COURT FILE NO.: 17-A10196

DATE: 2019/10/01

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

Respondent

– and –

Hussein Deria

Applicant

James Cavanagh, for the Respondent

Leo Russomanno, for the Applicant

HEARD: September 9, 2019

RULING

LALIBERTE, J.

Introduction

[1] The accused, Hussein Deria, is charged with eight (8) Criminal Code offences all of which relate to the finding by the police of a loaded 9 mm firearm in the centre console of a vehicle illegally parked on City of Ottawa property in the early morning hours of September 24, 2016.

[2] The judge alone trial is set to proceed on December 16, 2019. The accused has brought a pre-trial Charter Application seeking the exclusion of all the evidence pursuant to s. 24(2) of the Charter on the basis of breaches of his s. 7, 8, 9 and 10(b) rights.

[3] The Crown opposes the Application and argues that the accused’s Charter rights were not infringed and if they were, the circumstances are such that the evidence should not be excluded.

[4] The issues to be decided by the Court in this Application are as follows:

1. Was the accused arbitrarily detained by the police officers?

2. Were his rights to silence and to counsel infringed by the police officers?

3. Did the officers breach his right against an unreasonable search and seizure when they entered the 2009 black Toyota Camry and seized the impugned firearm in the front centre console?

4. If the Court concludes that the evidence was obtained in a manner that infringed the accused’s rights, should the evidence be admitted at trial?

Facts

[5] There was no evidence called by either of the parties in this Application and the Court is asked to rely on the transcript of the testimonies given by Constable Dominic Paykarimah and Constable Jeffery Terlouw at the November 7, 2018 preliminary inquiry before Justice Loignon. The Court was also provided with Constable Paykarimah’s Investigative Action Report. The Court will briefly summarize this evidence.

[6] Constable Paykarimah testified that on September 24, 2016, he was dispatched to what he describes as more or less like a by-law call at the Lorry Greenberg Community Centre which is property owned by the City of Ottawa. The complaint was that people were blasting music and breaking bottles.

[7] His fellow officer Constable Terlouw arrived in a separate police vehicle at 4:03 A.M. He noted multiple individuals standing around three (3) vehicles, one of which was a 2009 black Toyota Camry. Two (2) males were seen walking away from the scene into the darkness.

[8] There were items on the ground including rolling paper, garbage and disposable cups with liquid and an odour of alcohol.

[9] He approached the males standing between two (2) of the vehicles and told them that this was City of Ottawa property and that police officers were acting as agents for the city. He also told them that it was late and there was no reason for them to be there. Some of the individuals admitted that they were drinking and smoking marijuana.

[10] The officer explained that he requested identification from everyone including the accused, Hussein Deria. He describes the individuals as being cooperative.

[11] He then observed a yellow pouch on the hood of the black Toyota Camry which had a very small quantity of what appeared to be marijuana. No one took ownership of this marijuana when he asked, and he just brushed it off on the ground.

[12] It appeared to him that everyone kept their distance from the black Toyota Camry as no one was willing to take ownership of this vehicle nor tell him who it belonged to.

[13] The accused would have told him that it belonged to a friend of his. The officer advised them that the car could not be left there and that it would have to be towed. The accused responded that he would get in contact with his friend and have him remove it.

[14] The officer testified that he gathered everyone’s identification and the police information revealed that everyone there was involved in guns, gangs and drug activities. Since they were only two (2) officers and six (6) of them, this became an officer safety issue as well.

[15] However, most were cooperative and not breaching anything. Everyone got into different vehicles and left. Prior to leaving, the individual Aden told him not to tow the black Toyota Camry as he would get his friend to come and get it in approximately half an hour.

[16] When asked by Crown counsel what he was thinking at that point, the officer stated the following:

“…Lots, to be honest with you…y’know, it’s the totality of really everything that I observed from the time – like, just prior to the time I arrived on scene, making the observations of the males walking away from us, and from experienced policing I know that people that don’t want to talk to us have typically something to hide…so they’re walking away from us. On that specific black Toyota Camry, they’re drinking – they admitted drinking, they admitted smoking marijuana. Everyone is one way or another are connected to guns and gangs, drugs, it’s a year where we have a lot of shootings. That night specifically there was a murder in the west end. It’s - y’know, it’s a public parking – public parking lot, City of Ottawa. They’re there after hours for no reason. Public safety concern for sure for individuals like this since, y’know...we have people breaking glass, kids playing, needles, stuff like that – so there was a lot happening…and no one had taken ownership of the vehicle and no one can tell you who…”

[17] He later stated the following with regard to the black Toyota Camry:

“…y’know, they kept their distance. They essentially abandoned the vehicle…and who abandons that vehicle when he wasn’t impaired? He could’ve easily driven that car out of there. Why abandon it? So it’s just the totality of everything that – y’know, doing this work for eight and a half years, at that point it was six years, y’know, you get that gut feeling, that suspicion that there’s a reason for this car – people wanting to avoid it, keep their distance from it. So this is all going through my mind and quite concerning to me at that time.”

[18] He then spoke to Constable Terlouw how everything was suspicious, that nothing was sitting right and that there had to be something in that vehicle. He then told the other officer that he was going to gain access to the vehicle.

[19] He wasn’t able to see inside the vehicle because the windows were tinted. The front passenger door was unlocked. He opened the door, kneeled on the passenger seat and lifted the centre armrest of the vehicle where he located the impugned 9 mm firearm which is the subject matter of these proceedings. The accused is the registered owner of the 2009 black Toyota Camry.

[20] The officer remained at the scene to guard the vehicle until being relieved at 7:15 A.M.

[21] Constable Terlouw echoes most of the information provided by Constable Paykarimah in his testimony. The Court notes the following points raised by Constable Terlouw:

• His main concern was making sure that the drivers of the vehicles were sober and that people would get home safe;

• His partner was trying to run people’s names and people were circling in around behind them; they were out-numbered; there were about 10 or 11 of them;

• It was kind of an officer safety nightmare as they were only two (2) in a back parking lot;

• He was just trying to keep the group where he could see everybody as they were looping back around him for no reason and this was “just really freakin him out”, “really makin him on edge”;

• He kept asking them to just hang out in front of them for now just until they could sort everything out and make sure everybody is good and get them on their way;

• The individuals seemed to distance themselves from the Toyota Camry and when he asked, no one could tell him who drove this vehicle; he found this odd;

• He overheard the accused tell Constable Paykarimah that he may know who owned the vehicle but he didn’t want to tell him the person’s name; and

• The officers kept explaining that all they wanted was for the vehicle to be removed, that they could not be in a park disturbing people; it was not a big deal and that if the person can come back and move the car, that is all the officers wanted to know; the accused told them he would get the person who owned the car.

[22] Constable Terlouw described the following events once the individuals had left the scene:

“We start - obviously it’s odd. We have to figure out what’s going on with this Camry. The Camry is checked through MTO and it was discovered that actually M. Deria was the registered owner of the Camry…We decide to look around the car for anything we mighta missed. Essentially this area is – it’s a bit of an odd area…a lot of like illegal things happen back in that parking lot because of how easy it is to access…it’s a known drug use area.”

[23] He was told by Constable Paykarimah that the passenger door was unlocked and he had seen a replica firearm in the centre console of the vehicle and was pretty sure it was real.

[24] Wanting to see if it was a real firearm, he tried to enter the vehicle through the driver’s side door but it was locked. He entered through the passenger door, opened the centre console and saw the firearm.

[25] In cross-examination, the officer maintains that this remained a simple by-law call notwithstanding his officer safety concerns. His purpose was to ensure the drivers were sober and making sure everybody got home safe. He was not directing their movements but simply telling them not to go behind him because he didn’t know what was going on at that time.

Position of the Parties

Accused (Applicant)

[26] The accused’s position is that all evidence seized by the police from him prior to and during the search of the black Toyota Camry should be excluded under s. 24(2) of the Charter by reason of breaches to his ss. 7, 8, 9 and 10(b) Charter rights.

[27] His position can be summarized as follows:

• While the officers were justified in briefly detaining the individuals for the sole purpose of ensuring the sobriety of the drivers, the evidence suggests that the true purpose was to gather information about a potential offence. It is noted that there were no sobriety checks nor any roadside screening devices administered to the drivers. They were questioned on matters unrelated to sobriety. The police used this as a pretext to investigate;

• The accused and other individuals were asked many questions while on the scene and after running their names on his computer. One officer directed the group’s movements by instructing them not to go behind him. These facts are supportive of detention;

• None of these individuals could be connected to a particular crime which could have justified a brief investigative detention based on reasonable suspicion. Therefore, there were no grounds to detain the accused for investigative purposes. He was therefore arbitrarily detained in breach of his s. 9 Charter right;

• The police officers obtained incriminating evidence from the accused while he was arbitrarily detained. He was asked questions without proper caution and without being provided with his right to counsel;

• The Court is asked to consider the fact that the accused is part of a racial minority and how this impacts on the accused’s belief that he cannot walk away; this goes to psychological detention; as a member of the black minority, he would feel compel to remain and answer questions from the police;

• The police failed to hold off on eliciting incriminating evidence from the accused until he was told of his right to counsel. It is noted that he was asked his name, which he gave and that this led to a connection to guns and gangs. This is information that was ultimately used to form grounds for the search of the vehicle. He was also asked who the vehicle belonged to which was answered in the absence of a caution or right to counsel. His answer in turn contributed to the grounds for the said search;

• Asking these questions of the accused without a caution that he need not answer and being given his right to counsel were violations of his ss. 7, 10(b) Charter rights;

• With regard to the search of the vehicle, the accused maintains that he had a reasonable expectation of privacy in this vehicle and as such, the police action amounted to a search. He notes that he was the registered owner and that the driver-side door was locked. He denies having abandoned the vehicle. In fact, he told the officers that someone would be back to move it and Aden asked the police not to have it towed because it would be moved in half an hour. Furthermore, the police knew that the accused was the registered owner prior to the search;

• As the search was not authorized by law, it remains unreasonable. There is no statutory or common law police powers authorizing the search in this matter. The following possible powers to search are said not to be supported by the evidence:

• The power to search incident to investigative detention;

• There were no serious public safety concerns; and

• There were no exigent circumstances.

• The more likely inference to draw regarding this search is that it was a fishing expedition conducted for the purpose of gathering evidence. It was therefore a blatant breach of the accused’s right to be free from unreasonable search and seizure;

• A balancing of the three-prong considerations set out by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, is such that the admission of the evidence would bring the administration of justice into disrepute;

• The breaches of the police officers were serious in nature. They breached the accused’s rights guaranteed under multiple sections of the Charter. They showed to be indifferent to his rights. The officers acted on a hunch. The law relating to searches is well established and the police action reveals extreme negligence and/or willful disregard of Charter rights. The Court must distance itself from such state action;

• While there is a reduced expectation of privacy in a vehicle as compared to a private dwelling, a person’s expectation of privacy in their vehicle is high. The accused could not have expected that the police would intrude on his privacy. The s. 8 Charter breach had a serious impact on his privacy interests. There was no justification for this intrusion;

• It is acknowledged that the reliability of the evidence, its importance to the Crown’s case and the seriousness of the alleged offence, would favour admission and reflective of society’s interest in the adjudication of the case on its merits. However, the Court is reminded of the following:

• The seriousness of the alleged offence has the potential to cut both ways as there is a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high;

• It is the long-term repute of the justice system that is s. 24(2)’s focus;

• The first two Grant inquiries work in tandem and both pull toward exclusion;

• It is argued that the Charter breaches in this matter are so blatant and the impact is so significant that the public interest in hearing the case on its merits cannot outweigh those considerations.

Crown (Respondent)

[28] The Crown’s view is that none of the accused’s Charter rights were infringed as alleged by him. He was not detained and therefore the police had no duty to provide him with rights to counsel. While the search of the vehicle was made without a warrant, it was authorized by law and therefore, reasonable. In the alternative, if the Court finds breaches, the circumstances do not warrant exclusion of the evidence.

[29] Crown counsel raises the following points in support of his position:

• The accused was never detained by the police officers as contemplated under s. 9 of the Charter. This was a by-law call in response to a noise complaint and remained so throughout. Directing people to leave an area is the exact opposite of a detention. There was no criminal investigation that took place. All of the individuals were questioned and there was no focus on the accused. Asking questions to members of a group, as to whose property is present, does not amount to a detention.

• The Court is reminded that not all contacts with the police result in detention. There needs to be significant physical or psychological restraint. This was not race related and the accused is described as streetwise and chose to mislead the officers;

• The accused was not compelled to answer the officer’s questions;

• As the accused was never detained by the police, there was no obligation to provide him with his right to counsel;

• The accused cannot claim a breach of his s. 8 Charter right against an unreasonable search since he had no reasonable expectation of privacy in the vehicle. The essence of the Crown’s argument on this issue is that the accused abandoned the vehicle. The following points are raised:

• It was left trespassing on city property after hours;

• He lied to the police about who his car belonged to;

• He left the place where it was parked and chose to distance himself from it;

• The car was unlocked;

• He left the car with the police after being told it would be towed;

• The accused’s conduct in intentionally distancing himself from his vehicle makes it such that he has precluded himself from relying on the s. 8 Charter protection;

• The police had the authority to search the vehicle pursuant to their duty to protect the public. Counsel points to the following in support of the argument that the police officers were acting to preserve the peace and prevent crime;

• The vehicle was located on city property, near a residential area, a pedestrian pathway, a much-used community centre and a children play structure;

• A number of these individuals had ties to guns, gangs and drug activities; they were near the vehicle;

• The individuals were distancing themselves from a vehicle they had gathered around;

• A pouch with remnants of marijuana was seen on the hood of the vehicle;

• The accused made vague claims of knowing who the owner was but then left the area;

• The vehicle was unlocked; and

• It was shortly after 4:03 A.M.;

• The authority to search was also grounded on the fact that the police officers were acting as agents of the City of Ottawa and had the authority to tow the abandoned car, under s. 170(15) of the Highway Traffic Act and s. 109 of the City of Ottawa, Traffic and Parking by-law. This authority to tow the vehicle vested them with the authority to proceed to search it before and after the tow;

• If the Court finds a breach of the accused’s Charter rights, the crown submits that this is a clear case for admission of the evidence. The three (3) factors set out in Grant favour admission;

• Firstly, this was not a serious breach since:

• The police had the authority to seize and tow any vehicle illegally left on city property;

• The police told them the vehicle would be towed;

• The officer entered the car because of all the circumstances which gave him concern that something was not right;

• The officers had no subjective belief they were infringing Charter rights;

• The officers acted in good faith;

• There is no significant impact on the accused’s Charter rights:

• He was not forced to self-incriminate;

• No infringement of bodily integrity;

• There is diminished expectation of privacy in a motor vehicle;

• The accused chose to lie about ownership, park illegally on city property and leave knowing it would be towed;

• There is an extremely high society interest in adjudication on the merits given that this is a loaded firearm. Reference is made to the recent Supreme Court of Canada’s endorsement of Justice Brown’s dissent in R. v. Omar, 2018 ONCA 975, [2018] O.J. No. 6346, which is said to bolster the third factor in Grant when dealing with illegal handguns. Justice Brown stated the following at para. 138 of his dissent in R. v. Omar:

“[138] It is of course a matter of balance under s. 24(2). But the balance necessary to offer Canadians a peaceful community in which to live it not achieved by neutering the third Grant factor and treating illegal handguns as fungible with any other kind of evidence for the purposes of a s. 24(2) analysis.”

• The Crown notes that without this evidence the crown’s case must fail, the firearm is an inherently reliable and objective item of evidence and that the accused can still raise a reasonable doubt about possession.

The Law

[30] In deciding this matter, the Court is guided by the following principles:

− Section 9 of the Charter: Everyone has the right not to be arbitrarily detained or imprisoned;

− The burden is on an accused person to establish, on a balance of probabilities, that he or she was detained by the police. If there was a detention, the Crown has the burden to prove, on a balance of probabilities, that the detention was not arbitrary;

− “…the police cannot be said to “detain”, within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be “detained” in the sense of “delayed” or “kept waiting”. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that invoke no significant physical or psychological restraint”;

R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, para 19

“1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply;

2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she has been deprived by the state of the liberty of choice, the Court may consider, inter alia, the following factors:

• The circumstances giving rise to the encounter as they would reasonably be perceived by the individual; whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or singling out the individual for focussed investigation;

• The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter;

• The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication”;

R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, para 44

− “… the meaning of “detention” can only be determined by adopting a purposive approach that neither overshoots nor impoverishes the protection intended by the Charter right in question. It necessitates striking a balance between society’s interest in effective policing and the detainee’s interest in robust Charter rights. To simply assume that a detention occurs every time a person is delayed from going on his or her way because of the police accosting him or her during the course of an investigation without considering whether or not the interaction involved a significant deprivation of liberty would overshoot the purpose of the Charter.”

R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, para 24

− “…while many police-citizen encounters are relatively innocuous… involving nothing more than passing conversation, such exchanges may become more invasive when consent and conversation are replaced by coercion and interrogation…In determining when this line is crossed (i.e. the point of detention, for the purposes of ss. 9 and 10 of the Charter), it is essential to consider all of the circumstances of the police encounter. Section 9 requires an assessment of the encounter as a whole and not a frame-by-frame dissection as the encounter unfolds…”

R. v. Le, 2019 SCC 34, [2019] S.C.J. No 34, para 27

− “At the detention stage of the analysis, the question is how a reasonable person of a similar background would perceive the interaction with the police. The focus is on how the combination of a racialized context and minority status would affect the perception of a reasonable person in the shoes of the accused as to whether they were free to leave or compelled to remain. The s. 9 detention analysis is thus contextual in nature and involves a wide-ranging inquiry. It takes into consideration the larger, historic and social context of race relations between the police and the various racial groups and individuals in our society. The reasonable person in Mr. Le’s shoes is presumed to be aware of this broader racial context.”

R. v. Le, op. cit., para 75

− … The focus of the s. 9 analysis should not, therefore, be on what was in the accused’s mind at a particular moment in time, but rather on how the police behaved and, considering the totality of the circumstances, how such behaviour would be reasonably perceived…

R. v. Le, op. cit., para 116

− “Where a detention is established, a court must consider whether the detention is arbitrary. This Court’s decision in Grant provides guidance…drawing from the three-part test stated in R. v. Collins, for assessing unreasonable searches and seizures under s. 8. Specifically, the detention must be authorized by law; the authorizing law itself must not be arbitrary; and the manner in which the detention is carried out must be reasonable…”;

R. v. Le, op. cit., para 124

− “…police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual.”

R. v. Mann, op. cit., para 45

Right to Silence

− Section 7 of the Charter: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice;

− “If the measure of a fundamental principle of justice under s.7 is to be found, at least in part, in the underlying themes common to the various rules related to it, then the measure of the right to silence may be postulated to reside in the notion that a person whose liberty is placed in jeopardy by the criminal process cannot be required to give evidence against himself or herself, but rather has the right to choose whether to speak or to remain silent.”

R. v. Hebert, [1990] 2 S.C.R. 151, para 47

Right to Counsel

− Section 10(b) of the Charter: Everyone has the right on arrest or detention……(b) to retain and instruct counsel without delay and be informed of that right;

− “ The purpose of the right to counsel guaranteed by s. 10(b) of the Charter is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfil those obligations…This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him or herself. Accordingly, a person who is “detained” within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination…”

R. v. Bartle, [1994] 3 S.C.R. 173, para 16

Right Against Unreasonable Search or Seizure

− Section 8 of the Charter: Everyone has the right to be secure against unreasonable search or seizure;

− In R. v. Edwards, [1996] 1 S.C.R. 128, para 45, the Supreme Court of Canada set out the following framework with regard to a s. 8 analysis:

“ 1. A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed.

2. Like all Charter rights, s. 8 is a personal right. It protects people and not places.

3. The right to challenge the legality of a search depends upon the accused establishing that this personal rights to privacy have been violated.

4. As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation of privacy. Second, if he has such an expectation, was the search by the police conducted reasonably.

5. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances.

6. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following:

i. Presence at the time of the search;

ii. Possession or control of the property or place searched;

iii. Ownership of the property or place;

iv. Historical use of the property or item;

v. The ability to regulate access, including the right to admit or exclude others from the place;

vi. The existence of a subjective expectation of privacy; and

vii. The objective reasonableness of the expectation.

7. If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determine whether the search was conducted in a reasonable manner.”

• Although there remains an expectation of privacy in an automobile, it is markedly decreased.

R. v. Belnavis [1997] 35 S.C.R. 341, para 38

• Once the accused person establishes on a balance of probabilities that there was a warrantless search, the burden rests on the Crown of showing, on a balance of probabilities, that the search was reasonable. The Crown can rebut the presumption of unreasonableness by establishing that:

1. the search is authorized by law;

2. the law itself is reasonable; and

3. the manner in which the search was carried out is reasonable;

R. v. Collins, [1997] 1 S.C.R. 265

• The general duty of officers to protect life may in some circumstances, give the power to search. However, the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. The decision to search must also be necessary in light of the totality of the circumstances. Such a search cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition.

R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59.

R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37.

• A police officer who is removing and impounding a vehicle pursuant to a statutory authorization has a duty to take steps to safeguard the vehicle and its contents. As such, the officer is authorized to enter the vehicle to perform an inventory search meaning “cataloguing the visible and apparently valuable contents.”

R. v. Nicolosi [1998], O.J. No 2554

Charter Remedy: Exclusion of Evidence

• Section 24(2) of the Charter: Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

• “Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.”

R. v. Grant, op. cit., para 69

• “When faced with an application for exclusion under s. 24(2), a court must access and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter infringed state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter- protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.”

R. v. Grant, op. cit., para 74

Discussion

[31] Dealing first with the issue of detention, the Court finds that the accused has not established, on a balance of probabilities, that he was detained by the police during his early morning encounter of September 24, 2016, at the Lorry Greenberg Community Center. The evidence does not reveal that his interaction with the officers involved a significant deprivation of his liberty. Looking at this police encounter as a whole, the Court’s view is that it did not cross the line to the point of detention as it is understood under ss. 9-10 of the Charter.

[32] Firstly, the evidence does not establish that the officers exercised any degree of physical control over the accused. His freedom to move was not curtailed in any significant way by the police. So that clearly, there was no physical detention. The Court notes the following in support of this finding:

− The police encounter was not triggered by the police stopping him; he was found in a location where he had chosen to be in the early morning hours in a public area; there is no evidence to contradict or challenge the testimony of both officers that they were responding to a noise complaint on city property;

− The accused was never physically touched by the officers; there is no suggestion that they came close to him;

− He was never told not to move or directed to do or obtain from doing anything;

− He was never directed to remain at the scene; in fact, he was told to leave even after receipt of information that he may have connections to guns, gangs and drugs;

− The fact that Constable Terlouw told the group not to go behind them and remain where they could be seen is not a significant deprivation of their liberty; there was a basis for concerns for officer safety; furthermore, these words were directed at the group and not specifically at the accused;

− The accused ultimately left the scene as directed with the others and did so without any resistance from the officers;

− Being asked for identification and whether he had knowledge as to who owned the vehicle, does not, in the whole of the circumstances, amount to detention; as noted by the Ontario Court of Appeal in R. v. L.B., 2007 ONCA 596, at para. 56:

“[56] … The fact that the police may have reasonable grounds to detain someone does not mean that detention will automatically occur when the police approach and start talking to that person; the same holds true when the police do not have reasonable grounds to detain. To repeat, we have not yet reached the point that compulsion to comply will be inferred whenever a police officer requests information. That was made clear by Iacobucci J. in R. v. Mann…“

[33] Secondly, there was no obligation on the accused to comply and respond to the officer’s limited questions. As such, detention cannot be predicated on a legal obligation to comply failing which he was subject to legal sanctions.

[34] Lastly on this issue, the Court finds that the evidence does not, on a balance of probabilities, establish an objective basis to support psychological detention. It is more probable than not that a reasonable person in the accused’s circumstances would not have concluded that he had been deprived by the police officers of the liberty of choice.

[35] This finding is based on the following considerations:

− The circumstances giving rise to his encounter with the police would not be perceived by a reasonable person as curtailing his liberty:

i. The police were responding to a noise complaint and their purpose in attending this location was clearly communicated to all the individuals present, including the accused;

ii. They were directed to leave the area because of the noise, the alcohol and the time of day; and

iii. The accused could not reasonably believe that the police action was directed at him as oppose to all the individuals who were present; he was never singled out;

− The nature of the police conduct does not provide an objective basis for psychological detention:

i. He was never physically touched by the police;

ii. The questions were limited to his identity and the ownership of the motor vehicle; there was no interrogation even after the police discovered his connection to guns, gangs and drugs according to police information;

iii. He was questioned in the location where he was first seen by the police;

iv. There were other individuals present throughout the encounter;

v. All of these individuals were told to leave;

vi. There is no suggestion that the officers were forceful in how they communicated with the accused and the others;

vii. The total encounter would have been significantly less than 20 minutes, since the police arrived at 4:03 A.M. and found the firearm at 4:24 A.M. according to Constable Paykarimah; there is no indication of how long the individuals had been gone prior to the search;

viii. There is no suggestion that the officers would have focused more on the accused than the others during the encounter; and

ix. The evidence is that the police saw three (3) individuals leave the area when they arrived and did nothing to stop them from leaving; it is very likely that the accused would have seen this; a reasonable person in such circumstances who observes the police doing nothing to stop individuals from the same group leaving the scene would likely believe that he was also free to leave and that the police would not intervene; this belief would be reinforced by being told to leave soon thereafter;

− The accused did not testify in this Application and the Court is provided with very limited information with regard to his particular characteristics or personal circumstances which could objectively support psychological detention:

i. The police report shows that he was born on October 20, 1992; he was therefore a young adult soon to be 24 at the time of the encounter; without more, nothing turns on his age;

ii. There is no means for the Court to assess his level of sophistication;

iii. The Court has no information with regard to his physical stature other than having seen him sitting in the courtroom during the hearing of this Application;

iv. The fact that he is a member of the black minority would likely support the notion of psychological detention; it is reasonable to find that this factor would probably lead a reasonable person to believe that he must abide by police directions; however, the police did very little in terms of directing his actions;

v. The fact that he chose to mislead the police as to the ownership of the motor vehicle would suggest that he subjectively maintained a level of control in his dealings with the police officers during the encounter;

vi. While the extent of his connection is unknown by the Court, the undisputed evidence is that he is somehow connected to guns, gangs and drugs; this usually entails certain level of prior involvement with the police;

[36] So that as already noted, the Court finds that the accused has not established that he was detained by the police.

[37] The finding makes it such that the police did not have the obligation to inform him of his rights to retain and instruct counsel without delay pursuant to s. 10(b) of the Charter. Nor did they have to caution him on his right to remain silent as provided for under s. 7 of the Charter.

[38] Therefore, the Court finds that the police officers did not breach the accused’s ss. 7, 9, 10(b) Charter rights.

[39] With regard to the search of the motor vehicle, the Court finds that in doing so, the police infringed the accused’s s. 8 Charter right to be secure against unreasonable search and seizure.

[40] While the accused’s personal right to privacy in connection with the motor vehicle was somewhat diminished, the totality of the circumstances support the existence of a reasonable expectation of privacy. The Court notes the following:

− Albeit illegally parked by reason of the time of day, the vehicle was in a public area;

− He was the registered owner of the vehicle;

− He was in close proximity of the vehicle when the police arrived at the scene;

− There is a reasonable inference that he was in control of the vehicle at the relevant time;

− The driver-side door of the vehicle was locked;

− While he denied being the owner, he stated that he would get in contact with his friend who owned the car and have him remove it; the individual Aden told the officer while leaving not to tow the vehicle as he would get his friend to come and get it in approximately half and hour;

− The totality of the circumstances are such that the accused is not found to have abandoned his vehicle.

[41] The accused having established a reasonable expectation of privacy in the vehicle, the inquiry becomes whether the search was conducted in a reasonable matter. Since this was a warrantless search, it is presumed to be unreasonable unless established otherwise by the Crown on a balance of probabilities.

[42] The Court is of the view that the Crown has not shown that the search was authorized by law and therefore, has not rebutted the presumption of unreasonableness which stems from a warrantless search.

[43] This conclusion is based on the following considerations:

− The Court rejects the suggestion that this was part of a lawful inventory search; the officer’s evidence makes it clear that he did not enter and search the vehicle in order to complete an inventory search of the items found inside the vehicle which is authorized when a vehicle is impounded by the authorities; his unequivocal stated purpose was to gain access inside the vehicle since the circumstances were highly suspicious and there had to be something in that vehicle and he needed to gain entry to find out what it was; it is also noted that the officers did not take any steps to have the vehicle towed prior to the search;

− The Court also rejects the notion that the search was authorized as part of the officer’s general duty to protect life; while the circumstances noted by him in his testimony were suspicious, the law requires more; the belief must be based on reasonable grounds that the officer and/or the public is at risk; the totality of the circumstances must be such that the search is necessary by reason of the reasonably based fear for safety; the reasons provided by the officer do not meet this threshold; he referred to “everything being suspicious”, his “experienced policing” and how “you get that gut feeling, that suspicion”; as noted earlier, a search based on public safety cannot be premised on “hunches” or “mere intuition”.

[44] Therefore, the Court finds that the police breached the accused’s s. 8 Charter right against unreasonable search and seizure when his vehicle was searched.

[45] The last question for the Court is whether the evidence of the finding of the loaded firearm inside the console should be admitted at trial.

[46] Having considered all of the circumstances and the relevant principles, the Court finds that the admission of the impugned evidence would not bring the administration of justice into disrepute. Its admission would not, on a balance of probabilities, negatively impact on society’s confidence in the justice system.

[47] This finding is based on the following Grant analysis:

i) The seriousness of the Charter-infringing state conduct

[48] The Court agrees with the proposition that the warrantless search of a motor vehicle is a serious Charter infringing state conduct which favours exclusion of evidence found in the course of such unauthorized search.

[49] While the evidence does not support the proposition that the officer acted deliberately and willfully with knowledge that he was breaching a Charter protected right, in the end, he should have known that the basis upon which he was operating (i.e. “suspicion” “gut feeling”) did not provide him with the lawful authority to search. The reasonable expectation is that this would have been known to him.

[50] The officer’s conduct is not seen as being at the most serious end of the “scale of culpability.” The search is not found to be of the magnitude argued by counsel for the accused. The Court rejects the suggestion that the search was the result of the cumulation of distinct Charter breaches to ss. 7, 9, 10(b).

[51] The seriousness of the police conduct is found to be tempered by the following:

− While not amounting to reasonable grounds, there was a basis to support the officer’s concerns, namely the vehicle being found in a location known for criminal activity, the individuals physically distancing themselves from the vehicle, no one claiming ownership of the vehicle and all of the individuals who were identified were somehow connected to guns, gangs and drugs;

− The vehicle was illegally parked in the early morning hours;

− The accused had been warned that the vehicle would be removed; and

− The vehicle was left in the care of the police by the owner who denied ownership.

ii) the impact of the breach of the Charter-protected interests of the accused

[52] The totality of the circumstances are such that the police conduct minimally undermined the accused’s right to privacy. As noted in these reasons, the accused’s reasonable expectation of privacy was diminished having regard to the following:

− He physically distanced himself from the vehicle;

− He denied ownership and left;

− He left the vehicle in the care and custody of the police in a public area having been warned by the police that it would be towed away;

− The passenger side door was left unlocked;

[53] He did not return to the scene to get his vehicle;

iii) Society’s interest in the adjudication of the case on its merits

[54] The Court is of the view that there is a strong public interest in having this matter adjudicated on its merits based on the following:

• The finding of the loaded firearm is relevant and highly reliable;

• It is also critical to the Crown’s case;

• It is not determinative as there remains an issue of possession of the firearm;

• The offences charged are serious in nature; the Court is mindful that the seriousness of the offence must not take a disproportionate significance as the penal stakes for an accused are high in such cases; and

• The first and second line of the 24(2) Charter inquiry in this matter do not, taken individually and together, make a strong case for exclusion; in such light, the third prong confirms that the administration of justice would not be brought into dispute by admitting the impugned evidence.

Conclusion

[55] The accused’s Charter Application seeking the exclusion of evidence is therefore dismissed for the reasons set out in this Ruling.

The Honourable Justice R. Laliberte

Released: October 1, 2019

COURT FILE NO.: 17-A10196

DATE: 2019/10/01

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

Respondent

– and –

Hussein Deria

Applicant

RULING

Laliberte, J.

Released: October 1, 2019