Court File and Parties
Court File No.: CR-16-90000610-0000 Date: 2018-10-25 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Inderdip Sahota, Accused
Counsel: Sabrina Montefiore, for the Crown Kim Schofield, for the Accused
Heard: September 10 - 18, 2018
Before: B.A. Allen J.
REASONS FOR DECISION
(Voir Dire, Breach of Charter of Rights s. 7, 8, 10(b) and Abuse of Process s. 24)
THE PROCEEDING
[1] Inderdip Sahota is charged with various drug and proceeds of crime offences stemming from trafficking heroin to an undercover officer in the summer of 2015. Mr. Sahota readily admits he was a drug dealer at the time. He admits he sold the drugs (“the trafficked drugs”) that are the subject matter of this trial to the undercover officer. The police also seized drugs (“the seized drugs”) from Mr. Sahota’s condo unit which are not evidence before the court.
[2] This is a defence application for a stay of proceedings, or alternatively, for exclusion of the drugs, proceeds of crime and cell phones the police obtained in relation to the undercover police drug buys.
[3] The Crown, as it is entitled to do, declined to consent to a re-election to proceed at trial by judge alone. The parties acknowledge that the seven days scheduled for trial are not sufficient to accommodate the defence application and a trial before a jury and agree the application will be heard during the seven days. The parties agree to be bound by my decision on the application going forward to trial.
[4] Mr. Sahota was originally represented by other counsel. At the time of the judicial pre-trial, previous counsel did not raise any Charter issues. It was during the weeks before the commencement of the trial that present defence counsel delivered a notice of application raising Charter violations under sections 7 and 24(1) and sections 7, 8, 10(a), 10(b), and s. 24(2). The original notice of application included consideration of both the seized drugs and trafficked drugs. Days before the start of trial, defence counsel delivered an amended notice of application deleting references to the seized drugs and seeking a stay and exclusion in relation to the trafficked drugs.
The Charges before the Court
[5] The police were involved in an investigation of Mr. Sahota from May to August 2015 for drug trafficking. He was first arrested on charges arising from drugs he trafficked on several occasions to an undercover police officer. He was also arrested on drugs seized pursuant to a search warrant executed on his condo unit. At the preliminary inquiry on September 26, 2016, the Crown withdrew the charges related to the drugs seized on the search warrant and proceeded to trial only on the drugs and proceeds of crime obtained from drug trafficking.
GROUNDS FOR THE APPLICATION
Overview of the Defence’s Position
[6] This is an unusual application for this reason. The defence is seeking exclusion of the drugs and proceeds obtained through the undercover buys. This is the only contraband before the court. Yet to support the stay of proceedings and exclusion of the trafficked drugs the defence directs the court’s attention to the conduct of the police in relation to the drugs seized pursuant to the search warrant on Mr. Sahota’s condo unit.
[7] It is a matter of common understanding that a possibility exists, when state conduct is at issue, for sections 7 and 8 of the Charter to be engaged and for state conduct to become the subject matter for a request for a stay of proceedings under s. 24(1) or common law or for exclusion proceedings under s. 24(2). Where the state conduct involves seizures of contraband it is more commonly the case that the evidence sought to be excluded is directly connected to the state conduct at issue. The contraband sought to be excluded by the defence was not obtained in connection to the alleged violations committed during the search.
[8] Section 24(1) provides that a person whose Charter rights have been violated may apply to “a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances”. Behind this protection is the concern that putting a person on trial in the face of rights violations would result in an “abuse of process” and violate the “principles of fundamental justice” under s. 7 of the Charter.
[9] Courts have developed a residual category of abuse of process that encompasses circumstances where the right to a fair trial is not implicated. The residual category covers situations where the state conduct is such that it risks impugning the integrity of the judicial process: R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 63 (S.C.C.) and R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at paras. 48 and 49 (S.C.C.).
[10] In its application for a stay the defence relies on the residual category under s. 7 and at common law. The defence points to the conduct of the police on the search which the defence argues was sufficiently egregious as to present one of the clearest of cases of abuse of process deserving of a stay of proceedings under s. 24(1).
[11] On the exclusion issue, the defence relies on case law which establishes that for exclusion under the Charter to be engaged the violation at issue must be sufficiently proximate in cause, timing and context to the evidence sought to be excluded. The defence points to the manner of search of the condo unit as being sufficiently proximate to the trafficking transactions and drugs obtained by the undercover officer that s. 24(2) is engaged to exclude the trafficked drugs and proceeds.
[12] The defence also seeks exclusion of the trafficked drugs, proceeds and the cell phones based on s.8 violations during the pat down at the scene and during the strip search at the station.
[13] Further, the defence seeks exclusion of the trafficked drugs, proceeds and cell phones because the police breached the accused’s right to counsel under s. 10(b) of the Charter when they attempted to elicit incriminating information from him before he was allowed to speak to a lawyer and because the police failed to facilitate the right to counsel for some six hours after his arrest.
Overview of the Crown’s Position
[14] The Crown takes positions in the alternative. The Crown’s primary position is that the defence’s stay application should be summarily dismissed on the basis that the defence did not meet the notice requirements for an application under s. 24(1) of the Charter. In the alternative, the Crown contends the defence has not adduced evidence sufficient to engage the extraordinary stay remedy or the exclusion of evidence.
[15] On the procedural question of notice, the Crown contends that the defence did not meet the notice requirement under the Courts of Justice Act. There is a statutory requirement that the party seeking a remedy under 24(1) of the Charter must give notice as soon as the desire for the remedy is known or at least 15 days before the application is heard. The Crown was not notified until days before the commencement of trial.
[16] The Crown takes the alternative position, if the court finds summary dismissal is not in order, that the defence has adduced no credible evidence to support the state conduct it posits in support of its stay and exclusion applications.
[17] The state conduct that underlies the alleged violations under sections 7 and 8 is that during the search the police found the drugs they seized not inside the condo unit as the police claim, but in lock boxes on the external stairway which they brought into the condo unit to be within the scope of the search warrant. The defence further alleges, despite police denials, that the police disrupted the contents of the condo unit before the search entry video was taken and left the unit in a state of disarray.
[18] From a substantive point of view on the stay issue, the Crown takes the position that the police conduct cited in support of abuse of process does not meet the standard of establishing the “clearest of cases” required to obtain a stay of proceedings.
[19] On the exclusion remedy, the Crown takes the position that the grounds upon which the defence bases its application are not applicable to the contraband before the court such that protection under s 24(2) of the Charter is not engaged. This is so, the Crown submits, because there is insufficient causal, temporal or contextual connection between the trafficked drugs and the alleged violations by the police at the condo unit.
[20] The Crown argues the defence failed to establish that the police searched the condo unit before the police entry was recorded and caused the dishevelled state of the condo unit shown on the entry video.
[21] That is, it is the Crown’s view that the defence has brought no evidence to establish the police violated Mr. Sahota’s s. 8 rights by the manner in which they searched the condo unit. The police, in the Crown’s further view, did not commit s. 8 violations by the manner in which they searched Mr. Sahota’s person at the scene or at the police station.
[22] The Crown however concedes a breach of Mr. Sahota’s right to counsel for delaying in implementing the right for several hours before allowing him to speak to counsel. The Crown’s position, however, is that the police met the informational step in that on three or four occasions he was informed of his right to counsel after his arrest. The breach in the Crown’s view does not rise to the level of bringing the administration of justice into disrepute if the drugs were admitted and as such should not be excluded under s. 24(2).
BACKGROUND EVIDENCE
Drug Deals and Arrest
[23] Toronto Police drug squad officers conducted the investigation, the drug deals, the arrests of Mr. Sahota and his girlfriend, Navdee Boparai, and the search of the premises. They were transported by 23 Division officers to the station where they were processed, strip searched and placed separately in interview rooms.
[24] Mr. Sahota testified and admitted to being a drug dealer. He admitted that he sold heroin to an undercover officer, Det. Rajan Bhogal, on four occasions, on May 27, May 29, June 1 and July 29, 2015. He offered to sell heroin to the officer on a fifth occasion on August 25, 2015. Det. Bhogal purchased a total of $1,320.00 worth of heroin from Mr. Sahota and Mr. Sahota offered to sell a further $2,800.00 dollars’ worth just before he was arrested on August 25, 2015.
[25] At the time of some of the trafficking transactions, Mr. Sahota lived with his parents at 31 Topbank Drive, Toronto. Sometime in the summer of 2015, he moved to the address at issue in this application, unit 1631, located in the condominium building at 700 Humberwood Dr., Toronto.
[26] Mr. Sahota was arrested on August 25th at 10:27 p.m. on a stairwell at the rear of the condo building while in the act of offering to sell heroin on that day. Det. Anstey arrested Mr. Sahota and told him he was under arrest for trafficking. Det. Greaves who assisted with the arrest testified he gave Mr. Sahota his rights to counsel first from his memo book and then explained the rights in simpler terms. The officer stated that he told Mr. Sahota he could speak to a lawyer at the police station. He seized three cell phones from him.
[27] The defence alleges Mr. Sahota’s pants together with his underwear were pulled back during the pat down search after his arrest. Det. Greaves did the pat down search. He testified he did not pull Mr. Sahota’s pants and underwear back. Nor did he see any other officer search Mr. Sahota.
Search Warrant and the Search of the Premises
[28] On August 24th the police applied for a search warrant for 700 Humberwood, unit 1631, 31 Topbank and two vehicles. The only search warrant on this application relates to 700 Humberwood, unit 1631. It is a one bedroom modestly-sized condo unit with a living room, kitchen, bedroom, bathroom and clothes closets. Det. Bhopal, who conducted the drug buys, was not involved with the search warrants or the search of the premises. Nor were Det. Greaves and Det. Gazey who were officers involved with the arrest for drug trafficking.
The Issue of Police Conduct during the Search
[29] Several officers were involved in executing the search warrant on unit 1631 at 700 Humberwood. The officers entered the unit at 10:47 p.m. on August 25th. The officers testified that as was their normal practice on search warrants, they “cleared” the premises for security risks before they started the actual search. This refers to looking around the rooms, under beds and in closets to confirm whether anyone or anything poses a danger to the police and occupants.
[30] The officers testified that it was not until after clearing the unit that the entry video was taken. The entry video shows living quarters in great disarray. There are clothes, garbage and other items strewn around and piled on floors and counters. It is the police’s evidence that the unit was in that state when they entered. They say they did not conduct a formal search until after the entry video was recorded. The entry video began at about 11:09 p.m., 15 minutes after entry.
[31] Mr. Sahota and his girlfriend, Ms. Boparai, testified that the police disrupted the contents of the condo unit. Ms. Boparai was present in the unit when the police entered. Mr. Sahota had not long before the search left the unit to conduct a drug deal. Their evidence was that the unit was tidy before the police came. Ms. Boparai did not reside at the condo but indicated she often visited and would clean and ensure the premises were spotless and orderly.
[32] Ms. Boparai testified that before the entry video was taken she directly witnessed police officers moving through the unit disturbing the contents and asking where the real drugs are. The defence questioned what the police were doing during the 15 minutes after entry before the entry video was recorded. The police responded that they had to wait for an officer to retrieve the search kit from a police car.
[33] Mr. Sahota’s evidence, confirmed by Ms. Boparai, is that he did not keep his drugs inside the condo unit. He was candid that when he purchased drugs from his supplier, he would bring them into the unit to package them. He would use plastic baggies small enough to fit inside a real estate lock box, the small boxes in which real estate agents store condo unit keys which they attach to stairway railings in stairwells outside condo units. Mr. Sahota testified he had about five lock boxes containing heroin and other drugs such as MDMA and “Molly” (“ecstasy”) attached to railings in the stairwells between the 15th and 16th and the 16th and 17th floors.
[34] Mr. Sahota testified the drugs they seized were not located in the condo unit as the police contend. Mr. Sahota testified he told no one but his brother about the drugs in the lock boxes and took great care that no one was in the stairwells when he accessed the lock boxes. His girlfriend testified she saw Mr. Sahota in the condo place the drugs in lock boxes but did not see them in the stairwells. It is the defence’s view that the police had to have seized the drugs from the lock boxes in the stairwell which was outside the scope of the warrant. Mr. Sahota did not explain how the police would have known the drugs were in lock boxes since he guarded that information.
[35] The police’s evidence is that Det. Anstey seized the drugs from a kitchen cupboard. None of the officers who testified saw Det. Anstey find and seize the drugs. He was not called as a witness to testify about this. Neither did Ms. Boparai observe Det. Anstey seize the drugs. No photos were taken of the drugs or the place where the drugs were seized from. Neither did Ms. Boparai or other officers see any lock boxes or any officer leave the unit to enter the stairwell; that is, except two officers who themselves say they entered the stairwell to break open a safe found in the bedroom.
[36] Mention of a safe was not contained in any officers’ notes. Det. Tracey testified he found a safe in the bedroom which he took out to the stairwell to break open. D.C. Fraser assisted with the safe. Nothing was found in the safe. No other officer saw a safe or Det. Tracey leave the unit with a safe. No photos were taken of the safe. The police explained that photos were not taken because nothing was found in the safe.
[37] The defence takes the position that the police fabricated the evidence about where they seized the drugs from. The defence sees as suspicious that the police did not photograph the drugs or where they say they seized them from in the kitchen. The defence’s further view is that the police fabricated the evidence about the safe to explain the officers’ presence on the stairwell, according to the defence, to cover for the fact they went out there and seized the drugs in the lock boxes.
[38] The police recorded an exit video at 12:12 a.m. and exited unit 1631 at 12:14 a.m.
Evidence Related to 23 Division
[39] Officers from 23 Division were tasked with transporting Mr. Sahota to 23 Division. They took custody of him at 11:16 a.m. Mr. Sahota was read his rights to counsel in the patrol car. He was paraded at the station and he was recorded being given his rights to counsel. One of the officers who transported Mr. Sahota conducted a level 3 search between 11:44 p.m. and 11:50 p.m. In spite of the defence’s position that Mr. Sahota’s s. 8 rights were violated during the strip search, Mr. Sahota testified he had no problem with the search at the station.
[40] Mr. Sahota was next placed in an interview room. The defence’s position is that Det. Gazey improperly questioned and solicited information from him in the interview room before the police had facilitated an opportunity for Mr. Sahota to speak to counsel. Although the Crown made it clear from the outset it would not be relying on any statements Mr. Sahota might have made, it is the defence’s position that the police conduct in this area adds to their misconduct in other areas of their investigation.
[41] It is hearsay Mr. Sahota’s evidence as to what Det. Gazey said to him. I allow that evidence as narrative and not for the truth of its content. According to Mr. Sahota, Det. Gazey told him he was going to speak to him off the record. The Officer elicited information from him about drug trafficking, other dealers and his supplier. To Mr. Sahota’s query whether Det. Gazey could assist with bail for his girlfriend, Det. Gazey responded he could not assist with that but might be able to help him on sentence. The interview was about 20 - 30 minutes which means it ended at about 12:00 a.m.
[42] Det. Gazey gave Mr Sahota his right to counsel at the end of the interview. He was not allowed to speak to counsel until just before 5:00 a.m. He had been arrested on the previous evening at 10:27 p.m.
ANALYSIS
[43] As pointed out above, the defence seeks a stay of proceedings under s. 24(1) or common law based on alleged violations under s. 7, and alternatively, exclusion under s. 24(2) of the trafficked drugs, proceeds and cell phones based on alleged violations under s. 8. The remedies are sought based on the manner of search of the condo unit, the pat down search at the scene and the level 3 search at the police station. There are also violations asserted based on the police’s failure to facilitate the right to counsel without delay.
Stay of Proceedings
Abuse of Process under s. 7 and Common Law
Notice
[44] The Crown asserts that the application materials do not sufficiently set out the defence’s claim for a stay of proceedings for abuse of process. The amended application in its preamble seeks an order under sections 7, 8, 10(a), 10(b) and 24 without specifying subsection (1). (The defence has abandoned the s. 10(a) claim). As noted earlier, it is under s. 24(1) that a stay of proceedings may be pursued as a remedy. The preamble goes on to state that the order sought is for a stay of proceedings or in the alternative for an exclusion of the evidence obtained by the police.
[45] Under the section of the application materials regarding breach of s. 7 rights, the defence calls for a stay of proceedings as a remedy for the violations by the police, or alternatively, exclusion of the evidence. In this light, the defence indicates it is bringing the claim under the residual category of abuse of process alleging prejudice to the integrity of the justice system. The order sought at the conclusion is for a stay of proceedings or exclusion of the evidence the police obtained.
[46] The Crown argues the defence’s position requesting a stay evolved substantially during the hearing after a Crown objection during Mr. Sahota’s testimony. It is the case that the defence’s position on the stay remedy was more fully set forth by defence counsel in response to the objection.
[47] Parties are not expected to provide a fully detailed presentation of their positions in their written application materials. But the application should be sufficiently fulsome as to allow the opposing party and court to appreciate the party’s position. I find that while the defence materials are not ideal in terms of their organization and appearance, and while the defence position could have been somewhat more amplified, I find the materials were sufficient to inform the Crown of the defence position. The Crown chose to call no evidence. But I find the Crown was able to amply cross-examine the defence witnesses to elicit evidence to support the Crown’s position.
[48] During the hearing, I decided the issue as to whether the defence provided sufficient notice to the Federal Crown under s. 24(1) as required under s 109 of the Courts of Justice Act. The defence is precluded from bringing an application under s. 24(1) if the defence fails to provide notice at least 15 days before the application is heard.
[49] I decided that the defence did not meet the statutory notice requirements.
[50] The defence’s alternative position seeks a remedy for abuse of process at common law. The defence’s position suggests that the statutory notice provisions do not apply at common law. However, the Crown points to an observation in the Supreme Court decision in O’Connor where the court held that where the fairness of the judicial process is at issue the analysis of the common law and the Charter will dovetail. The Supreme Court in a later decision held that O’Connor has the effect of subsuming the common law doctrine of abuse of process into the principles of the Charter: R. v. Regan, [2002] 1 S.C.R. 297, 2002 SCC 12, at para. 48 (S.C.C.).
[51] It appears from the Supreme Court decisions that the dovetailing spoken of in O’Connor applies to the subsuming of common law substantive principles on abuse of process into the principles developed under s. 7. The dovetailing does not on the face of it seem to extend to the procedural notice requirements under s. 24(1). For this reason, it is not clear to me that the statutory 15-day notice period, which if applied would oust Mr. Sahota’s application for a stay, applies at common law.
[52] I will not summarily dismiss the stay of proceedings application on the notice issue.
The Merits of Stay of Proceedings
[53] A stay of proceedings is an extraordinary remedy only to be granted in the clearest of cases. A stay may be appropriate in some extreme cases where the prejudice to the accused's ability to make full answer and defence is at risk or the integrity of the justice system is irreparable.
Regardless of whether the abuse causes prejudice to the accused, because of an unfair trial, or to the integrity of the justice system, a stay of proceedings will only be appropriate when two criteria are met: (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice.
[54] Regan goes on to say that the first criterion reflects the fact that a stay of proceedings is a prospective rather than a retrospective remedy. It does not merely compensate a wrong from the past but has as an objective to prevent the perpetuation of a wrong into the future. It is the type of wrong that will continue to adversely affect the parties and the community at large in the future: R. v. Regan, para. 54.
[55] The defence focusses on the conduct of the police during the execution of the search warrant. The allegation is that the police fabricated the evidence about where they seized the drugs. The defence contends Mr. Sahota’s drugs were outside the condo unit in the stairwells in lock boxes and that the police took the drugs into the condo unit in order to bring them within the warrant in order to charge Mr. Sahota with possession of the drugs.
[56] The defence has the burden of proof on a balance of probabilities to establish abuse of process. Under the residual category the defence has to make the case that the conduct is such that it risks impugning the integrity of the judicial process if the conduct goes on unredressed. I do not find the defence met that burden.
[57] The allegations against the police are very serious but the proof of the allegations rather thin. Mr. Sahota did not observe the search of the unit. He was under arrest and not in the condo unit when it was searched. None of the police who testified witnessed Det. Anstey seize the drugs. No one observed Det. Tracey or Det. Fraser or any other officer leave the unit for the stairwell. None of the police who testified saw any lock boxes.
[58] The defence has the burden of proving a violation of the accused’s rights. The defence chose not to call Det. Anstey. However, the defence raised a question about the Crown’s failure to call Det. Anstey as a witness. The obvious importance of his evidence is to provide support for the Crown’s theory that the drugs were found inside the condo unit and not in the stairwell.
[59] The defence argues an adverse inference should be drawn against the Crown for not calling evidence on this critical point. The defence relies on a doctrine referred to as the “tactical or shifting burden” which refers to a tactical decision required to be made by the opposing party as to whether to call critical evidence to support its theory or risk an adverse inference being drawn for failing to do so: R. v. Mach, [2017] O.J. No. 3369, at para. 51 (Ont. C.A.).
[60] However, an adverse inference is less likely to be drawn if there is a reasonable explanation for not calling the evidence: The Law of Evidence in Canada, 3rd ed. Alan W. Bryant, Sidney N. Lederman, Michelle Fuerst, at p. 109, para. 3.52.
[61] Crown counsel explained that before the preliminary inquiry commenced, the Crown learned Det. Anstey had left the jurisdiction and moved to British Columbia. The Crown was unable to obtain him as a witness. Crown counsel stated the fact that Det. Anstey was the officer who seized the drugs from the condo and was unavailable as a witness led to the decision not to prosecute the charges related to the seized drugs.
[62] I accept the reasonableness of the Crown’s explanation. The result of that decision actually lessened Mr. Sahota’s jeopardy in the criminal justice system making his defence less burdensome. I note that in the defence’s list of prospective witnesses Det. Anstey was not named, so for perhaps obvious reasons, it seems the defence did not intend to call him in any case.
[63] Ms. Boparai was in the living room on the couch when the police entered. She did not see Det. Anstey seize the drugs nor did she see any officer go out to the stairwell. She testified she had previously at times witnessed Mr. Sahota inside the condo unit place drugs into lock boxes and knew he placed them on the railings in the stairwell. But on the evening of the search she did not see any lock boxes or go out to the stairwell.
[64] I find there simply is not sufficient evidentiary support for the defence’s allegations that the police fabricated where they seized the drugs. The defence evidence is not such that it presents the clearest of cases deserving of a stay of proceedings.
[65] Ms. Boparai testified she saw the police disrupt the contents of the unit before the entry video was recorded. Her evidence was that the condo unit was tidy before the police arrived. The officers testified they simply secured the unit when they first entered and did not cause the dishevelment shown in the entry video. It was their evidence that before entry the unit was just as it appears in the entry video.
[66] It is not easy to determine where the truth lies on the state of the condo unit before entry. Both the police and Ms. Boparai gave evidence that sounded credible from each of their perspectives. However, I find that even if I were to find the police trashed the condo unit before they recorded the entry video, while not at all exemplary police conduct, this conduct would not on its own in the circumstances of this case meet the lofty standard of the clearest of cases that irreparably risks the integrity of the justice system.
[67] I must take into consideration the fact that a stay of proceedings is prospective and has as its aim to prevent the continuation of a wrong into the future. The fact in this case is that the Crown did not go to trial on drugs seized during the alleged improper police conduct in the condo unit. Mr. Sahota is not being prosecuted for those drugs. In other words, any of the police misconduct in relation to the seized drugs did not go into the future to affect the rights of the accused or the integrity of the judicial process.
[68] In summary, I do not find this is one of the clearest of cases where a stay of proceedings is appropriate. There is an alternative less stringent remedy to consider, the exclusion of the evidence, which remedy the defence is also seeking.
Exclusion
Exclusion of Drugs and Proceeds and Manner of Search
[69] As noted above, the defence argues the manner of the police search of the condo unit was unreasonable as being contrary to s. 8 of the Charter. Again, the view of the defence is that the police fabricated the evidence about where they found the drugs they seized in order that the drugs fall within the scope of the warrant. The police deny seeing lock boxes or going out to the stairwell to seize drugs from the lock boxes.
[70] The drugs seized at the condo unit are not before the court. As noted earlier, it is the trafficked drugs the defence seeks to be excluded. The case law requires that the violation occasioned by state conduct complained of must be causally, temporally or contextually connected to evidence obtained by the police. The Ontario Court of Appeal summarizes the principles for deciding under what circumstances a violation by police may result in exclusion.
- The approach should be generous, consistent with the purpose of s. 24(2)
- The court should consider the entire “chain of events” between the accused and the police.
- The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct.
- The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections.
- But the connection cannot be either too tenuous or too remote.
R. v. Pino, 2016 ONCA 389, at para. 72 (Ont. C.A.)
[71] The defence bases its argument on a contextual connection between the manner of the search and the evidence sought to be excluded. The defence contends that the trafficking operation that led to the police obtaining the drugs before the court is part of the same transaction as the police conduct during the search of the condo unit.
[72] I cannot accept the defence’s position.
[73] The undercover operation involved an officer, Det. Bhogal, who had no connection with the search of the unit. Neither were Det. Greaves nor Det. Gazey, who arrested Mr. Sahota for drug trafficking, involved with the search of the condo unit. Mr. Sahota was under arrest and in the custody of the police at 23 Division when the search was being conducted.
[74] I find the undercover drug buys were not part of the same transaction as the search of the condo unit. Mr. Sahota was not found with any drugs or paraphernalia on his person during the search of his person. I conclude in the circumstances it would be to overly stretch the contextual criterion to find a common transaction. Under the circumstances, I must conclude that the police conduct on the search is not sufficiently proximate contextually to the trafficked drugs to allow the trafficked drugs to be excluded.
Exclusion of Evidence and Search of Mr. Sahota’s Person
[75] Mr. Sahota underwent a pat down search at the scene after he was arrested. The evidence is that the arresting officer pulled back Mr. Sahota’s underwear and pants during the search of his body. There is no evidence that his body was exposed or that the search was conducted in a demeaning or overly invasive fashion. Without more I find the defence evidence does not rise to the level of an unreasonable search requiring exclusion of the trafficked drugs.
[76] Regarding the level 3 search at the station, Mr. Sahota testified he did not find any problems with the police conduct on the search. I find there is no basis to consider excluding the evidence based on the search at the station.
Exclusion of Evidence and Rights to Counsel
[77] There is no dispute that Mr. Sahota’s right to counsel was violated when some six hours elapsed before the police facilitated speaking to counsel. This is undoubtedly a breach of Mr. Sahota’s 10(b) rights. Mr. Sahota spent hours in the police station in an interview room. He spoke to a police officer not knowing the extent of his jeopardy and without having the security of communicating with a lawyer.
ADMISSIBILITY INQUIRY UNDER S. 24(2) of the Charter
[78] The only remaining Charter issue is the violation of Mr. Sahota’s right to counsel.
[79] Section 24(2) grants the court the authority 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. The balancing exercise engages three inquiries: (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: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71 (S.C.C.).
[80] On the first inquiry, I find the police officers’ breach in not facilitating the call to counsel for some six hours was not trivial particularly in view of the fact that Mr. Sahota had asked to speak to counsel three or four times. However, I do not find the police’s failings to have been committed in bad faith.
[81] It appears, according to the evidence, with the numbers of officers involved with Mr. Sahota that no one took the responsibility on themselves to ensure that he spoke to counsel in a timely fashion. No one advised Mr. Sahota about the reason for the delay as they are required to do. However, I have no evidence that the police deliberately set out to prevent Mr. Sahota from speaking to counsel. It seems it was more an administrative foul up or carelessness among the officers than a deliberate plan to prevent facilitating the call to counsel.
[82] I take into account that rights to counsel were not totally ignored. He was given his rights at least three times after his arrest. While such an extensive delay is not excusable I find the breach not to be on the most extreme end of the spectrum. This, however, is not to minimize this type of police conduct. The court should not be seen to condone this type of practice.
[83] On the second inquiry on the impact of the violation on Mr. Sahota’s protected interests under s. 10(b), the court must examine the extent to which the breach actually undermined the interests protected by the right infringed. The court is required to evaluate whether the impact of a breach is fleeting and technical to profoundly intrusive in nature: R. v. Grant, at para. 76.
[84] I find the breach was not profoundly intrusive in nature. I have found that not facilitating his right was not the result of a deliberate plan; that it was not bad faith intentional conduct.
[85] Avoiding prolonged delay in facilitating 10(b) rights is not a novel concept in police work. It is not unexpected that a six-hour delay would be considered excessive. This means an accused is languishing in a police station unsure of his jeopardy and his rights in relation to the police. I find this did not have merely trivial or technical impact on Mr. Sahota and should not be taken lightly.
[86] Again, I find the court should distance itself from this conduct and not be seen to condone it.
[87] The third inquiry requires the court to look at the seriousness of the offence.
[88] The Supreme Court of Canada in R. v. Harrison asks for a balancing of 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.
[89] Mr. Sahota admits he is a trafficker of heroin and other drugs. Trafficking in relatively large quantities of a pernicious and very addictive drug is not trivial. This is a very serious offence that often spawns in its wake violent crime. Trafficking in drugs like heroin and heroin addiction have been found to wreak serious havoc on families and communities.
[90] In terms of the effects of exclusion on the Crown’s case, the heroin and money seized would provide conclusive proof of Mr. Sahota’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.).
Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society’s “collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law”
[91] 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.
[92] I have weighed the three inquiries and conclude, given the seriousness of the offence and the nature of the singular violation of Mr. Sahota’s rights, that the long-term interest of the administration of justice would not be served by excluding the evidence in this case. I find the balance favours of the admission of the drugs, proceeds and cell phones obtained by the police from Mr. Sahota on August 25, 2015.
DISPOSITION
[93] I order that the drugs, proceeds of crime and cell phones obtained by the police on August 25, 2015 be admitted for trial.
B.A. ALLEN J. Released: October 25, 2018
cited_cases: legislation: - title: "Canadian Charter of Rights and Freedoms" url: "https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-b-7/latest/rsc-1985-c-b-7.html" - title: "Courts of Justice Act, R.S.O. 1990, c. C.43" url: "https://www.ontario.ca/laws/statute/90c43" case_law: - title: "R. v. O’Connor, [1995] 4 S.C.R. 411" url: "https://www.canlii.org/en/ca/scc/doc/1995/1995canlii51/1995canlii51.html" - title: "R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297" url: "https://www.canlii.org/en/ca/scc/doc/2002/2002scc12/2002scc12.html" - title: "R. v. Mach, 2017 ONCA 540" url: "https://www.canlii.org/en/on/onca/doc/2017/2017onca540/2017onca540.html" - title: "R. v. Pino, 2016 ONCA 389" url: "https://www.canlii.org/en/on/onca/doc/2016/2016onca389/2016onca389.html" - title: "R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353" url: "https://www.canlii.org/en/ca/scc/doc/2009/2009scc32/2009scc32.html" - title: "R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494" url: "https://www.canlii.org/en/ca/scc/doc/2009/2009scc34/2009scc34.html"