies among the officers’ evidence about the nature of the marijuana smell or the lack of a smell, I find are impossible for the Crown to overcome. This gives me great doubt there was any smell of marijuana at all. On this evidence, I cannot conclude on a balance of probabilities that Officer Pablo smelled marijuana before he detained and arrested Mr. Zakarie.
[107] There is also a common sense view that adds to my doubt. The police seized only a small quantity of marijuana, 4.1 grams. It was enclosed in plastic wrap inside plastic baggies. Officer Pablo testified he could smell the odour of fresh, not smoked, marijuana, before Mr. Zakarie reached the 3rd floor landing. The odour got stronger as Mr. Zakarie climbed the stairs and was too strong to be smoked marijuana.
[108] I find this implausible. It does not comport with common sense that Officer Pablo could smell that small amount of fresh marijuana from a distance, or even close-up, through its plastic packaging and Mr. Zakarie’s clothing.
[109] This set of facts is clearly distinguishable from the circumstances in R. v. Hardy, cited above. In that case the smell of “raw”, I assume this is the same as “fresh”, marijuana inside a vehicle the police had stopped was found to provide sufficient objective grounds to arrest the accused. It is not hard to imagine that the odour of 56 pounds of raw marijuana inside two duffle bags could be smelled inside a vehicle from outside the vehicle.
[110] I find the other less compelling factors the police sought to rely on go no distance in assisting with reasonable and probable grounds.
[111] Officer Pablo testified he heard the words, “How much?” Officer Nuygen who was standing with Officer Pablo did not hear those words. Be that as it may, those words have no meaning outside the context in which they were spoken. Obviously, the words could have been said in reference to an infinite number of circumstances. Officer Pablo did not know who spoke those words or under what circumstances they were spoken.
[112] The officers testified that, unprovoked and unsolicited, Mr. Zakarie told the police that he smoked marijuana. Even on its own that evidence just does not have the ring of truth. Why would Mr. Zakarie out of nowhere spontaneously volunteer to the police that he committed a criminal act? Moreover, it does not stand to reason that Mr. Zakarie would voluntarily draw the police’s attention to himself when he knew he was carrying a loaded firearm and drugs. The evidence of that alleged utterance taken together with the other evidence I find untruthful and implausible leads me to conclude Mr. Zakarie in all likelihood did not make that statement.
[113] The fact that Mr. Zakarie tried to pass them on the stairwell was suspicious to the police, adding to their reasonable and probable grounds. Equally plausible is that Mr. Zakarie was just engaging in the innocent and normal act of trying to pass someone standing on stairs above them. Without more, this conduct cannot reasonably signify criminality. The evidence is that not only trespassers and those involved in criminal activity but residents of the building and others also use those stairs to reach destinations in the building.
[114] The fact that Mr. Zakarie was shivering in the stairwell also falls short of reasonable and probable grounds. The police speculated that Mr. Zakarie was shivering from nervousness implying it was because he was involved in criminal activity. There is an equally plausible explanation for this. Mr. Zakarie was not dressed for a temperature of – 7 ° C. He could have been shivering from the cold.
Conclusion on Arbitrary Detention
[115] For the reasons cited, and on the totality of the circumstances, I find the police’s detention of Mr. Zakarie was arbitrary contrary to s. 9 of the Charter.
[116] It is sufficient to find the seized items inadmissible based on my finding that the detention was arbitrary. But in the event I am incorrect about this and for completeness, I will go on to consider Mr. Zakarie’s other Charter claims.
Unreasonable Arrest
[117] The law allows a police officer to make a warrantless arrest where the officer believes on reasonable grounds a person has committed an offence, is committing an offence or is about to commit an offence. Critical to this power is that the officer’s belief must be an honestly held belief. It must be a reasonable belief. Otherwise the arrest is unlawful.
[118] The police’s assessment of their reasonable and probable grounds to arrest must have both a subjective and an objective basis. The officer must have objective grounds in which to situate their subjective beliefs. This means that a reasonable person placed in the position of the arresting officer would be capable of concluding there were reasonable grounds for the arrest.
[119] Mr. Zakarie was originally told by the police he was under arrest for possession of marijuana. As pointed out earlier, Mr. Zakarie had not been searched before he was arrested. So the police had not found him in possession of marijuana before he was arrested. That fact alone tends to shed some doubt on whether there was an objective basis for the police to arrest Mr. Zakarie.
[120] However, the police’s evidence is that they believed Mr. Zakarie was involved in illegal drug activity. They founded this belief mainly on the objective factors of Mr. Zakarie’s admission to smoking marijuana and the smell of marijuana in the stairwell.
[121] I have already determined that I do not believe the officers smelled marijuana in the stairwell. I do not accept that Mr. Zakarie told the police he had smoked marijuana. I have rejected the less compelling reasons for the detention. Beyond their speculation and unfounded subjective beliefs there were no reasonable grounds for the police to arrest Mr. Zakarie.
[122] I find the arrest was unlawful and the evidence inadmissible on that ground.
Unreasonable Search and Seizure
[123] A warrantless search is presumed to be unreasonable. With such a search the Crown has the burden of showing that the search was reasonable. A search incident to an arrest may be conducted in restricted circumstances. The safety of the officers, the possible escape of the suspect and the possible destruction of evidence can justify a search.
[124] Even if I assume that certain facts I have discounted are true and that the arrest was lawful, I still would not find the searches to have been reasonable.
[125] For one thing, I have some difficulty with the evidence that Mr. Zakarie is alleged to have said “Officers, I have something else.”
[126] The evidence is that during Officer Nuygen’s initial search he started by first searching Mr. Zakarie’s “beltline”. He then searched his left outer pocket and recovered the large ball of crack cocaine. I question why Officer Nuygen mysteriously failed to find the firearm when he searched Mr. Zakarie’s “beltline”. A pat-down, a routine part of a search, or a visible bulge at the beltline during his search, should reasonably have revealed the firearm to Officer Nuygen.
[127] It does not make sense that Mr. Zakarie would have to tell the police he had something else when Officer Nuygen had just searched the area where the firearm was located. For some reason I may never understand, Officer Russo undertook to search the same area Officer Nuygen had searched and he found the firearm. The peculiar and unexplained nature of that evidence and the officers’ credibility problems in other areas of their evidence dissuade me from unequivocally accepting that Mr. Zakarie uttered the words, “Officers, I have something else”.
[128] The police’s attempt to create an impression of an emergency, of exigent circumstances, fell short of being a persuasive excuse for the failures in their obligations.
[129] The police testified that the history of drug and gun-related activity in the stairwells of the building created a general aura of danger. Officer Pablo heard the words, “How much?” The fact another person had been in the stairwell who was not apprehended, the police say, heightened their concern. As well, the fact they smelled marijuana and that the suspect admitted to smoking marijuana confirmed criminality. Officer Pablo testified he arrested Mr. Zakarie because he did not want him to get away.
[130] The uncertainty around the commotion upstairs, according to the police, also added to the atmosphere of danger. However, Mr. Zakarie had been arrested, handcuffed and searched before the commotion was heard. At one point there were eight officers on the scene. Five officers went upstairs to attend to the commotion leaving three officers with Mr. Zakarie in the stairwell.
[131] The number of armed officers combined with the fact Mr. Zakarie was co-operative, diminutive in stature and handcuffed made the arrest for reasons of danger and fear of Mr. Zakarie’s escape unreasonable.
[132] But the reality, for reasons I have given, is that the arrest was unlawful. The law is clear that an arrest itself must be lawful for the police to have the authority to conduct a search incident to the arrest.
[133] There is no doubt that the contraband seized − a firearm, a large quantity of drugs and a large quantity of cash − portends serious criminal activity. But the police cannot violate a person’s rights and justify breaches by referencing after the fact of the search the dangerous nature of the items seized. In other words, the police are not entitled to arrest first and then determine whether the person arrested is connected to the offences under investigation: [R. v. Debot, 1989 CanLII 13 (SCC), [1989] CarswellOnt 111, at para. 68, (S.C.C.); R. v. MacIsaac, [2001] O.J. No. 2966 (S.C.J.) (QL); see also R. v. Whitaker, 2008 BCCA 174 (B.C.C.A.) and R. v. Chaif-Gust, 2011 BCCA 528 (B.C.C.A.)].
[134] I find the search of Mr. Zakarie and the seizure of the items to have been unreasonable and thus unlawful. I find the evidence is inadmissible for this reason.
Statements to the Police and Right to Counsel
[135] The police are required to provide a detainee a reasonable opportunity to exercise the right to retain counsel without delay except in urgent or dangerous circumstances. They must refrain from attempting to elicit evidence from the detainee until they have had a reasonable opportunity to retain and instruct counsel except in urgent or dangerous circumstances. This means the arresting officer has an obligation to inform the accused they have the right to counsel and to ensure that they have the opportunity to exercise the right. The detainee must know the jeopardy they are in and understand the implications of having and instructing counsel.
[136] Statements a person makes to the police without being given their rights to counsel and caution are obtained in violation of the person’s right to silence and their right to protection against self-incrimination. The law is clear that a violation of these fundamental rights tends to militate in favour of excluding the statement.
[137] Mr. Zakarie was not given his rights and caution at several stages of his encounter with the police, that is:
• when he was first detained for criminality;
• before he was said to have made utterances to the officers;
• when he was arrested for possession of marijuana;
• when his jeopardy increased upon Officer Nuygen searching him and seizing the ball of crack cocaine;
• when his jeopardy was greatly increased with Officer Russo’s seizure of the loaded firearm; and
• when his jeopardy was again increased when Officer Nuygen went on to seize the marijuana, the powdered cocaine, the methamphetamine and the currency.
[138] According to the evidence of Officers Pablo and Nuygen, Mr. Zakarie was not given his initial rights to counsel and caution until after he was arrested and the search was completed. Given my findings, I have some doubt whether he was even given his rights on that occasion.
[139] I say this because Officer Russo was also standing with Mr. Zakarie and the other two officers in the very confined space of the landing and he did not hear the rights being given. He had searched Mr. Zakarie himself and he did not inform him of his rights. Officer Russo was an officer of some eight years’ experience at the time. Rights to counsel is critical information. He made no note in his memo book and said he would have if he had heard rights being given. I considered Officer Russo’s evidence and other credibility problems with Officers Pablo’s and Nuygen’s evidence and I am not convinced Mr. Zakarie received his rights to counsel and caution on the stairway landing.
[140] The officers testified that giving the rights of counsel earlier was not a priority for them in the circumstances. As I noted above, they painted a picture of exigent circumstances. The danger of the situation for themselves and residents was on their minds. Things were fast-moving. The officers did not know whether the commotion upstairs was related to their investigation of Mr. Zakarie and did not know where the other person in the stairwell had gone. They had just found a firearm in Mr. Zakarie’s possession in circumstances where he was on his way to up to the 5th floor.
[141] As I concluded above I do not accept that the circumstances were not well under the officers’ control. There were in the first stages of the encounter four officers with Mr. Zakarie and then six and then eight, to deal with a co-operative and small-statured person. The five armed officers who went upstairs were clearly in a position to take command of the circumstance there and they did. The three armed officers with Mr. Zakarie were also capable of controlling the situation on the 3rd floor stairwell and they did.
[142] I find there was no reasonable excuse for Mr. Zakarie not being given his rights to counsel and caution as the law requires at every stage of their encounter with him in the stairwell including in connection with statements the police said he made.
[143] To augment the problem, when Officer Nuygen gave Mr. Zakarie his rights in the patrol car, he advised Mr. Zakarie he was under arrest for possession of crack cocaine and a firearm. He had already been told by Officer Pablo he was under arrest for possession of marijuana. This would certainly cause some confusion. Was he no longer under arrest for marijuana? As well, Officer Nuygen had seized powder cocaine, methamphetamine and cash. Was he not under arrest for those items either? Mr. Zakarie was clearly not aware of his jeopardy in relation to all the contraband seized.
[144] The police clearly did not satisfy the informational element of the right to counsel.
[145] Mr. Zakarie was arrested at 3:10 p.m. and was not able to speak to counsel until about 10 p.m. when he spoke to counsel by phone from the police station. The Crown conceded a violation.
[146] I find the police also failed to meet the implementation element of the rights to counsel.
[147] I find if Mr. Zakarie made the statements to the police they were obtained in violation of his rights and are not admissible in evidence.
CONCLUSION ON ADMISSIBILTY
[148] The case before me brings to mind an observation I made in a case I decided several years ago.
It would be difficult to find reasonable a warrantless search that followed upon statements unlawfully obtained from an accused not advised of his rights to counsel and that was conducted incident to an arbitrary and unlawful detention. It cannot be that trammelling other basic rights on the way to conducting a search can result in a reasonable search particularly in circumstances where there is no urgency or legitimate concern about officer safety.
[R. v. Beepath, [2011 ONSC 4104](https://www.canlii.org/en/on/onsc/doc/2011/2011onsc4104/2011onsc4104.html), 2011 CarswellOnt 6152, at para. [67](https://www.canlii.org/en/on/onsc/doc/2011/2011onsc4104/2011onsc4104.html), (Ont. S.C.J.)]
[149] The police uncovered evidence of the type that poses a serious danger to the community. The Supreme Court of Canada however has cautioned against retroactively justifying substandard police conduct by the results the conduct has produced. The fact that the search in the end produced dangerous contraband together suggesting a commercial drug operation, as serious as this is, cannot be used as an after-the-fact justification for a substandard investigation.
[150] I conclude therefore that the firearm, ammunition, crack cocaine, powder cocaine, marijuana and the currency should be excluded from evidence.
[151] At the close of the admissibility hearing the Crown proceeded to trial with the evidence of an expert on trafficking in cocaine. Given my decision on admissibility, I need not consider trial evidence.
THE SECTION 24(2) ANALYSIS
[152] Section 24(2) of the Charter allows the court to exclude evidence obtained in breach of Charter rights if the admission of the evidence would bring the administration of justice into disrepute. This requires a balancing of the effect that admitting the evidence would have on society’s confidence in the justice system.
[153] For consideration in this balancing exercise are three inquiries set out in R. v. Grant: (a) the seriousness of the Charter-infringing state conduct; (b) the impact of the breach on Charter-protected interests of the accused; and (c) society’s interest in the adjudication of the case on its merits.
[154] The seriousness of the breach falls along a spectrum. On one end of the spectrum are violations that are inadvertent or minor in nature, and on the other end are violations that demonstrate a reckless and deliberate disregard of Charter rights: [R. v. Grant, paras. 72 and 74].
Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence.
[R. v. Grant, para. 75]
[155] I find on the first inquiry, the police violations cumulatively fall on the more serious end of the spectrum. I do not find that each individual violation on its own should command the level of censure the plurality of the violations should attract.
[156] There is no evidence that when Mr. Zakarie was initially detained he was told why he was detained, whether for trespassing or for some other reason, although the police said they had their authority under the TPA on their minds. He was arrested without establishing they had reasonable grounds to arrest and before they searched him and found contraband.
[157] Mr. Zakarie was not given his rights to counsel and told he did not have to speak to the police before he made alleged statements to the police. He was not advised of his rights when he was arrested. Mr. Zakarie was not advised of his rights to counsel and given a caution as his jeopardy increased with the seizures of the drugs, firearm and money. When Mr. Zakarie was given his rights to counsel and caution in the police cruiser, he was misinformed and given confusing information about the grounds for his arrest. He could not have possibly appreciated his jeopardy.
[158] The Crown concedes a violation as a result of Mr. Zakarie not having the opportunity to speak to counsel for almost seven hours, from 3:10 p.m. when he was arrested until 10:00 p.m. when he spoke to Mr. Alawi from the station. This is not a minor infraction of the Charter.
[159] The arbitrary detention resulted in an unreasonable arrest and unlawful, warrantless searches and seizures of items from his person.
[160] I also consider the fact that, except for Officer Nuygen, the other officers involved in Mr. Zakarie’s arrest had many years of experience conducting such investigations. Officer Nuygen’s inexperience is not an excuse for his errors since Officer Pablo was with him as his coach and ought to have guided his conduct. The officers’ failures to honour their basic obligations in respect to a person’s fundamental rights, I find, is inexcusable substandard conduct the court cannot condone.
[161] Exacerbating the circumstances is the further fact that the officers at points in their testimonies gave untrustworthy, sometimes embellished and implausible evidence in an attempt to obscure the inadequacies of their investigation. The court must dissociate itself from that type of practice.
[162] Overall, I find the police conduct to be willful and flagrant. In combination these were not minor or technical errors.
[163] On the second inquiry, I find the officers’ conduct does not fall on the most severe end of the spectrum. The conduct however was not of negligible effect.
[164] There is no evidence the physical search in the stairwell was conducted recklessly or in an overly invasive or demeaning manner. But I cannot overlook the fact that the search of Mr. Zakarie’s body under layers of his clothing was conducted in an area that was not closed off to the building’s residents and other members of the public.
[165] When I combine that with the fact that Mr. Zakarie was not given information about his rights and the basis for the search, I find being searched takes on a somewhat more serious complexion. The police moved to search Mr. Zakarie’s person in a semi-public area without him being informed of exactly why. There were no exigent circumstances that explain why the police failed in their obligation to Mr. Zakarie.
[166] Further exacerbating the impact on Mr. Zakarie was the crowning violation of him languishing for nearly seven hours under arrest, not knowing exactly what charges he faced, before he had the opportunity to exercise his right to speak to his lawyer. This is inexcusable.
[167] The court must dissociate itself from police conduct that ignores the impact that violations of rights have on a person who is kept in the dark and vulnerable under the control of state power.
[168] The third inquiry requires the court to look at the seriousness of the offence.
[169] The Supreme Court of Canada in R. v. Harrison asks the court to balance the implications of excluding evidence of an offence against the effect on the administration of justice if the prosecution of a serious crime is not pursued because evidence that could provide conclusive proof is not admitted.
[170] The firearm, drugs and money seized would provide conclusive proof of Mr. Zakarie’s knowledge and possession. Evidence of that type cannot therefore be regarded as operating unfairly in the court’s search for the truth at trial: [R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 81 and 82, (S.C.C.)].
[171] There is no question that firearms and drugs are a serious threat to communities. Mr. Zakarie was unlawfully carrying a loaded firearm in a building where families, women and children live, socialize and play. It is chilling that Mr. Zakarie was carrying a loaded firearm on the way up the stairs to somewhere. I do not take that reality lightly.
[172] No doubt the outcome of this case would have been much different had the police not engaged in such an extensive succession of violations of Mr. Zakarie’s basic rights. This was not a complicated investigation or a difficult encounter with the accused. It would have cost the police only a little more time, patience and the exercise of a little more effort to have produced a different outcome.
[173] But for the extent and number of Charter violations this is the type of case that cries out for a trial on the merits. The seriousness of the offence must be considered but must not take on disproportionate significance: [R. v. Harrison, paras. 34 and 84]. I must balance public concern over the type of crime against the serious infringements of Mr. Zakarie’s basic rights.
[174] The court must engage in a fact-based balancing of the three lines of inquiry. It is not simply a quantitative evaluation of whether the majority of the factors favour exclusion. The balancing must consider the effect that admitting the evidence would have on the long-term repute of the administration of justice: [R. v. Harrison, at para. 36].
[175] The offences charged are without question serious and the seized evidence central to the Crown’s success at trial. The prosecution is denied the chance to try serious cases when highly probative evidence is excluded. I do not under estimate that consideration.
[176] I weighed the three inquiries. I conclude, given the extent of the Charter violations, that the long-term interest of the administration of justice would not be served by admitting the evidence in this case. The balance favours the exclusion of the firearm, ammunition, marijuana, crack cocaine, powder cocaine and currency seized by the police from Mr. Zakarie on January 21, 2015.
[177] I want to leave a final message. This decision should not be seen as condoning Mr. Zakarie’s audacity in carrying around a loaded firearm. Neither he nor anyone else should take from my decision that they can do this and get away with it. I have absolutely no sympathy for anyone who in flagrant disregard of the law and the danger to others leaves home concealing a loaded firearm under their clothing. The prospect of what Mr. Zakarie might have been planning to do with the firearm is truly frightening.
[178] I repeat there would have been a very different outcome for Mr. Zakarie if the police had properly executed their duties. My hope is that the fear Mr. Zakarie must have felt throughout this encounter with the criminal justice system has daunted his audacity and scared him into never being so foolish and reckless again.
DISPOSITION
[179] I order the crack cocaine, the marijuana, the firearm, the ammunition, the powder cocaine, and the currency excluded.
[180] I find Hamdi Zakarie not guilty on counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11 on the indictment and acquittals will be entered accordingly.
B.A. ALLEN J.
Released: May 22, 2018
COURT FILE NO.: CR-16-70000301-0000
DATE: 20180522
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY
– and –
HAMDI ZAKARIE
Accused
REASONS FOR DECISION
(Blended Voir Dire ss. 8, 9, s.10 and s. 24(2) of the Charter of Rights
B.A. ALLEN J.
Released: May 22, 2018