Court File and Parties
COURT FILE NO.: CR-16-90000581-0000 DATE: 20190 426 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – SABRULLAH KHAN
Counsel: Bari Crackower & Faiyaz Alibhai, for the Crown/Respondent Gregory Lafontaine & Ricardo Golec, for the Applicant/Accused
HEARD: March 18, 19, 20 and 21, 2019
B. Davies J.
REASONS FOR DECISION
(Charter application)
A. Background
[1] Mr. Khan was charged with trafficking heroin and possession of heroin for the purpose of trafficking.
[2] An undercover officer arranged to buy two kilograms of heroin from Hassan Hatemi. The deal was to take place on September 24, 2013. The police set up surveillance on Mr. Hatemi in anticipation of the deal. They also set up surveillance on Brandon Rilling, who was working for Mr. Hatemi at the time. Mr. Khan came to the attention of the police for the first time during their surveillance of Mr. Rilling on September 24, 2013.
[3] Mr. Khan met Mr. Rilling in the parking lot of a Canadian Tire. Mr. Khan was driving a black van. He pulled up to the front doors of the store and Mr. Rilling got in the front passenger sea of the vant. Mr. Khan drove into the underground parking lot of the Canadian Tire. A minute or two later, Mr. Rilling got out of the van carrying a black reusable shopping bag.
[4] Mr. Rilling was arrested as he walked back to his car carrying the shopping bag. When the police searched the bag, they found a brick-shaped package of heroin, weighing 991.36 grams, wrapped in duct tape and inside a clear Ziploc bag.
[5] Mr. Khan was arrested at 1:20 pm on September 24, 2013 by Sergeant Benoit a short distance away from the Canadian Tire. He was still in the van at the time.
[6] Mr. Khan was advised of the reason for his arrest and given his rights to counsel within a minute or two of his arrest. Mr. Khan told Sergeant Benoit he wanted to speak to a lawyer. He gave Sergeant Benoit the lawyer’s name. No effort was made to put Mr. Khan in touch with a lawyer until 7:20 p.m., six hours after his arrest.
[7] The police searched the van Mr. Khan was driving when he was arrested incidental to his arrest. They found 28.16 grams of heroin in a closed compartment in the rear seat as well as four cellular phones, clear plastic baggies and a black reusable shopping bag similar to the one Mr. Rilling was carrying when he was arrested. Mr. Khan does not challenge the authority of the police to search the van incident to arrest.
[8] Mr. Khan does, however, bring an application to exclude the evidence the police seized from the van during their search. Counsel for Mr. Khan initially made an argument that his rights under s. 10(a) were breached but quite appropriately abandoned those arguments on the voir dire.
[9] The three issues to be decided on this application are as follows: i. Did the police violate Mr. Khan’s rights under s. 10(b) of the Charter by delaying his access to counsel for six hours? ii. If Mr. Khan’s s. 10(b) rights were violated, was the evidence seized from the van obtained in a manner that violated his rights? iii. If the evidence in the van was obtained in a manner that violates Mr. Khan’s Charter rights, should it be excluded under s. 24(2) of the Charter.
[10] On March 19, 2019, I ruled that the police violated Mr. Khan’s rights under s. 10(b) of the Charter and that the evidence seized from Mr. Khan’s vehicle was obtained in a manner that violated his Charter rights. Finally, I found that the admission of the evidence from the car, in all the circumstances of this case would bring the administration of justice into disrepute. These are the reasons for that ruling.
B. Police violated Mr. Khan’s rights to counsel
[11] Section 10(b) requires the police to advise a detained person of his rights to counsel without delay. If the detained person wants to speak to counsel, the police must immediately provide him with a reasonable opportunity to speak to counsel: R. v. Suberu, 2009 SCC 33 at paras. 38 and 42; R. v. Rover, 2018 ONCA 745 at para. 25.
[12] Courts have recognized that there may be circumstances that will justify some delay in providing a detainee with an opportunity to speak to counsel. Those circumstances generally relate to police safety, public safety, the preservation of evidence or other urgent or dangerous circumstances: R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Learning, 2010 ONSC 3816; R. v. Pino, 2016 ONCA 561 at para. 31; Rover at paras. 26 and 33.
[13] In Rover at para. 27, Doherty J.A. held that the police can delay access to counsel “only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel.” Concerns of a general or non-specific nature cannot justify delaying access to counsel. Similarly, police convenience or efficiency will not justify delaying access to counsel. Even if the circumstances justify some delay, the police must take reasonable steps to minimize the delay in facilitating access to counsel: Rover at paras. 27 and 33.
[14] In Rover, the police arrested the accused before obtaining a warrant to search his residence. The police had a practice of preventing people who were under arrest from speaking to counsel if they intended to obtain a warrant to search for drugs in order to avoid any risk that evidence will be destroyed. In that case, the Court held that the officers did not turn their mind to any specific circumstances that would justify arresting Mr. Rover before obtaining a warrant and then delaying his access to counsel.
[15] Mr. Khan was arrested as part of a joint investigation involving the Toronto Police Service, the Ontario Provincial Police and the Canadian Border Services Agency. There were 7 targets of the investigation. Mr. Khan was not a target of the investigation. Before Mr. Khan’s arrest on September 24, 2013, the police obtained warrants to search 8 residences, 9 vehicles and 2 other locations. In other words, the police were planning to conduct surveillance, execute a number of warrants and arrest a number of people on September 24, 2013.
[16] As set out above, Mr. Khan was arrested at 1:20 pm. The arresting officer immediately advised Mr. Khan of his rights to counsel. Mr. Khan said he wanted to speak to Joseph Bloomenfeld.
[17] Mr. Khan remained at the scene of his arrest for an hour and 15 minutes. No evidence was adduced on the voir dire to explain this delay.
[18] At 2:35 p.m. Mr. Khan was transferred into the custody of another police officer, who again advised him of his rights to counsel. Mr. Khan also told Constable Leung that “he would like to speak to his lawyer.” Constable Leung told Mr. Khan that the police would call a lawyer for him when they got to the police station.
[19] Mr. Khan arrived at the police station at 3:00 p.m. and was placed in a room on his own.
[20] A call was not made to Mr. Bloomenfeld until 7:20 p.m., 6 hours after Mr. Khan was arrested and first asserted his right to counsel.
[21] In total, 8 people were arrested as part of the police operation on September 24, 2013. Two were released from the police station on Promises to Appear. The remaining six were held for bail hearings. Only one officer, Detective Coulthard, was assigned to process all the individuals arrested as part of this investigation and facilitate their access to counsel.
[22] Detective Coulthard was not called as a witness but his notes were filed as an exhibit. The notes show that Detective Coulthard processed the six detained individuals and facilitated their rights to counsel from 3:00 p.m. until approximately 8:00 p.m. Mr. Khan was the last of the six to be given an opportunity to speak to counsel.
[23] The Crown argued that it was reasonable for the police to assign one officer to facilitate rights to counsel for all the detainees and that Detective Coulthard “did his best” to get them all in touch with counsel as quickly as possible. The Crown argues that, in the circumstances of a project case like this, the delay in affording Mr. Khan access to counsel was not a violation of s. 10(b). I do not agree.
[24] It is true that the police arrested a number of people at approximately the same time that Mr. Khan was arrested and were executing a number of warrants that day. This, however, was all part of their operational plan. The investigation in this case had been ongoing for more than two years. The police had sought and obtained a number of search warrants. The police planned to execute the warrants and make a number of arrests on September 24, 2013. This is not a case where the police found themselves unexpectedly arresting a large number of people.
[25] The Crown filed a will-say from Detective Goulah that states that it is “not uncommon” for accused to be withheld phone access “until such time as the search warrants are executed and officers are safe”. Again, there is no evidence in this case that any officer turned his/her mind to whether there were any case-specific circumstances that would justify suspending Mr. Khan’s rights to counsel (or any of the other individuals arrested as part of the same operation).
[26] In fact, it does not seem that the police actually made a decision to suspend or delay Mr. Khan’s rights to counsel at all. The six-hour delay in providing Mr. Khan access to counsel was simply the result of inadequate resources being allocated to this part of the police operation. The police created, and could have avoided, the circumstances the Crown now seeks to rely on to justify the delay in facilitating Mr. Khan’s access to counsel – inadequate resourcing.
[27] In my view, s. 10(b) of the Charter requires the police to assign enough personnel to the task of facilitating each detainee’s right to access counsel immediately when they are planning to make a number of arrests. Police efficiency and convenience in terms of resource allocation cannot justify delaying an accused’s right to speak to counsel for six hours.
[28] As the Court pointed out in Rover, the effective implementation of the right to counsel depends entirely on the police. The failure on the part of the police to allocate appropriate resources to facilitating rights to counsel in a large-scale investigation like this reveals a complete disregard, at an institutional level, for the Constitutional rights of the individuals being arrested.
[29] To be clear, I am not being critical of Detective Coulthard personally. He made significant efforts to connect each of the detained individuals with their counsel of choice. My criticism is directed towards those who decided to assign only one officer to the important task of facilitating rights to counsel, or failed to turn their minds to the need to allocate more officers to this step in the operation, in the context of an orchestrated takedown of a number of people.
[30] I find that the circumstances of this case did not justify delaying Mr. Khan’s Charter rights for six-hours. The delay is a violation of his rights under s. 10(b) of the Charter.
C. Evidence seized from the vehicle was obtained in a manner that violates Mr. Khan’s Charter rights
[31] The next issue to be determined is whether the evidence seized during the search of Mr. Khan’s vehicle was obtained in a manner that violates his Charter rights.
[32] Mr. Khan was advised of his rights to counsel before the police searched his vehicle incident to arrest. The violation of Mr. Khan’s s.11(b) rights occurred after the evidence was located in the vehicle. There is, therefore, no causal connection between the Charter violation and the discovery of the impugned evidence. Nonetheless, I find that the Charter breach was temporally and contextually connected to the breach.
[33] In R. v. Strachan, [1988] 2 S.C.R. 980 at para. 46, the Supreme Court held that “obtained in a manner” does not require a causal connection between the Charter violation and the discovery of the impugned evidence. A temporal connection is sufficient so long it is not too remote and the breach and the discovery of the evidence occurred “in the course of a single transaction.”
[34] In R. v. Plaha, [2004] O.J. No. 3484 (C.A.) at para. 45, Doherty J.A. endorsed a more “generous approach” to the issue of whether evidence was obtained in a manner that violates an accused’s Charter rights:
A causal relationship between the breach and the impugned evidence is not necessary. The evidence will be “obtained in a manner” that infringed a Charter right if on a review of the entire course of evidence, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct. The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal or a combination of the three. The connection must be more than tenuous.
[35] In Pino, the Court of Appeal excluded 50 marijuana plants found in the trunk of the accused’s car during a search incident to her arrest. The arrest and the search were both lawful. However, in the course of the arrest, the police failed to properly advise Ms. Pino of her rights to counsel and denied Ms. Pino access to counsel for over five hours. The police also carried out the arrest in an unreasonable manner. The Court held that there was no causal connection between the breaches of Ms. Pino’s rights and the search of the car. Nonetheless, the Court found, at para. 74, that there was both a temporal and contextual connection between the breaches and the discovery of the evidence:
The connection is temporal because the three breaches are relatively close in time and are part of a continuum straddling Ms. Pino’s arrest. The connection is also “contextual”. I take “contextual” – a word often used by lawyers and judges – to mean pertaining to the surroundings or situation in which something happens. In this case, the something that happened is Ms. Pino’s arrest. And the two s. 10(b) breaches form “part of the context” in which the s. 8 breach occurred.
[36] Here, both the s. 10(b) breach and the discovery of the evidence occurred in the course of Mr. Khan’s arrest. I, therefore, find a temporal and contextual connection between the breach and the discovery of the evidence that is neither remote nor tenuous.
D. The admission of the evidence found in Mr. Khan’s vehicle would bring the administration of justice into disrepute
[37] To determine whether the admission of the impugned evidence would bring the administration of justice into disrepute, the court must balance the three factors set out in R. v. Grant, 2009 SCC 32 at paras. 72 to 86: the seriousness of the Charter-infringing state conduct, the impact of that conduct on the Charter-protected interests of the accused and society’s interests in an adjudication of the case on its merits.
[38] I find that the first two Grant factors favour the exclusion of the evidence in this case. The Charter-infringing state conduct was very serious and had a significant impact on Mr. Khan’s rights. The third factor favours the admission of the evidence. However, balancing all the factors, I find that the admission of the evidence found in the vehicle during the search incident to arrest would bring the administration of justice into disrepute.
i. The Charter-infringing state conduct is very serious in the circumstances
[39] The failure on the part of the police to allocate adequate resources to facilitate each detainee’s rights to counsel in this case without delay reflects an institutional disregard on the part of the police for the Charter rights of Mr. Khan and the other individuals arrested as part of their operation on September 24, 2013.
[40] In Grant, the Court recognized that state conduct resulting in Charter violations will vary in seriousness. The Court noted, at para. 74, that admitting evidence obtained “through a wilful or reckless disregard of Charter rights will inevitably have a negative impact on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.
[41] Here, at a minimum, the police demonstrated a reckless disregard for the Charter rights of Mr. Khan on both an institutional and operational level. There are no extenuating circumstances that would attenuate the seriousness of the police conduct in this case. The Charter-infringing conduct is, therefore, very serious.
[42] The state conduct is made more even more serious by two additional factors.
[43] First, the inadequate allocation of resources impacted more than just Mr. Khan. While Mr. Khan’s rights to counsel were delayed for the longest period of time, a number of the other individuals arrested as part of the same police investigation waited three hours or more to speak to their counsel of choice. This is further evidence of a police disinterest in the Charter rights of the individuals they arrested.
[44] As the Supreme Court noted in Grant, at para. 75, trial judges must keep in mind that for every Charter breach that is adjudicated in court, “many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge.” As a result, evidence that Charter-infringing state conduct is part of a pattern of abuse will increase the seriousness of the conduct and support the exclusion of evidence.
[45] Again, the police did not turn their mind to whether the circumstances in this case would justify delaying access to counsel for the individuals arrested. Rather, they simply allocated insufficient personnel to put the detainees in touch with counsel immediately. This decision impacted a number of accused, not just Mr. Khan, which reveals a pattern of conduct that must be denounced by the Court.
[46] Second, the law relating to the duty of the police to facilitate access to counsel was clear and settled at the time of Mr. Khan’s arrest. The Crown argued that in 2013 the law was not clear on how long the police could delay implementing a detainee’s rights to counsel under s. 10(b). The Crown suggests that the Court of Appeal’s decision in Pino in 2016, which post-dates Mr. Khan’s arrest, was a watershed decision that significantly clarified the law on this issue. I do not agree.
[47] The law has been clear since the Supreme Court of Canada’s 2009 decision in R. v. Suberu that the phrase “without delay” in s. 10(b) of the Charter requires the police to implement the accused’s rights to counsel immediately (at para. 42):
In our view, the words “without delay” must mean “immediately” for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that duty immediately upon detention.
[48] As the Court held in Grant, at para. 75, “ignorance of Charter standards must not be rewarded or encouraged.” The fact that those in charge of planning and executing the police operation on September 24, 2013 did not seem to understand their clear obligations under the Charter exacerbates the seriousness of the conduct in this case.
[49] Given the institutional nature of the misconduct, the impact it had beyond Mr. Khan’s case and the lack of ambiguity in the law, I find the Charter-infringing state conduct was very serious in this case.
ii. The impact of the conduct on the Charter-protected interests was significant
[50] I can do no better than quote Doherty J.A.’s description at para. 45 of Rover of the impact of a similar six-hour delay in accessing counsel:
The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.
[51] In this case, instead of providing Mr. Khan with the “lifeline” when he requested it, the police kept him at the scene of his arrest for over an hour and then left him in an interview room by himself for more than four hours.
[52] Mr. Khan twice asked to speak to a lawyer and was told, almost 5 hours before he actually spoke to his lawyer, that he would be given that opportunity when he got to the police station. Instead, he was put into a room in the Criminal Investigation Bureau. There is no evidence that any officer spoke to Mr. Khan between 3:07 p.m. and 7:15 p.m. when he was brought into an interview room by Detective Coulthard and efforts were made to reach his lawyer for the first time. In other words, Mr. Khan was held for several hours without any explanation for why he was not allowed to speak to counsel, and without any indication of when he might be allowed to speak to someone.
[53] I find that the impact on Mr. Khan’s Charter-protected rights was significant in the circumstances of this case because of the psychological pressure brought to bear on him as a result of the delay in allowing him to speak to counsel. This factor favours the exclusion of evidence in this case.
iii. Society’s interest in an adjudication of the case on its merits favours the admission of the evidence
[54] The final Grant factor clearly favours the admission of the evidence seized from Mr. Khan’s vehicle during the search incident to arrest. The items found, in particular the 28.16gms of heroin, are all reliable evidence.
[55] The heroin found in the car is crucial to the Crown’s case on the possession for the purpose of trafficking charges. To exclude the drugs found in the vehicle would effectively preclude the prosecution from proceeding on that count.
[56] Nonetheless, in R. v. McGuffie, 2016 ONCA 365 at para. 63, the Court of Appeal held that that “if the first and second inquires make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility.”
[57] In Rover at para. 27, Doherty J.A. held that the police delay access to counsel “only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel.”
iv. Conclusion
[58] Here, the first inquiry strongly favours the exclusion of the evidence. The long-term repute of the administration of justice requires the exclusion of evidence, given the clear lack of priority given by the police to Mr. Khan and the other detainees’ rights to counsel in this case. The second inquiry also points to the exclusion of evidence, although not as significantly as the first inquiry. The third inquiry does not tip the balance in favour of admissibility in the circumstances of this case and, for these reasons, the evidence was excluded.
B. DAVIES J.
