Court File and Parties
COURT FILE NO.: CR 18/7-285 DATE: 20190605 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN Respondent – and – INDRIT ZANGANJORI Applicant
Counsel: Scott Graham, for the Respondent Roots Gadhia, for the Applicant
HEARD: April 25th and 26th, 2019
Justice Peter Bawden
1Police received a 911 call at 2:54 a.m. concerning a man with a gun. Four officers entered a bar looking for the suspect. They saw the accused and recognized that he matched the description of the suspect. P.C. Keown approached Mr. Zanganjori, advised him that they were investigating a gun call and asked him to submit to a search. Mr. Zanganjori questioned the authority of the officer to search him, whereupon P.C. Keown grabbed his arms, handcuffed him to the rear and searched him. The officer then told Mr. Zanganjori that he was under investigative detention and took him to the patio of the bar where he remained in handcuffs for the next 1½ hours.
2While Mr. Zanganjori was detained on the patio, the officer went searching for a gun. He never did find a gun but, using keys which he had seized from Mr. Zanganjori during the initial search, he found Mr. Zanganjori’s car. The car was impounded and eventually searched pursuant to a search warrant. A BB gun was found in the trunk of the car.
3These are my reasons for finding that Mr. Zanganjori’s rights under section 9 of the Charter were violated and that the BB gun should be excluded from evidence at his trial.
Factual Issues
4Mr. Zanganjori alleges that his rights under sections 8, 9, 10(a) and 10(b) of the Charter were infringed. The parties raised a number of factual issues in their submissions. Not all of those issues must be resolved in order to decide the application. I have concluded that I must resolve only the following questions:
a. Did the police advise Mr. Zanganjori of the reasons for the investigative detention and provide him with his rights to counsel without delay? b. Did Mr. Zanganjori indicate that he wished to speak to a lawyer at any time prior to arriving at the police station? c. Did P.C. Keown find Mr. Zanganjori’s wallet and car keys on a table in the bar as he claimed or did he remove those items from the applicant’s pockets in the course of a search incident to the investigative detention? d. Was Mr. Zanganjori ever placed under arrest during the one hour and forty minutes that he was held on the porch?
Did police advise Mr. Zanganjori of the reasons for the investigative detention and advise him of his right to counsel without delay?
5P.C. Keown was not available as a witness on the application and the Crown relied on his preliminary inquiry testimony. The officer described his approach to the accused as follows:
I approached the high table where the two males were seated. I informed them of the reason for our attendance that we were responding to a weapons call at which time I focused my attention on the male that matched the description. I had informed him again that he matched the description and that I would like to search him for weapons and I’d like to have him put his hands above his head. He laughed at me and said ‘you’re going to need more than that’, at which point I immediately took his right arm – or excuse me, I believe it was his right arm and I instructed PC Gundert to take his left arm because I, at that time, believed that the male had a firearm in his waistband and he would not allow me to search him and that caused me great concern…
So I took one arm, I instructed PC Gundert to take the other. The male suspect was handcuffed to the rear at which time I immediately removed him from the bar and then conducted my pat down search for weapons only. The male at this point was informed that he was placed under investigative detention at which time I tried to read the male his rights to counsel and caution him under the Charter and I recall he refused to acknowledge my reading him his rights. So I attempted again to read him his rights to counsel and caution him under the Charter and again he refused to acknowledge these rights.
Preliminary Inquiry Transcript of P.C. Keown April 10th, 2018 at Page 6, Line 22 to Page 7, Line 15
6Mr. Zanganjori disputes this account of events. He recalls that P.C. Keown told him that he fit a description and then immediately threw him to the ground. The officer then handcuffed him and searched him, removing his wallet and car keys from his pockets. The applicant loudly demanded to know what he was being charged with and the officer answered that he fit a description and was under investigation. Mr. Zanganjori’s requests to be allowed to speak to a lawyer were ignored. Police repeatedly asked him where the gun was.
7It would be gratifying to be able to say with certainty that the police explained to Mr. Zanganjori precisely why he was being detained and immediately advised him of his rights to counsel. The evidence does not permit anything approaching certainty on these points. After considering all of the evidence, I find on a balance of probabilities that it is more likely than not that P.C. Keown did advise Mr. Zanganjori that he was being detained for investigation in regards to a weapons offence and that he read him his rights to counsel. I have come to that guarded conclusion for the following reasons.
a. P.C. Keown’s preliminary inquiry testimony was generally confirmed by two other officers. i. P.C. Ho testified that P.C. Keown detained Mr. Zanganjori in regards to an assault investigation and provided him with his rights to counsel. These events were noted in P.C. Ho’s notebook. He could not recall if they occurred inside the bar or on the porch outside. ii. P.C. Gundert recalled that P.C. Keown told Mr. Zanganjori at the time of his detention that he was being detained in regards to a firearms investigation. He did not recall P.C. Keown providing rights to counsel but P.C. Gundert remained inside the bar when the applicant was taken out to the porch and it is quite possible that rights to counsel were provided there. b. P.C. Ho guarded Mr. Zanganjori for over 1½ hours on the porch. He did not recall Mr. Zanganjori ever asking why he was being held during the time that they spent sitting on the porch together. The fact that Mr. Zanganjori never asked why he was being held suggests that he was satisfied with the explanation that he had received at the outset of his detention. c. Mr. Zanganjori testified that officers repeatedly asked him where the gun was during the time that he was detained. It is apparent from his evidence that he was aware that police were looking for a firearm and that his detention was related to that investigation.
8Police are trained to calm persons who are in custody. It is to everyone’s advantage - particularly police - that detained individuals do not resist detention and accept their situation with minimal conflict. Providing a detainee with an explanation for the detention is a very effective first step in achieving those goals. P.C. Keown was undoubtedly abrupt in his actions, likely used excessive force and was seemingly unconcerned with Mr. Zanganjori’s rights. I do believe, however, that he advised Mr. Zanganjori that he was being detained in regards to the investigation of a gun call and, at least at the outset of the detention, that was a satisfactory explanation.
Did Mr. Zanganjori indicate that he wished to speak to a lawyer at any time prior to arriving at the police station?
9P.C. Keown testified that he advised Mr. Zanganjori of his rights to counsel “multiple times” and that Mr. Zanganjori refused to answer or acknowledge that the rights had been read.
10Mr. Zanganjori disputes the officer’s evidence. According to Mr. Zanganjori, he knew that the police were violating his rights, he loudly objected to those violations and he demanded to be able to speak to a lawyer throughout his detention.
11The video from the booking hall does not support Mr. Zanganjori’s testimony.
12When Mr. Zanganjori was initially brought into the booking area, he remained mute in the face of a series of questions which were put to him by the booking sergeant. The questions included whether Mr. Zanganjori had been advised of his rights to counsel and if he understood his rights. It is difficult to understand why Mr. Zanganjori would not have responded to these questions if, as he maintains, he had been asking to call a lawyer for the last two hours and had been ignored.
13The booking sergeant then turned to P.C. Keown and asked him if Mr. Zanganjori had been speaking earlier. P.C. Keown replied “no, he’s been like that all night, not answering our questions and refusing to acknowledge that he had been read his rights to counsel.” Mr. Zanganjori did not challenge this statement even though he knew that the booking process was being recorded on video.
14Mr. Zanganjori eventually did begin to speak. He angrily told the booking sergeant that his rights had been violated, that he wished to speak to his wife and after her, a lawyer.
15Although I find Mr. Zanganjori to be a generally credible witness, his evidence is unreliable in some respects and his recollections concerning the provision of rights to counsel is one such area.
a. Mr. Zanganjori testified that he was never arrested or provided his rights to counsel at any time prior to his appearance in the booking hall. P.C. Ho testified that he arrested Mr. Zanganjori on the charge of assault immediately prior to entering the booking hall and noted that he wished to call a lawyer. This arrest at such a late stage was most unusual and I cannot think of any reason why P.C. Ho would have noted it if it did not actually occur. The arrest took place in the scout car and therefore would have been recorded on the in car camera. 1 I have no doubt that the arrest did occur and Mr. Zanganjori either does not recall it or did not understand its significance. b. At one point in his evidence, Zanganjori claimed that he was not aware that he was on video when he appeared in the booking hall. He was advised prior to entering the booking hall that the proceedings would be video recorded and that warning was itself captured on the video.
16Mr. Zanganjori is an immigrant from Albania. I infer from his strong accent that English is not his first language. He is employed as a painter. He had no experience with the criminal justice system at the time of his arrest and his comments in the booking hall reflect that.
17By 5:30 a.m., Mr. Zanganjori was tired, angry and frustrated. He had been held in handcuffs for almost 2½ hours for no discernible reason. These are circumstances which would frustrate and enrage anyone. It is no surprise that his recollections of that time are unreliable.
18I do find that Mr. Zanganjori was advised of his right to counsel. I am not satisfied that he invoked his right by asking to call a lawyer. When he was asked on video if he wished to speak to a lawyer, he refused to respond. When he later did begin to speak, he asked to call his wife, not a lawyer. If Mr. Zanganjori wished to speak to his wife in order that she would assist him in obtaining legal counsel, he was obliged to convey that intention to the police. (See R. v. Mumtaz, 2019 ONSC 468 at paragraph 38.) Based on the evidence before me, I find that he did not do so.
Did P.C. Keown find Mr. Zanganjori’s wallet and car keys on a table in the bar as he claimed or did he remove those items from the applicant’s pockets in the course of a search incident to the investigative detention?
19P.C. Keown testified that he handcuffed Mr. Zanganjori inside the bar and then took him out to the patio to search him “for weapons only”. He does not report having found anything. At some point later in the morning, the officer claims to have noticed a set of keys, a cell phone and a wallet on top of the table where Mr. Zanganjori had been sitting. P.C. Keown took the keys and began to hit the panic alarm on the key fob until it activated the alarm in Mr. Zanganjori’s vehicle.
20Mr. Zanganjori denied that the items were on top of the table when police entered. He testified that P.C. Keown took his wallet and keys out of his pocket in the course of the search and put them on top of the table.
21I have no hesitation in accepting Mr. Zanganjori’s evidence on this point.
22On the most basic level, I find that it is generally improbable that Mr. Zanganjori would leave such important items openly displayed in a bar rather than keeping them in his pockets. There is no evidence that either item was bulky and therefore likely to cause him discomfort while in his pockets. People generally keep valuable items in their pockets where they won’t lose them or risk having them stolen.
23Mr. Zanganjori’s evidence before me was consistent with statements which he made in the booking hall. He insisted there that his money had been taken from him when he was inside the bar.
24Two other officers who entered the bar at the same time as P.C. Keown testified that they did not see the keys and wallet on the table as they approached Mr. Zanganjori.
- P.C. Ho initially testified in chief that he saw the keys and wallet being removed from the applicant’s pockets and put on the table by P.C. Keown. The Crown returned to the topic several times and P.C. Ho eventually changed his testimony to say that he could not recall whether the property had come out of Mr. Zanganjori’s pocket or not. In cross-examination, he returned to his original recollection.
- P.C. Gundert did not recall having seen any items on the table prior to the search of Mr. Zanganjori.
25Mr. Zanganjori had some weaknesses as a witness but, on this point, his evidence was entirely plausible and consistent with the evidence of Constables Ho and Gundert.
26I would also say that I have distinct reservations about the credibility of P.C. Keown despite the fact that his evidence was only available in transcript.
- P.C. Keown testified that when he first arrived at the bar, he saw two constables speaking to the bartender outside of the bar. He said “all I saw was a blonde female… and my first initial impression was that she was trying to keep the officers out, which is in fact what she was doing… I did not believe what she was saying and made my way into the bar.” P.C. Keown’s impressions were entirely unfounded. The bartender, P.C. Sabalya and P.C. Gundert all testified at the preliminary inquiry and none recalled the bartender offering any resistance to police entering the bar.
- On his own account of events, P.C. Keown showed little or no regard for any limitations on his authority as a police officer. He initially testified that he had not requested the applicant’s consent to search prior to placing him in handcuffs. He then changed his evidence to say that he did ask for consent and that the applicant had “laughed at me and said ‘you’re going to need more than that’”. P.C. Keown described this statement as “open defiance” and it prompted him to take immediate physical control of the applicant.
- At P.C. Keown’s direction, Mr. Zanganjori remained handcuffed behind his back in a highly public area for over 1½ hours. If there was any public safety concern which initially required that the applicant be handcuffed, that concern evaporated once it was determined that he was not carrying any weapon. No explanation was ever offered as to why it was necessary to hold the applicant in handcuffs for such a prolonged period pursuant to an investigative detention.
- There is no evidence that P.C. Keown even turned his mind to how long he could hold the applicant in investigative detention.
27Keys can be used as weapons. P.C. Keown may well have been justified in removing the keys from Mr. Zanganjori’s pocket during a safety search but using those keys to further the investigation against him was not. I find that P.C. Keown’s evidence that he found the keys on top of the table was a fabrication which was intended to provide a legal justification for using evidence which he knew to have been obtained in an unlawful manner. I reject the officer’s testimony and accept the evidence of the applicant that P.C. Keown removed the keys himself from Mr. Zanganjori’s pockets.
Was Mr. Zanganjori ever placed under arrest during the one hour and forty minutes that he was held on the porch and, if so, for what offense?
28P.C. Keown testified that he detained Mr. Zanganjori for possession of a firearm. When he found the applicant’s vehicle, he returned to the porch and arrested Mr. Zanganjori. His testimony did not disclose the charges that he was arrested on, the time of the arrest or Mr. Zanganjori’s responses when he was purportedly advised of his rights to counsel. There is no evidence that P.C. Keown made a note of the arrest. In the booking hall, P.C. Keown listed the charges as assault with a weapon and threatening death.
29P.C. Ho was guarding Mr. Zanganjori from his initial detention until he was booked into the station. P.C. Ho did recall P.C. Keown returning to the porch at some point after the initial detention but he did not note or recall any arrest taking place.
30P.C. Ho arrested Mr. Zanganjori himself at 4:52 a.m. on the charge of simple assault. This arrest occurred immediately prior to bringing Mr. Zanganjori into the booking hall. P.C. Ho could not explain why he had arrested Mr. Zanganjori on the charge of assault nor why that arrest had occurred at such a late stage of the proceedings. Plainly, P.C. Ho would have had no cause to arrest the applicant if he had already been arrested by P.C. Keown.
31The Crown argued that P.C. Ho was an extremely unreliable witness and that I should reject his evidence and prefer instead the testimony of P.C. Keown. While I agree that there are shortcomings in P.C. Ho’s evidence, I do not find that he was an unreliable witness. I am certainly not prepared to fault him for failing to note an arrest which did not occur.
32There is a significant body of circumstantial evidence which satisfies me that Mr. Zanganjori was not arrested by P.C. Keown on any charge at any time.
- There is no evidence that P.C. Keown noted arresting the applicant.
- There is no reference to an arrest in the ICAD report.
- No other officer was aware of an arrest having taken place including the officer who was actually guarding Mr. Zanganjori.
- There is simply no reason why P.C. Ho would have continued to guard Mr. Zanganjori on the patio of the bar if he had been arrested and could have been taken to the station.
33P.C. Keown never explained how locating the applicant’s vehicle elevated his suspicions to reasonable grounds to make an arrest. The Crown argues that P.C. Keown’s grounds were not fully probed at the preliminary inquiry and if he had been asked, he might have referred to additional information that he received in relation to the car. The Crown was unable to produce P.C. Keown as a witness. This application can only be decided on the evidence which was adduced, not what might have been.
The Law
Section 10 of the Charter
34Based on these factual findings, I am guardedly satisfied that there was no violation of sections 10(a) or 10(b) of the Charter. The applicant was advised that he was being detained in regards to the investigation of a gun call. He was promptly advised of his rights to counsel regarding that detention and for reasons known only to himself, he declined to reply.
Section 8 of the Charter
35The applicant argues that his rights under section 8 of the Charter were offended in three respects. There is merit to all three arguments.
i. The Seizure of the Keys
36The power to search incident to an investigative detention must be founded on a reasonable belief that the officer’s safety or that of others is at risk. The search is therefore limited to weapons. (See R. v. Plummer, 2011 ONCA 350 at paragraphs 50-52.)
37P.C. Keown denied that he had removed the keys and wallet from the applicant’s pocket. I find that he did. If he removed the keys for safety reasons, there is no evidence of it. There was certainly no safety justification for seizing the applicant’s wallet. The seizures were not permissible incident to an investigative detention and violated section 8 of the Charter.
ii. The Use of the Keys
38A search incident to an investigative detention is undertaken in the absence of reasonable and probable grounds to believe that the detainee has committed an offence. Such searches cannot be used as a means of securing evidence to further the investigation of the suspect. (See R. v. Mann, 2004 SCC 52 at paragraph 37). Once he had removed the keys from the applicant’s pocket, P.C. Keown treated them as though they were evidence found in plain sight. His use of the car keys to find the applicant’s vehicle was an effort to further the investigation against the applicant using evidence which had been seized without lawful authority. This also breached section 8 of the Charter.
iii. Search Conducted in an Unreasonable Manner
39The power to search incident to an investigative detention must be executed in a reasonable manner. (R. v. Plummer, 2011 ONCA 350 at paragraph 48). On his own account of events, P.C. Keown responded to the applicant’s mild questioning of his authority to search by grabbing him and putting him in handcuffs.
40The applicant had offered no sign of resistance to P.C. Keown. At the time that he questioned the officer’s authority, Mr. Zanganjori was facing four armed police officers, one of whom was carrying an assault rifle. P.C. Keown had a reasonable suspicion that Mr. Zanganjori was in possession of a firearm and that justified taking physical control of him. Handcuffing him behind his back and leaving him in that position for 1½ hours was patently unreasonable. This also violated section 8 of the Charter.
iv. Conclusion Regarding Section 8 Violations
41Although I have found that the conduct of police violated the applicant’s section 8 rights in three respects, I prefer to decide the application based on the section 9 issue. The violations of section 8 which occurred in this case were minor in comparison to the breaches of section 9.
42There is no basis to find that P.C. Keown intended to use the car keys as evidence at the time that he seized them. The keys could possibly have been lawfully seized as potential weapons and the use of them to find the car did not have a serious impact on Mr. Zanganjori’s Charter protected interests. The fact that police subsequently obtained a search warrant for the car tends to lessen the seriousness of any breach. It is unlikely that the section 8 breaches would result in the exclusion of evidence.
43The section 9 breaches, on the other hand, were extremely serious and had a profound impact on the Charter protected interests of Mr. Zanganjori. They are the focus of this application.
Section 9
44The police had received a 911 call concerning a man having pulled a gun on a woman. The incident reportedly began at Finn McCool’s bar and the 911 caller said that the suspect had gone through the kitchen of the bar immediately prior to producing the gun. Mr. Zanganjori fit the general description of the suspect and he was found inside Finn McCool’s within minutes of the 911 call. I am satisfied that there was a clear connection between the accused and a crime which had just occurred. The police suspicions of the applicant were reasonable and P.C. Keown was acting in the exercise of his duty when he initially detained the applicant for investigation.
45In the 15 years since R. v. Mann, 2004 SCC 52 was decided, the common law has come to recognize the following limitations concerning the power to detain a suspect for investigation:
i. An investigative detention cannot become a de facto arrest. (R. v. Mann, 2004 SCC 52 at paragraph 35) ii. The detention cannot be used as an excuse to hold the suspect while police search for evidence which might justify an arrest. (R. v. McGuffie, 2016 ONCA 365 at paragraph 38) iii. An investigative detention must be brief in nature. It cannot be extended for as long as is necessary to conduct the investigation. The length of detention must be tailored to its investigative purpose and end when the interference with the suspect’s liberty becomes more intrusive than is reasonable necessary to serve that purpose. (R. v. McGuffie, 2016 ONCA 365 at paragraph 38 and R. v. Barclay, 2018 ONCA 114 at paragraphs 26-27)
46In addition to these clear statements of law, I would add that the handcuffing of a suspect during an investigative detention likely constitutes a violation of section 9. The British Columbia Court of Appeal made that finding in R. v. Ahmed-Kadir, 2015 BCCA 346. Justice Doherty averted to that conclusion in McGuffie but did not rely on it. Based on these decisions, I conclude that handcuffing during an investigative detention is an extraordinary step which can only be justified where: (1) an officer faces significant risks to his own safety or that of the public; and (2) those concerns can only be addressed by handcuffing the detainee. The handcuffing, like the detention itself, must be brief and must end the moment that the danger can reasonably be controlled by other means.
47P.C. Keown's detention of Mr. Zanganjori violated every cardinal element of a proper investigative detention. It was a high-risk arrest undertaken in the guise of a detention. P.C. Keown evidently had no appreciation for the limits of his authority to hold the applicant while he searched for evidence to justify an arrest. There is no basis to find that he tailored the length of the detention to take into account its highly intrusive nature, the relative simplicity of the underlying investigation or the fact that the investigation could have readily continued without the continued detention of Mr. Zanganjori. Any consideration of those factors would have militated in favor of the immediate removal of the handcuffs and very shortly thereafter, the release of Mr. Zanganjori. Once the police were in control of the scene and were satisfied that Mr. Zanganjori did not have a firearm on his person, their grounds to continue the detention were over.
48Mr. Graham, on behalf of the Crown, made the curious argument that the detention in handcuffs for over 1½ hours was necessary because the police could not be sure that the applicant was unarmed. Mr. Graham referred anecdotally to a case where a firearm went undetected during a pat-down search. He argued that police were justified in handcuffing Mr. Zanganjori throughout his detention to guard against that remote possibility. This submission runs contrary to the evidence of P.C. Keown, (who testified that he was satisfied that the applicant was unarmed after he had specifically searched his person for a firearm), and common sense.
49Mr. Graham alternatively argued that all of the officers’ actions were authorized under Section 117.02 of the Criminal Code. He submitted that the 911 call concerning a firearms offence constituted exigent circumstances which merited the search of Mr. Zanganjori, the seizure of his property and the use of that property to further the investigation against him. Mr. Graham goes so far as to submit that no warrant would have been required to search Mr. Zanganjori's vehicle.
50This submission overlooks the fact that P.C. Keown, on his own evidence, lacked subjective grounds to believe that the applicant had committed an offence. Mr. Graham argues that the police were mistaken in their interpretation of reasonable and probable grounds and they did in fact have grounds to arrest the applicant at the very outset of their investigation. That argument failed in R. v. Barclay, 2018 ONCA 114 and I would dismiss it for the same reasons here. (See R. v. Barclay, 2018 ONCA 114, paragraphs 24, 35.)
51I find that the applicant’s right not to be arbitrarily detained under section 9 of the Charter was breached in multiple respects.
Section 24(2)
52The applicant seeks an order “excluding all evidence seized from the applicant and his vehicle”. I take this to be a request to exclude any evidence relating to the car including its presence at the scene. Ms. Gadhia argues that the car would not have been located but for the unlawful seizure of the keys and hence, that aspect of P.C. Keown’s evidence should also be excluded. In her submission, if the applicant had not been arbitrarily detained, he would have been free to drive away from the scene and neither the car nor the BB gun would not have been discovered by police.
The seriousness of the Charter infringing state conduct
53This was an extremely serious breach of section 9. The applicant was held in a de facto arrest in a highly public location for over 1½ hours. As his detention continued long past the point of being reasonable, he was given no explanation for the reasons for the continuation of the detention or any indication as to when it might end.
54The suspension of the applicant’s liberty prevented him from leaving the scene and thus made him subject to further investigation by police.
55I find that the breach of the applicant’s rights was triggered by his questioning of the police authority to search. P.C. Keown acknowledged that he viewed the applicant’s questioning of his authority as “open defiance” and the officer acted upon that perception in a wholly unlawful manner. The animosity between Mr. Zanganjori and P.C. Keown was still apparent in the booking hall. The applicant complained that the handcuffs were uncomfortable and questioned why he was held so tightly by P.C. Keown. Those complaints were dismissed without inquiry by the attending staff sergeant. The applicant had been cuffed with his hands behind his back for over 2½ hours at that point.
The impact of the breach on the Charter protected interests of the accused
56The violation of the applicant’s section 9 rights had a direct impact on his Charter protected rights.
57The police were entitled to detain Mr. Zanganjori briefly. On the facts of this case, they could conduct a pat-down search for weapons and then maintain his detention while quickly searching the area to determine if a firearm had been hidden. If they had located his vehicle by permissible means, they might even have been able to prevent him from leaving in his car. They were not entitled to hold him indefinitely and that is exactly what they did.
58In addition to showing complete indifference to the applicant’s legal rights, the police demonstrated a startling disregard for his personal comfort. Mr. Zanganjori was guarded on the patio by an armed police officer. He had no criminal history and had offered no resistance to police. It is very difficult to understand how Mr. Zanganjori could have remained shackled for so long without a single police officer questioning the need for physical restraints.
59By their own admission, the police did not have grounds to arrest the applicant. Once the brief investigative detention was complete, he was entitled to leave the bar and drive home. The evidence at stake in this application would not have been discovered but for the violation of the applicant’s rights.
Society’s interest in an adjudication on the merits
60As I understand the Crown’s case, there is video evidence showing an individual approach the applicant’s vehicle and remove something from the trunk immediately prior to the alleged offences. The figure returns to the car shortly after events on the street, puts something back into the trunk and then goes off screen. A BB gun is subsequently found in the trunk.
61In this case, the societal interest in adjudicating the allegation on its merits will not be defeated by the exclusion of the BB gun. The Crown remains in a very strong position to identify the applicant as the individual who became involved in a disagreement with the complainants in Finn McCool’s. There is a strong circumstantial case that it was the accused who appears on the video removing something from the trunk of the car. The Crown’s case would be substantially stronger if the BB gun formed part of the evidence but its absence is far from fatal.
62I find that the administration of justice would be brought into disrepute by the admission of the evidence arising from the search of the car and accordingly, I exclude it.
63I come to a different conclusion concerning the seizure of the vehicle key from Mr. Zanganjori and the subsequent discovery of his car. The key was discovered in the course of a legitimate safety search and might reasonably have been seized as a potential weapon. The use of the key fob to locate the vehicle was minimally intrusive. The vehicle could have been discovered without the use of the keys either by canvassing cars parked near the bar or by following the applicant as he left the scene. To exclude this evidence would substantially diminish the value of the video surveillance evidence which was obtained without any violation of the applicant’s rights.
64Accordingly, the discovery of the keys and vehicle will be admitted at trial.
Post Script
65I have found as a fact that P.C. Keown seized the car keys from the applicant’s pocket rather than finding them on the table as he claimed. The trier of fact at trial may be presented with quite different evidence, particularly if P.C. Keown is called as a witness. Although it is entirely a matter for the trial judge to decide, I do not view my findings on this point as res judicata for the trial. Different evidence may well give rise to quite different factual conclusions.
Bawden J.
Released: June 5, 2019
COURT FILE NO.: CR 18/7-285 DATE: 20190605 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN Applicant – and – INDRIT ZAGANJORI Respondent
REASONS FOR JUDGMENT
BAWDEN J. Released: June 5, 2019