COURT FILE NO.: CRIMJ(F) 1518/19

DATE: 20200302

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

MIKAEL SINGH AND JAMESON YOUNG

Applicants

Marten Dykstra, for the Crown, Respondent

Paula Seymour for the Applicant, Mikael Singh

Stacey Alexander Taraniuk for the Applicant, Jameson Young

HEARD: September 17, 18, 19, 24, 25, 26, 27, November 1, 14, December 6, 2019

RULING ON APPLICATION TO EXCLUDE EVIDENCE

PURSUANT TO SS. 8, 9, 10(b) AND 24(2) OF THE CHARTER

J.M. Woollcombe J.

Introduction

[1] The applicants, Mikael Singh and Jameson Young, are before the court on a 23-count indictment. Their trial is scheduled for May 19, 2020.

[2] Charges against the applicants, as well as against Jahmari Bernard, followed an investigation that began from an informant tip that Mr. Bernard was trafficking in narcotics. Surveillance was conducted on Mr. Bernard, which led police to identifying Mikael Singh as another possible target. On August 15, 2017, Mr. Bernard and Mr. Singh were arrested in the underground parking lot of 510 Curran Place. They were jointly charged with 6 counts under the Controlled Drugs and Substances Act (“CDSA”)

[3] Following the arrest, the police obtained information connecting Mr. Singh to unit 2502 at 510 Curran Place (the “Curran Place unit”) . While they awaited the issuance of a search warrant for that unit, police entered it to “freeze” it. There, they located Jameson Young, Mr. Singh’s half brother, who was permitted to leave the unit. Later that night, the police obtained and executed a number of search warrants, including one for the Curran Place unit. Execution of the search warrant at the Curran Place unit led to the discovery of narcotics and guns. As a result, Mr. Singh and Mr. Jameson were charged jointly with 17 offences relating to the guns and drugs.

[4] The applicants, along with Mr. Bernard, brought an application under the Charter alleging multiple breaches of their rights. During the course of that application, the Crown stayed all charges against Mr. Bernard, leaving Mr. Singh and Mr. Young before the court.

[5] It is the applicants’ position that:

a) the police lacked reasonable and probable grounds for the arrest of Mr. Bernard and Mr. Singh, and thus that Mr. Singh’s detention was in violation of s. 9 of the Charter;

b) the police exceeded the scope of their authority when, following the arrest, they searched the Jeep in which Mr. Bernard and Mr. Singh had been travelling, resulting in a breach of s. 8 of the Charter;

c) the manner in which the police searched Mr. Singh breached his s. 8 Charter rights;

d) Mr. Singh was not advised of his rights to counsel upon his arrest, resulting in a violation of s. 10(b) of the Charter;

e) the search of the Curran Place unit breached both applicants’ rights under s. 8 of the Charter. First, it is alleged that the police entered the unit to freeze it without a warrant and without exigent circumstances. Second, it is alleged that the Information to Obtain (ITO) the search warrant at the Curran Place unit does not reveal sufficient grounds to support the issuance of the search warrant and that the search warrant should not have been granted.

[6] As a remedy, Mr. Singh seeks the exclusion of all evidence found in the vehicle and all evidence seized in the Curran Place unit. He also seeks exclusion of his statement to police.

[7] Mr. Young seeks the exclusion of the evidence located at the Curran Place unit.

[8] I heard these pre-trial applications as the case management judge and am not seized with or scheduled to preside over the trial.

[9] On the application, evidence was adduced from Constable Houlihan, the officer in charge of the investigation, as well as Constable Andrews, who conducted surveillance on August 14 and 15, 2017 and was involved in the arrests of Mr. Bernard and Mr. Singh. In addition, on consent, the transcripts of the evidence from the preliminary inquiry of Constables Lontoc, Orr, and O’Connor were filed and agreed to be their evidence for the application. Finally, Mr. Singh testified.

The Issues to be Decided

[10] The following issues must be determined:

a) Did the police have reasonable and probable grounds to arrest Mr. Singh?

b) Were the police authorised to search the Jeep incident to the arrest?

c) Was there a violation of Mr. Singh’s s. 8 right because of the manner in which he was searched?

d) Was there a violation of Mr. Singh’s right to counsel?

e) Was there a violation of s. 8 because of the entry into the Curran Place unit prior to the issuance of the search warrant?

f) Was there a basis for the issuance of the search warrant at the Curran Place unit?

g) If there were Charter breaches, what is the appropriate remedy?

[11] Resolution of each of these issues depends largely on the facts as I find them to be. The legal principles are really not disputed. There was lengthy and detailed evidence adduced on the application. There are significant divergences between the evidence of the police officers and the evidence of Mr. Singh respecting the police surveillance and his arrest.

[12] The applicants submit that Mr. Singh was credible and reliable and that his evidence should be preferred over the evidence of the officers. They say that the officers were not credible.

[13] The Crown submits that Mr. Singh’s evidence was not believable and points to a number of aspects of his evidence where they say his version of events was not credible. The Crown says that while there may be some difficulties with the evidence of the officers, they are believable. Ultimately, the Crown says that the applicants have not met their onus of proving the various alleged Charter violations.

[14] In terms of the search of the Curran Place unit, there is a significant dispute about the ITO. The applicants say it was inaccurate and misleading and that once the inaccurate information is excised, it could not properly have been issued. While the Crown concedes that there were some errors in the ITO, the Crown’s position is that there was a proper basis for the warrant to issue for the Curran Place unit.

[15] I have addressed each of the seven significant issues raised by summarizing the legal principles, setting out the relevant evidence, indicating my factual and credibility findings and assessing whether the Charter violation has been established.

a) Did the police have reasonable and probable grounds to arrest Mr. Singh?

[16] There is no dispute respecting the applicable legal principles.

[17] Section 495(1) of the Criminal Code authorizes a peace officer to arrest without warrant a person who, on reasonable grounds, he believes has committed or is committing an indictable offence. The officer must subjectively believe that he or she has reasonable grounds for the arrest and the grounds must be objectively reasonable, as assessed from the perspective of a reasonable person standing in the shoes of the police officer with comparable experience to that of the arresting officer: R. v. Storey, 1990 125 (SCC), [1990] 1 S.C.R. 241 at pp. 249-250. It is for the Crown to establish, on a balance of probabilities, that the officer had reasonable grounds for an arrest.

[18] In R. v. Anang, 2016 ONCA 825 at para. 22, the Court of Appeal emphasized the importance of assessing the particular facts in a case to determine whether there were objective grounds:

Each case falls to be determined on its own facts, however. In our view, determining whether there were objective grounds for an arrest is not a mathematical exercise involving the counting of the number of surveillance incidents (although more presumably makes the case stronger). Rather it is the nature of the information derived from the surveillance, taken in the context of the totality of the circumstances and weighed through the perspective of the experience of the arresting officer that informs the decision. The trial judge in Dezainde himself noted that "at some point (and I need not determine where) in the eight stops found in the truncated summary, any thought of innocent coincidence disappears. A pattern of conduct emerges." (para. 144).

[19] I will now review the evidence leading up to the arrest.

i) Information police received about Mr. Bernard

[20] In June 2017, Constable Houlihan, a member of the Peel Regional Police Services Street Crime Unit, received information from Constable Malonowich that Jahmari Bernard, with whom he was familiar, was actively trafficking in drugs in Peel. He was also told that Mr. Bernard was using a silver coloured SUV. The officer received some additional information that came from a confidential source. That information has not been disclosed and is not relied upon by the Crown to support the arrest. As a result of receiving this information, police commenced an investigation.

ii) Initial police investigation into Mr. Bernard (June - August 9, 2017)

[21] The police investigation into Mr. Bernard began on June 29, 2017. Constable Houlihan went to 235 Forum Place, unit 97, which he believed was Mr. Bernard’s address. He saw a silver coloured Jeep with plate BXNC686 in the driveway. At 11:16 a.m., Mr. Bernard exited unit 97, removed headphones and a charger from the Jeep, and went back inside. Constable Houlihan said that he recognized him. There was nothing suspicious or indicative of criminal activity about this.

[22] Constable O’Connor’s evidence at the preliminary inquiry, filed on this application, was that on July 4, 2017, he saw a silver Jeep with license plate XNC686 engage in what he believed was a hand to hand drug transaction with a person in an Acura.

[23] The next step in the investigation took place early on July 5, 2017. Constable Houlihan testified that Constable O’Connor told him that on July 4, 2017, he had seen what he believed was a drug transaction between the occupant of an Acura and two black men in a silver Jeep, whom he did not describe, in the Acorn Place area.

[24] Under cross-examination, Constable Houlihan described this as a “conversation in passing” with Constable O’Connor. He did say that he thought that Constable O’Connor had described the details of what he observed and that there had been a hand to hand exchange from the Jeep to the Acura, although Constable O’Connor had not seen the item exchanged.

[25] Constable Houlihan testified that he told Constable O’Connor that the Jeep was associated with Mr. Bernard. He explained who Mr. Bernard was because Constable O’Connor had not known who the occupants of the vehicles he had seen were.

[26] Constable O’Connor queried the license plate of the Jeep. On July 10, 2017, he learned that at the time he had seen the Jeep on July 4, 2017, it had been rented by Mr. Singh from WTH Car Rental, as part of Avis Budget Rental group. He did not receive the rental agreement. He was given a date of birth and an address for Mr. Singh in Stittsville. When he conducted an MTO search for Mr. Singh’s driver’s license, and looked at the photograph, he recognized him as the person who had been in the passenger seat of the Jeep the week before. He also queried Mr. Bernard, obtained his mug shot and drivers’ license photograph, and identified him as the driver of the Jeep the week before. He testified that he told Constable Houlihan about this.

[27] While I have no doubt that Constable O’Connor was trying to be accurate in his identification of Mr. Bernard and Mr. Singh, his evidence identifying them as the people he had seen in the Jeep the week before is, standing alone, unreliable because of the fact that the identification was done a week later from photographs of the people he suspected he had seen.

[28] Constable Houlihan said that at some point, Constable O’Connor told him that he thought the occupants of the Jeep had been Mr. Bernard and Mr. Singh. Constable Houlihan agreed that while this was an important piece of information, he had not made any note of it. He also did not recall when it was that Constable O’Connor told him about this. Constable Houlihan also agreed, under cross-examination, that at the preliminary inquiry he had not said that Constable O’Connor had identified the individuals as Mr. Bernard and Mr. Singh. I have no concerns about Constable Houlihan’s lack of notes about this or about his preliminary inquiry evidence given Constable O’Connor’s unequivocal evidence that he told Constable Houlihan about this at the time.

[29] On July 31, 2017, Constable Houlihan said that he was with Officer Lontoc and drove through the area of 235 Forum Drive at 1:30 p.m. He said that he saw Mr. Singh in a white shirt and jeans, with his hair in braids. The officer could give no evidence about the fit of the jeans. Mr. Singh left the front door of unit 97 and walked to the area of Eglinton and Ford Drive, a 300 to 400 metre walk. Constable Houlihan did not see the Jeep that day. Nor did he see Mr. Singh engage in any drug transaction.

[30] On August 9, 2017, Constable Houlihan assigned Constable Mitchell to do some preliminary background checks on Mr. Bernard and Mr. Singh.

[31] Constables Houlihan and O’Connor went to 235 Forum Drive at 11:30 a.m. Constable Houlihan said that in front of the unit, he saw two cars, both of which had the same license plate of BYVN361. In the driveway was a silver Dodge Charger with that plate on the rear. On the road was a gray Dodge Avenger with that plate on the front. Constable Houlihan knew that the plate was owned by Mr. Singh.

[32] Constable O’Connor’s evidence was similar. He saw a grey Dodge Avenger and a similar coloured Dodge Charger. The Avenger had license plate BYVN361 on the front and no plate on the rear. The Charger had the same plate on the rear.

[33] Constable Houlihan testified that at 12:00 noon, Mr. Singh came out the front door wearing a white t-shirt, shorts and flip flops. He walked northbound through the complex. Constable Houlihan remained in the police vehicle and Constable O’Connor followed Mr. Singh. Constable Houlihan said that he saw Mr. Singh return to the front door about 7 minutes later.

[34] Constable O’Connor also said that at noon, they observed a male exit from the unit wearing a white t-shirt, black shorts, white socks, and flip flips, or sandals. He walked north through the complex.

[35] Constable O’Connor got out of their car to follow the male. He saw the male meet with a male who was operating an electric scooter in a catwalk that goes in a northeast direction. The officer observed them meet very quickly and depart in separate directions with the male who had left Forum Place returning there. His evidence was that this was consistent with the possibility of a drug transaction. He saw the male stand on the front porch and look around before going into the home. It was at that point that he identified the male as Mr. Singh.

[36] Constable O’Connor reported to Constable Houlihan that he had seen Mr. Singh walk north towards a catwalk at the end of the complex. He walked towards a white male, with brown hair, who appeared to be about 30 years old and who was operating a manual wheelchair device or scooter. Constable O’Connor said that he saw a quick interaction between them which he believed was consistent with a drug transaction. Based on what he was told, Constable Houlihan said that Constable O’Connor was an experienced officer and that he believed he had seen a drug transaction. Constable Houlihan confirmed under cross-examination that Constable O’Connor had not seen and money or drugs exchanged.

[37] Constable Houlihan agreed under cross-examination that he was not given any information about Constable O’Connor’s vantage point or about the exchange of items specifically.

iii) Evidence of Mr. Singh about between July 4 and August 9, 2017

[38] Mr. Singh provided extensive evidence about the Jeep and who rented it and had it in their possession when. He testified that in 2017, he had seen Mr. Bernard driving a Jeep and that he liked it. So, he said that when he had car issues with his Dodge Avenger in late July 2017, and needed to rent a vehicle for work, he asked Mr. Bernard where he had obtained the Jeep because he wanted to rent the same vehicle. Mr. Bernard told him he had obtained it from Avis Car rental near where he lived. Mr. Singh said that after Mr. Bernard took the Jeep back to the rental agency, he went in and asked for it. A rental agreement document indicating that Mr. Singh picked the Jeep up on July 28, 2017 at 3:29 p.m. was filed. It indicates that the vehicle was to be turned in on August 4, 2017 at 3:30 p.m.

[39] Mr. Singh testified that after his Avenger was repaired, he was going to return the Jeep. But, Mr. Bernard asked him whether, as a favour, he would make the rental for him as he was too young. Mr. Singh said he had known Mr. Bernard for about 10 months at the time of his arrest in September 2017, having met him playing basketball at the community centre in Acorn Place. He did not know why Mr. Bernard needed the Jeep, but said that he thought he had problems with his Dodge Charger. As a result of Mr. Bernard’s request, Mr. Singh said that he called the rental company and extended the Jeep rental for two weeks. On August 4, 2017, Mr. Singh said that he turned the Jeep over to Mr. Bernard.

[40] After this, Mr. Singh said that Mr. Bernard drove the Jeep and he drove the Avenger.

[41] Asked why Mr. Bernard couldn’t rent the Jeep himself if he had rented it before, Mr. Singh did not know and suggested that maybe someone else had helped him out before.

[42] Under re-examination, Mr. Singh produced a collision report from September 3, 2015 in which a silver Dodge Charger with plate BTPZ 955, owned by him, was damaged in an accident. He said that he had never driven it since.

[43] Mr. Singh gave evidence about each of the dates on which the police said they had seen him.

[44] It was Mr. Singh’s evidence that the observations made of the Jeep and its two occupants by the police on July 4, 2017 were not of him. He said that he had not rented the Jeep at that point and that it was Mr. Bernard who had. He also said it was not possible that he was in the Jeep with Mr. Bernard on July 4, 2017 because he never met a person with an Acura.

[45] Under cross-examination, Mr. Singh testified that he disagreed completely with the information that the police obtained suggesting that he had rented the Jeep at this point.

[46] Mr. Singh was asked about the observations of him made at Forum Place on July 31, 2017. He confirmed that he recalled walking from the Forum Place address to Eglinton to a store and returning. He said that the person the police observed was him and that he recalled doing this. He did not remember what he was wearing. He testified that he had braids at the time and agreed that when police saw him wearing jeans and a white t-shirt that this was something we would wear.

[47] Mr. Singh was also asked about the police observations of him on August 9, 2017.

[48] First, he provided evidence contradicting the evidence of the police officers with respect to the vehicles seen at that address that day.

[49] He testified that he had his Avenger back by that date. He was not able to provide the license plate for his Avenger. Mr. Singh initially agreed that the Avenger that the police saw outside Mr. Bernard’s home was his, but then said he could not recall if he drove to Mr. Bernard’s that day. He was clear that he and Mr. Bernard each had their own plates and that the officers’ evidence that the same plate was on the Avenger and Charger did not make sense.

[50] In respect of the 2008 silver Charger observed by the police that day, Mr. Singh said that it was not Mr. Bernard’s silver Charger because he owned a blue Charger. And he said that it was not correct that Mr. Bernard had his license plate. Mr. Singh testified further that he had owned a silver Charger before but that it was written off after an accident. He said it was completely wrong that the police observed a silver Charger outside Mr. Bernard’s home.

[51] Second, Mr. Singh said that it was not him who the officers saw on August 9, 2017. He testified that he knows no one who owns or who has a scooter. Under cross-examination, Mr. Singh agreed that the police could have seen his car at Forum Place. And he agreed that he owned all of the clothing that the police observed being worn by the person they thought was him that day. Then, under re-examination, he clarified that he does not wear flip flops outside and that they are his “house slippers”. He did not recall being at Forum Place that day.

iv) Credibility and factual findings

[52] In my view, Mr. Singh’s evidence as a whole about this period of time is troubling and a number of aspects of it are incredible.

[53] First, Mr. Singh’s evidence about the history of the Jeep rental makes little sense. The idea that he had seen Mr. Bernard driving it, and liked it, and so decided to rent the identical vehicle, rather than just the same kind of Jeep, seemed to me far-fetched. Moreover, the idea that Mr. Bernard would have been able to rent the Jeep initially, and then would have needed Mr. Singh to rent it for him later because he was too young, did not seem reasonable.

[54] It appeared to me that Mr. Singh was trying very hard to distance himself from the Jeep on July 4, 2017, both from the police evidence that he had rented it and from the fact that he was seen in it. The fact that he later rented the vehicle, as evidenced by the rental agreement, does not persuade me that he was not the person who had rented it on July 4, 2017. I do not accept his evidence that he had not rented the vehicle on June 4 and that it was Mr. Bernard who had rented it. It seems to me highly unlikely that if Mr. Bernard was unable to rent it later, he had somehow been able to rent it earlier. It makes much more sense that Officer O’Connor obtained accurate information from the rental company and that Mr. Singh was the person to whom the Jeep was rented on July 4, 2017.

[55] I find, given the fact that I conclude that Mr. Singh had rented the Jeep, and that he had a connection to Acorn Place, that it is likely that the people observed by the police on July 4, 2017 were Mr. Bernard and Mr. Singh. Mr. Singh’s assertion that it was not him and that he knows no one with an Acura did not sound believable to me, particularly when considered along with the rest of his evidence and the evidence of the officers.

[56] Second, it was telling, in my view, that when there were innocuous observations by police that did not include any allegations of drug transactions, as occurred in respect of July 31, 2017, Mr. Singh was willing to acknowledge the accuracy of the police observations and that they had seen him at Forum Place. I view this evidence as supportive of the fact that he was often at that address and that he recognizes that Constable Houlihan was able to accurately recognize and identify him on July 31, 2017.

[57] Yet, when it came to the observations of the police on August 9, 2017, Mr. Singh once again made real efforts to distance himself from having been the person observed by the police. His evidence was internally inconsistent and included an acknowledgement that he had been at Forum Place, an assertion that he had no memory of being there and an assertion that he could have been and that his vehicle could have been.

[58] Third, in my view, Mr. Singh’s evidence was not logical or coherent. He agreed that his Avenger could have been seen, but seemed to suggest that the Charger could not have been – either because Mr. Bernard’s Charger was blue or because the only silver Charger he had owned had been written off in a car accident. I accept that he had a silver Charger But his vehicle, as described in the accident report, had a different license plate. Moreover, the fact he had owned a silver Charger does not preclude the police having seen a silver Charger. I have no reason to doubt the accuracy of the evidence of Officer Houlihan and O’Connor, both of whom saw a silver Charger and saw that the same license plate was on the front of one car and the back of the other car. I accept the evidence of the officers and reject Mr. Singh’s denial of the accuracy of the officer’s observations.

[59] It seemed to me that Mr. Singh was desperate to discredit the observations of the officers about the cars, and to level criticism at them for not taking photographs, all with the intention of undermining the credibility of their observations of him. I reject his evidence that the police were mistaken about the cars.

[60] This causes me to doubt the rest of Mr. Singh’s evidence about the police observations. He seemed unsure as to whether he was even at the Forum Drive location that day. But, like with his evidence respecting the observations of the police on July 4, 2017, he was sure that it was not him that was seen involved in what police believed was a drug transaction.

[61] Mr. Singh’s reasons for being sure it was not him doing what appeared to be a drug transaction were, first, that he did not know anyone with a scooter and, second, that he would never have been wearing flip flops out of the house, as the police described. The evidence of not knowing anyone with a scooter seemed just too convenient, and not a good answer to what seemed to me to be reliable police observations. This evidence about flip flops was, for me, not credible. During his cross-examination, he agreed with the Crown that the clothing the police said he was wearing, consisting of a white t-shirt, black shorts and flip flops, were things he owned and that he wore. Then, in re-examination, he seemed to qualify this evidence and said that his flip flops are “house slippers” and that he wore them inside, but never outside. This re-examination seemed to me a contrived explanation for why the police had mis-identified him.

[62] I prefer the evidence of the police officers that they saw Mr. Singh that day and observed him leave the Forum Place house and then interact with a person on a scooter. I reject Mr. Singh’s denial of this having been him.

v) Surveillance of Mr. Bernard and Mr. Singh on August 14, 2017

[63] According to Constable Houlihan, the next date of significance was August 14, 2017.

[64] As of that date, Constable Andrews became involved in the investigation. Constable Andrews was, in August 2017, an officer in the Community Outreach Program, where he responded to community complaints. He and his partner Constable Malonowich were contacted by the Street Crime Unit to assist in investigating a person whose name they were told was Corey, whom they later learned was Jahmari Bernard. He went to the Street Crime Unit as a “ride along” officer for their investigation. This was a shadow position where he was to learn from more experienced officers.

[65] At some point after 2:00 p.m. on August 14th, Constable Houlihan briefed the other officers, including Constable Andrews, on the plan for the day’s surveillance. Mr. Bernard and Mr. Singh were to be the focus of the surveillance and the team was instructed to go to 235 Forum Place, unit 97 to begin surveillance, with the goal of gathering grounds for a CDSA search warrant.

[66] Constable Houlihan testified that as of August 14, 2017, he believed that Mr. Singh was living with Mr. Bernard at Forum Place. By this point, Constable Mitchell had been tasked to be the lead on drafting an ITO, but Constable Houlihan was unaware of what stage that was at. Police were unaware of the Curran Place unit or of any connection to 510 Curran Place.

[67] That afternoon, Constables Houlihan and Andrews went to Forum Place. They were there from 2:54 p.m. until 4:03 p.m. and made no observations.

[68] Constable Lontoc said that at 4:56 p.m., a grey Jeep Compass arrived at the Forum Place residence and the male driving the Jeep parked in front. Mr. Bernard arrived in a green Charger at 5:00 pm and got into the passenger side of the Jeep. Mr. Bernard was in and out of the Jeep, but eventually the Jeep left with him as the passenger at 5:29 p.m.

[69] While there was some confusion in the surveillance report as to who was driving the Jeep and who the passenger was, Constable Houlihan testified that he received information from other surveillance officers that Mr. Bernard was the passenger and that Mr. Singh had been confirmed to be the driver.

[70] The police officers followed the Jeep into Toronto where it attended at a marijuana dispensary at 6:10 p.m. called Toronto Cana Dispensary at 1698 Queen Street West. Mr. Singh entered the dispensary and returned to the Jeep at 6:17 p.m.. At 6:23 p.m., the Jeep was mobile.

[71] Constable Houlihan agreed that there was an error in the Surveillance Report in that it says T1, which was Mr. Bernard, was out of the vehicle at the dispensary when it was, in fact, Mr. Singh. He agreed that he signed off on the report and did not notice this error. This same error is replicated in the Information to Obtain at paragraph 33 (e), (f) and (g).

[72] The Jeep went back to Mississauga where it pulled into the underground parking lot at 510 Curran Place at 6:56 p.m. It was in the visitor parking area, which was a Green P parking area where any member of the public could park. There are two connected high storey buildings at 510 and 520 Curran, each with hundreds of apartments. Constable Houlihan and Andrews arrived there at 8:19 p.m. This was the first time that Mr. Bernard and Mr. Singh had been seen near the building at 510 Curran Place.

[73] At 8:23 p.m., Constable Orr saw Mr. Singh on foot going eastbound from Curran Place. She described him as wearing a black hoodie top, tight leggings, and white shorts with a black stripe over top. She said that he saw him walk to a parked black Chrysler. She saw him reach into his hoodie pocket and pull an item out with his right hand. The item was concealed within his fist but she saw a little piece of baggie sticking out. Mr. Singh then entered the front passenger seat of the vehicle and the vehicle drove around the corner.

[74] Constable Orr testified that Mr. Singh got out of the vehicle very shortly after. He had flipped the hoodie over his head. He then went back towards Curran Place and around a corner. She did not see him enter but believed he had entered from the west side of the building where there is a garage. Constable Orr said that as she was making her observations, she was calling them out over the radio.

[75] Constable O’Connor also made observations from 500 or 600 feet away. He had seen Mr. Singh at the dispensary where he described him as having been wearing white shorts with a black stripe and a white t-shirt. He said that at 8:23 p.m., he saw a black Chrysler parked in front of 510 Curran Place with a lone occupant and the motor running. He heard over the radio that Constable Orr had seen Mr. Singh. He said that he also saw Mr. Singh, who was wearing the same clothes as earlier. He did not see a hoodie or black leggings. He said that he was able to see Mr. Singh’s hair and that he was not wearing a hat or covering his head. He also said that he saw black legs under the shorts and did not know if Mr. Singh wore leggings or not.

[76] Constable Houlihan did not see Mr. Singh but heard the observations of the officers called out over the radio. He testified that there was confusion initially as to whether the observations were of Mr. Bernard or Mr. Singh but that it was clarified that the officers saw Mr. Singh. Under cross-examination, Constable Houlihan agreed that the surveillance report inaccurately records T1, Mr. Bernard, walking up to the Chrysler when it was, in fact, Mr. Singh. Again, this was signed off on by all of the officers.

[77] At 8:33 p.m. the Jeep left the green P visitor parking under the Curran Place building. Under cross-examination, Constable Houlihan agreed that the surveillance report indicated that Mikael was the only one in the Jeep at 8:33 p.m. and that no one had called out in the surveillance who the driver was during this surveillance. As described below, police subsequently determined that Mr. Bernard was the only occupant of the Jeep. Mr. Singh was not seen again that day.

[78] Constable O’Connor followed the Jeep to the area of Lakeshore and East Avenue in Mississauga near a low-rise residential building on the southwest corner where it parked at 9:07 p.m. William Siddell, a known drug user, who was described as having one leg and being on crutches, approached the car. Constable O’Conner saw the male approach the driver and conduct what he believed was a drug transaction. It was a quick interaction and the Jeep left at 9:09 p.m. This was reported to Constable Houlihan. He agreed under cross-examination that he had not been there but had recognized the man through the description provided of him over the radio. He agreed that when he said at the preliminary inquiry that “I saw the male leave the area”, this was an error.

[79] Officers followed the Jeep after this, with Constable Houlihan assisting with surveillance at 10:46 p.m. He said that he saw the Jeep on Mountainash and Kamloops Drive in Brampton. The surveillance report does not say who the driver of the Jeep was. Both Constables Houlihan and Andrews described what they had seen. At 11:07 p.m., a dark-skinned male with white clothing, described a 5 foot 10 inches and about 50 years old, got into the rear passenger side of the Jeep. Constable Houlihan said he had been waiting before they arrived there. Constable Andrews said he appeared within two or three seconds of the Jeep stopping. The brake lights of the Jeep remained on, and between 20 seconds and a minute later, the male got out of the Jeep and the Jeep began to move.

[80] Constable Houlihan believed that this had been a drug transaction. He based this opinion on his training and on the fact that it appeared that this male had been waiting at a pre-determined location, and that he got into the back seat for such a short time. Constable Houlihan followed the Jeep and confirmed at a red light that it was Mr. Bernard driving. Constable Andrews also identified the occupant of the Jeep as Mr. Bernard. Constable Houlihan recorded in his notes that he identified the driver as Mr. Bernard, although he agreed that this was not in the surveillance report. He testified that he radioed to his team to try to arrest Mr. Bernard and said that their plan was to effect an arrest for possession of a controlled substance. The Jeep left the area and the police lost track of him.

vi) Evidence of Mr. Singh about August 14, 2017

[81] Mr. Singh’s evidence as to what he did on August 14, 2017 was not particularly fulsome.

[82] Under cross-examination, Mr. Singh was asked what he recalled about the day. He testified that his first memory was of going to the dispensary. This is consistent with his examination in chief in which he said that he did not know where he had been before the dispensary and did not recall where he had gone after.

[83] However, at other points under cross-examination, Mr. Singh had more to say about how he and Mr. Bernard came to be together. Asked whether he recalled that he arrived at the Forum Place address at 4:56 p.m., he said that he did not. He did not recall Mr. Bernard arriving shortly after in a green Dodge van. Asked how he ended up in the Jeep going to Toronto, he said that he had been somewhere in Mississauga in the Square One area. Mr. Bernard had the Jeep. He did not know the time of the meet. Asked why they didn’t take his car, he could not recall. He could not recall where he had left his car and said it was possible he drove it to meet Mr. Bernard and possible that he did not. He did not recall driving to Mr. Bernard’s home. Asked if it was possible, Mr. Singh did not remember, but then said it was possible, though it was not possible he had driven the Jeep there.

[84] Mr. Singh testified that he and Mr. Bernard did go to a marijuana dispensary on August 14, 2017. He testified that he wanted to go and buy marijuana at the Toronto dispensary he had been to before. He said that he drove the Jeep because Mr. Bernard was not familiar with Toronto. They went to buy marijuana for personal use. Mr. Singh said that it was purchased for his birthday weekend, his birthday being on Friday August 18.

[85] Mr. Singh agreed that he was the one who went into the dispensary in Toronto, despite the fact that they each wanted to make marijuana purchases. Mr. Singh said that he made purchases for each of them.

[86] After that, Mr. Singh did not recall if they went back to 510 Curran Place. He agreed that he slept there because he and his sister, with whom he lived elsewhere, were fighting. He did not recall what time he arrived there and was not able to recall anything between his time at the dispensary and sleeping. He did not recall what time he went to bed that night. Asked if he remembered going to bed, he said that he did not.

[87] Despite his lack of memory, Mr. Singh testified that it was not him who was involved in the interaction with the Chrysler. He could not provide any evidence as to what he had done at that time, or for the day more generally, other than the trip to the dispensary. He testified that he never met anyone in a Chrysler and that it sounded like a mistaken identity.

vii) Credibility and factual findings

[88] I found Mr. Singh’s evidence about this day to be troubling in a number of respects. His memory as to what he did was, in my view, selective and self-serving. For instance, at some points, he claimed to have no memory of doing anything other than going to the dispensary and recalled nothing he did before or after. But he also purported to know with certainty that he did not drive the Jeep to Mr. Bernard’s home, did not meet Mr. Bernard there, and that he did not meet a person in a Chrysler near 510 Curran Place.

[89] Pressed, under cross-examination, Mr. Singh provided a convoluted story about how Mr. Bernard came to pick him up in Mississauga near Square One to drive to Toronto. This evidence made little sense and he was unable to answer basic questions such as where his car was and why they didn’t take it to Toronto. When compared to Constable Lontoc’s detailed evidence as to what occurred at Forum Place, including with Mr. Singh’s arrival in the Jeep, Mr. Bernard’s subsequent arrival, and their departure together for Toronto, I find myself much more persuaded by the police version of events than by Mr. Singh’s. I found that Mr. Singh was again trying to distance himself from the Jeep, despite the fact that he was seen driving it both to the Forum Place Drive address and on the way to Toronto, and to impugn the credibility of the officers.

[90] There is no dispute that Mr. Singh was seen going into the dispensary in Toronto. He agrees that it was him. There is no doubt, therefore, that he was accurately identified by Constable O’Connor at 6:18 p.m. that evening. While he has no memory of returning to 510 Curran Place, and clearly wished to distance himself from that address, I accept the officers that this is the address to which he returned in the Jeep and that 6:56 p.m.. It went back into the Green P parking lot at 510 Curran Place.

[91] Shortly after, both Constable Orr and Constable O’Connor said that they saw Mr. Singh. There is an inconsistency between the descriptions of the clothing seen by Constables Orr and O’Connor when they saw him outside the Curran Place building. While both described Mr. Singh as wearing white shorts with a black stripe, one said he had black leggings, and the other said he did not. I am not troubled by this difference, given that Constable O’Connor, who did not see the leggings, was 500 to 600 feet away. As he said, he believed he saw the black skin of Mr. Singh, but it could have been leggings. Significantly, Mr. Singh agreed that he owned white shorts with black on them, though he described it as a “strip”, rather than a “stripe”, a difference I find to be of little significance.

[92] The more troubling difference is that Constable Orr said that Mr. Singh was wearing a white t-shirt and Constable Orr said he wore a black hoodie. While one might think this means that they saw a different person, when their evidence is compared, it seems to me that they saw the same person, but one of them inaccurately reported, and is mistaken, about the top.

[93] In my view, notwithstanding the fact that the officers described the top worn by Mr. Singh in completely different manners, both officer saw Mr. Singh. It is significant that during his examination in chief, Constable O’Connor said that the person he saw appeared to be the same person he had seen earlier and that he had the same braids and clothing. There is no doubt that he had seen Mr. Singh earlier at the dispensary and accurately identified him. Constable Orr also said that she had studied a photograph of Mr. Singh before and that she identified him by seeing his face.

[94] Each officer also made very similar observations about what the person did, albeit from different vantage points. Each officer saw Mr. Singh come from the area of 510 Curran Drive. Constable O’Connor saw the Chrysler at 8:23 p.m. Constable Orr saw Mr. Singh walking eastbound to the Chrysler at 8:23 p.m. Constable O’Connor heard this on the radio and also saw him walking towards the Chrysler. Both observed him get into the front passenger side of the Chrysler, saw the Chrysler travel a short distance, and then saw Mr. Singh walk back towards Curran Place. Given the very similar descriptions of what was seen, and the fact that both saw the black male wearing white shorts with a black stripe, I conclude each saw the same person and that it was Mr. Singh. One officer was mistaken about his top.

viii) Surveillance evidence of August 15, 2017

[95] On August 15, 2017, there was a police briefing at 2:25 p.m. The objective for the day was to gather more evidence and, ultimately, to effect an arrest of whomever was believed to be trafficking narcotics. At that point, no decision had been made respecting an arrest of either Mr. Bernard or Mr Singh and no decision had been made with respect to a search warrant. While the officers knew the Forum address and unit, they did not have any specific condominium unit at Curran Place in play, although the general address at 510 Curran Place was known to them.

[96] Constable Houlihan and Constable Andrews went to the area of Forum Drive, arriving at 2:49 p.m., with the hope of seeing Mr. Singh or Mr. Bernard. The Jeep was not there. Other officers went to the underground parking lot at 510 Curran Place.

[97] At 3:30 p.m., Constable O’Conner saw the Jeep parked in the visitor parking lot at 510 Curran Place. At 3:39 p.m., it left the parking lot with Mr. Bernard driving and Mr. Singh as the passenger.

[98] The officers followed the Jeep to an area near Square One, where Mr. Bernard stopped at a complex at 4954 Albina Way. Constable O’Connor and Giles radioed that a male exited the Jeep. Constable Houlihan was able to identify that person from across the street as Mr. Singh. He said that Mr. Singh went to a Dodge Avenger and then got back into the Jeep. The Jeep was at that location for about 10 minutes, and then left.

[99] Constable Houlihan testified that he followed the Jeep down Hurontario Street in Mississauga. There were discussions between police over the radio that if they observed what they believed was a drug transaction, they would make an arrest of the drug customer.

Central Parkway and Michelle Alderman

[100] The Jeep went to the area of Hurontario and Central Parkway at 4:20 p.m. Constable Houlihan testified about his observations at 30 Central Parkway West. Constable Andrews also testified about what he saw.

[101] Constable Andrews said that he saw the Jeep pull into the rear loading and receiving area of the complex. He marked on Exhibit 13 where he saw the Jeep stop. Constable Houlihan said that he had a clear unobstructed view of the back west side of the building. Both officers described seeing a white, heavy set female. Constable Houlihan said she had long black hair, black pants and a white tank top and was waiting by herself on the west side of the building where the Jeep went at 4:23 p.m.

[102] Constable Houlihan made observations of what happened from a distance of 50 metres away. He said that the Jeep pulled in and went to the back of the building and parked. The female approached the driver’s side door where Mr. Bernard was and the officer saw her hands go into the car, through the open driver’s side window. She then removed them from the car and walked away. From the motions of her hands, Constable Houlihan thought something had been exchanged and thought that this looked like a drug transaction between the woman and the driver. Mr. Bernard put the Jeep in reverse, backed out of the area and drove away.

[103] Constable Houlihan was cross-examined about his vantage point at 30 Central Parkway. He said that he was across the street on the north side of Central Parkway. On a map, which was marked as Exhibit 5, he indicated during cross-examination where the garbage area was in the back of the building and where he was in his car across the street. He did not, at that point, indicate where the interaction took place.

[104] Constable Houlihan was cross-examined about his preliminary inquiry evidence in which he had said that he had observed the woman’s hand and Mr, Bernard’s hand exchanging an item. He agreed that he had said this and testified that it appeared that there was an exchange of an item. He was clear that he was able to see this from his vantage point.

[105] Under re-examination, he marked on Exhibit 5 where Ms. Alderman had been when the transaction took place.

[106] Constable Andrews described seeing the female leave the receiving area of the building and walk towards the front driver’s window of the Jeep. The window was rolled down. She reached into the window with a closed fist and her hand came out, closed, a few seconds later. While he did not see anything transferred, from his training he believed that this was a drug transaction. He was too far away to hear any conversation and made no observation to suggest that there had been conversation. She walked away from the Jeep and began smoking a cigarette. The Jeep reversed and left. The officer marked on Exhibit 13 where he had seen this interaction take place.

[107] Constable Andrews said that during the surveillance, he was able to see only the driver, and not the passenger in the Jeep.

[108] Constable Houlihan relayed his observations to the surveillance team and said he was going to arrest the woman for possession of a controlled substance.

[109] After what he believed was the drug transaction was completed, Constable Houlihan saw the woman reach up and give something he could not identify to a white male on the first balcony of the building and then walk away. Constable Houlihan agreed that at the preliminary inquiry, his initial evidence had been that there was no physical interaction between the woman and the man on the balcony. He had subsequently said that the woman gave the male a lighter or a cigarette and that he did not give her anything. The officer rejected the suggestion put to him that he had realized that the clarification was to overcome the problem of the drugs found on Ms. Alderman having come from this male, as opposed to from Mr. Bernard.

[110] Constable Andrews was asked about his role in the arrest and what he had seen. He said that he was hanging back and that his role was more to learn. He also said that he saw the female and that she might have been talking to someone on the balcony or said something to them.

[111] Constable Andrews was also asked about a note he made that said, “did not located CDSA”. He said that whatever initial search was done did not lead to discovery of narcotics. But he said that he did not perform the search himself and knew that Ms. Alderman was to be searched at the division by a female officer.

[112] At 4:26 p.m., Constable Mitchell arrested the woman, Michelle Alderman. She shouted that she did not have anything. The male on the balcony told Constable Mitchell that he had asked her for a lighter for a cigarette. The police told Ms. Alderman they had watched what they believed was a drug transaction. Constable Houlihan said she was yelling that a male named Cory was driving and that he had given her $20 for cigarettes and that he had not given her any drugs because he did not have any.

[113] Constable Houlihan testified that there was no female officer on scene to search Ms. Alderman so she was told that she had to go to the station to be searched. She was to be taken to the station by Constables Mitchell and Drepaul. She was upset in the back of the cruiser. Just before she left for the detachment, she told Constables Mitchell and Drepaul that “I am trying to help, he didn’t have enough to sell me. He is going to re-up now”. Constable Houlihan understood this as her saying that Mr. Bernard had not had enough drugs to sell to her and that they were going to obtain more drugs. He told Ms. Alderman that he had watched her and that he believed she had thrown drugs down or hidden them. He said he was also concerned that she might have swallowed them.

[114] Constable Houlihan testified that at some point, he was not sure whether it was before or after he left the scene, he was advised by Constable Mitchell that he had located a small amount of what he believed was crack cocaine in the front of Ms. Alderman’s leggings.

The trip to Toronto

[115] Constable Houlihan radioed to the team, who were following the Jeep on Highway 403 east, that drugs had been located on Ms. Alderman, that Mr. Bernard and Mr. Singh were arrestable for trafficking in narcotics, and that she had said they were going to “re-up”. He relayed this information to his team not because he necessarily believed that they were going to re-up, but so that they knew what she had said. Constable Houlihan said that he understood that Constable Mitchell was going to return to the division to finish typing up the ITO for a search warrant.

[116] Constable Houlihan was advised by Constable Ambrosia, who was with Constable Lontoc, that the Jeep went to the area of Heath and Yonge Streets in Toronto. They observed a blond, medium built, white male with a blue tank top, green shorts and a brown satchel get into the rear passenger seat of the Jeep and the door closed. He was there for a short period and left without the satchel, walking away from the Jeep. The stop was less than a minute and the Jeep left. Constable Ambrosia believed, based on his experience, that this had been a drug transaction.

[117] Constable Houlihan testified that there was discussion among the police about arresting the male, but that Constable Ambrosia and Detective Giles were not able to do so.

ix) Evidence of Mr. Singh about August 15, 2017

[118] Mr. Singh testified that the night before, the night of August 14, 2017, he spent at Curran Place. He said that he did not see Mr. Young there at that time.

[119] He was asked what time he had woken up that morning and said that he could not recall and could not remember if he stayed up the whole night before. He did recall that he had not worked on the 14th or the 15th. Under further cross-examination, when asked what room he had slept in on August 14th, Mr. Singh said that he had never slept in a room and that he could not recall going to sleep that day. His evidence was that he may have slept, and may not have, and cannot say where he slept, if he did sleep.

[120] Mr. Singh was shown a photo of a Cash Line robe that had the initials M.S. on the front. He said that the robe was his and that it was in unit 510 at Curran Place. He said that he had not taken it to Curran Place and that it had been moved with his mother’s and sister’s stuff when they moved from Acorn Place. He said he had not used it since he lived at Acorn Place, but that his mother used it from time to time.

[121] Under re-examination, Mr. Singh was asked why he did not remember where he slept the night before his arrest. His evidence was that he recalled being tired the next day, and knows that he did not sleep at his Mum’s unit, unit 2502. He then said that he may have slept at a friend’s or possibly at his Mum’s and that he just does not recall.

[122] He was asked how his day started on August 15, 2017 and explained that he had done errands. He said that his plan for the day was to get ready for his birthday, which involved going to the barber and buying a new outfit. His best friend’s birthday was the 16th, so he and his best friend and another friend who worked at a club were all going to go out. Mr. Bernard told him that he wanted to come too.

[123] Mr. Singh said that Mr. Bernard picked him up from the loading dock at Curran Place at some point between 12:00 and 3:00 p.m. Under cross-examination, he narrowed the time to between 12:00 and 2:00 p.m. Asked whether it could have been at 3:43 p.m., which was the time the surveillance officers saw the Jeep leave Curran Place, he disagreed.

[124] Mr. Singh said that the plan was to go to both an outlet in Oakville and to Toronto Premium Outlet at Yorkdale in Toronto to pick up an outfit – a three piece Hugo Boss suit and Louis Vuitton loafers. He said that he knew the outfit he wanted was at both locations, but that he wanted to go to both. But, he said that he was tired, and fell asleep within five or ten minutes of getting into the Jeep.

[125] It was Mr. Singh’s evidence that he did not see Mr. Bernard sell drugs to anyone that day and that he did not see any interaction between Mr. Bernard and a white woman. He testified that he had never seen Mr. Bernard sell drugs to anyone and that he had never sold drugs to anyone. He said that he slept through any stop that Mr. Bernard made in Toronto.

[126] Mr. Singh testified that he recalled waking up when they were going west on Highway 401 and that at that point, he grabbed his wallet and realized that he did not bring money. So, he told Mr. Bernard that he needed to go back to Curran Place to get his cash. Asked where his own car was at that point, he said that it was in the area of Eglinton and Hurontario. He recalled that because he said that when he was released from custody, it had been towed from that area.

[127] When he woke up, Mr. Singh did not ask Mr. Bernard what they had been doing for the previous hour and a half. Mr. Singh’s explanation for sleeping a lot seemed to be that he had suffered with lethargy since his accident and is tired a lot of the time.

x) Credibility and factual findings respecting the August 15, 2017 surveillance prior to arrest

[128] It is the applicants’ position that Constable Houlihan is not credible or reliable and that his manner of testifying was evasive and indirect. It is suggested that his evidence respecting the interaction with Ms. Alderman illustrates this because he changed his evidence from cross-examination, when he said that the drug transaction was in an area at the back of the building where the garbage bins were, to his re-examination when he is said to have moved the location to closer to Central Parkway where his view would not have been obstructed. The defence position is that the officer did this in order to justify having been able to see a drug transaction when, based on his evidence under cross-examination, this would not have been possible.

[129] I do not accept that Constable Houlihan’s evidence changed in any significant way or that his evidence was incredible as was suggested. He was always clear that his vantage point was from 50 metres away, across the road. The Jeep went into the back area of the building where the industrial bins were and parked ahead of the bins. It was in this area that Ms. Alderman approached. While I accept that there may be a minor discrepancy between the area where the garbage bins were in the back and the precise spot pf the transaction identified by Constable Houlihan during his re-examination, I am not troubled by this. First, both officers identified the exact same spot. Second, re-examination was the first time that Constable Houlihan was asked to mark the spot. Third, I view there as only a very slight difference between the area captured as to where the bins were and the spot of the transaction, and note that the evidence was that the Jeep parked in front of the bins, which would mean that there was no real inconsistency between the cross-examination and re-examination.

[130] I accept that the police observed what they believed was a drug transaction between Ms. Alderman and the driver of the Jeep, Mr. Bernard. I also accept that while the officers did not believe Ms. Alderman’s denial of there having been a drug transaction, they thought it was possible that she was told Mr. Bernard that he was going to “re-up” , which meant he was going to get more supplies. There is every reason to think that this may be what was done in Toronto with the man with the satchel.

[131] Once again, I find Mr. Singh’s memory to be selective and his evidence to lack any ring of truth. His evidence was not internally consistent as to where or if he slept the night before. I cannot accept that he does not know if or where he slept the night before his arrest. Moreover, it makes no sense that he would have no memory about his sleeping arrangements, and yet be able to say so confidently that the officers were wrong that Mr. Bernard and he left the parking garage shortly after 3:30 p.m., and insist that it was between 12:00 p.m. and 2:00 p.m. (a change from his examination in chief when he said it was between 12:00 p.m. and 3:00 p.m.). Particularly with his evidence about not knowing if he had slept at all the night before, Mr. Singh seemed to me to be trying to create an explanation for why he would have fallen asleep in the Jeep so quickly, a version of events he needed so as to distance his involvement in any drug transactions.

[132] I also found other aspects of Mr. Singh’s evidence unbelievable. He says he had a plan to go and shop. Yet, he somehow forgot the money he needed to but the outfit he planned to purchase. This seemed unlikely. More unlikely still was the idea that having planned to shop, he would have fallen asleep for almost the entire afternoon. The Jeep was seen by the police to have made three stops. I cannot accept that Mr. Singh never woke for these, particularly when he was seen out of the vehicle at 4954 Albina Way, as described by the police in evidence that I accept.

[133] In my view, Mr. Singh has fabricated the evidence about sleeping for the afternoon in order to distance himself from what he knows the police observed. While he may have dozed at some points, I find that he was aware of what Mr. Bernard was doing and that all his extremely detailed evidence about going to the mall to purchase a birthday outfit was a fabrication that makes no sense in view of the other evidence.

xi) The Arrest of Mr. Bernard and Mr. Singh

[134] After the brief stop in Toronto, Mr. Bernard and Mr. Singh returned in the Jeep to Brampton. Constable Houlihan re-advised the team that they were arrestable for trafficking in a controlled substance on the basis of what happened at Central Parkway. He told Constable Orr, who was following the Jeep, that when it was safe, if they went to Curran Place, they would be arrested.

[135] Mr. Bernard and Mr. Singh were arrested at 6:17 p.m. The facts relating to the arrest are not relevant to the issue of whether the officers had reasonable and probable grounds for the arrest. Accordingly, they will be considered when I assess whether Mr. Singh’s s. 8 Charter right was violated because of the manner in which he was searched after his arrest.

xii) Positions of the Parties

[136] It is the applicants’ position that the police lacked grounds for the arrest and that Mr. Singh was arrested by police with no reason except for his association with Mr. Bernard.

[137] The Crown submits that the investigation began with an informant tip in relation to Mr. Bernard but that the surveillance that was then conducted led police to conclude that both he and Mr. Singh were involved in drug trafficking.

xiii) Analysis

[138] In my view, the police had reasonable grounds to arrest Mr. Singh for trafficking.

[139] In reaching this conclusion, I rely on constable Houlihan’s evidence that he believed that both Mr. Bernard and Mr. Singh were trafficking in a controlled substance. I find that his subjectively held belief was objectively reasonable in respect of Mr. Singh having regard to the following evidence:

• There was evidence that Mr. Singh had rented the Jeep that appeared to the police to be used during some of what were believed to be drug transactions;

• Constable O’Connor reported to Constable Houlihan that he had observed Mr. Singh engage in behaviour consistent with a drug transaction with a man on a scooter on August 9, 2017;

• On August 14, 2017:

o Mr. Singh and Mr. Bernard went together to a marijuana dispensary in Toronto where Mr. Singh purchased marijuana;

o Mr. Singh was seen engaging with a person driving a Chrysler in what the police thought was behaviour consistent with a drug transaction;

o Mr. Bernard was seen engaging in activity with William Siddell that appeared to be consistent with a drug transaction;

o Mr. Bernard was seen at Mountain Ash and Kamloops engaged in activity that the police believed was consistent with a drug transaction;

• On August 15, 2017:

o Mr. Singh and Mr. Bernard were both occupants in the Jeep at the time that the police observed what they believed was a drug transaction with Michelle Alderman, who was found to have drugs on her;

o The occupants to the Jeep told Ms. Alderman that they were going to “re-up”;

o Mr. Bernard and Mr. Singh then drove to Toronto where a man got into the Jeep for a short period and then left, conduct that the officers believed was consistent with a drug transaction.

[140] I do not rely on the surveillance evidence in respect of July 4, 2017 as I found the identification evidence to be unreliable.

I recognize that in many of the instances described by the police, they did not see anything actually exchanged. But, when viewed in its totality, the surveillance evidence I accept confirms that the experienced police officers, who had to assess the totality of the evidence through the lens of their experience, had reasonable grounds to believe that these two individuals were trafficking in narcotics. Not only was the possibility of innocent coincidence gone, but they had cogent evidence from which to believe that Ms. Alderman had purchased drugs while they watched. I conclude that there was an ample basis for the arrest of Mr. Singh. I find no violation of s. 9 from the police decision to arrest him.

b) Were the police authorised to search the Jeep incident to the arrest?

[141] Following the arrest of Mr. Bernard and Mr. Singh, the Jeep that they had been driving was searched. In the Jeep, the police located: marijuana, two cell phones, a grinder, various documents an empty pill bottle, four pills and cocaine. They also located a bag in the back seat that contained cocaine.

[142] I understand the applicants’ position to be that if the police lacked grounds for arrest, they also lacked grounds to search the Jeep incident to arrest. The applicants submit that if all the police had was reasonable grounds to suspect, and thus had the authority to conduct an investigative detention of Mr. Bernard and Mr. Singh, that this would not have justified a search of the Jeep.

[143] Given my view that the police had grounds to effect a lawful arrest of Mr. Singh (and Mr. Bernard), the search of the Jeep was a valid search incident to that arrest as it was done to discover and secure evidence of the offence for which the two occupants had been arrested.

[144] There were compelling circumstances from which to infer that there would be evidence in the Jeep. There were a number of instances in which police had observed what they believed were drug transactions from the Jeep on both August 14 and August 15. Furthermore, Ms. Alderman had told the police that the individuals in the Jeep were going to re-up, following which they knew that the Jeep had been driven to Toronto where a very short interaction took place in which an individual got into the Jeep for a short time with a bag and left without that bag.

[145] In my view, if the arrest was valid, as I have concluded it was, there can be no issue that the search of the Jeep following that arrest was also valid and did not result in a s. 8 breach.

c) Was there a violation of Mr. Singh’s s. 8 right because of the manner in which he was searched?

[146] Mr. Singh alleges a breach of his s. 8 right on the basis that the police conducted an unreasonable strip search of him.

[147] There is no dispute between the parties about the applicable legal principles relating to the alleged strip search.

[148] Put succinctly, as Iacobucci and Bastarache JJ., for the majority, explained in R. v. Golden, 2001 SCC 83, 2001 S.C.J. 81 at paras. 89-90, strip searches involve a significant and very direct interference with personal privacy. They can be humiliating, embarrassing and degrading to those whose are subject to them regardless of how they are carried out. They are only legitimate in circumstances in which the arrest is lawful and in which the strip search is incident to the arrest, and for the purpose of discovering weapons or evidence in the possession of the person arrested. The police must establish reasonable and probable grounds for a strip search, in addition to having reasonable and probable grounds for the arrest.

[149] There is no attempt by the Crown to suggest that if there was a strip search conducted by Constable Andrews, as alleged, it was justified. Indeed, it is acknowledged that if I conclude that what Mr. Singh says happened occurred, there would be a very serious s. 8 Charter violation.

[150] The parties agree that this issue must be resolved on the basis of my factual findings as to what happened at the time of, and shortly after Mr. Singh’s arrest. In order to explain the conclusions I have reached, I will review the evidence of the officers and Mr. Singh.

[151] Constable Houlihan said that prior to the arrest, he ensured that Constable Andrews had on his police vest, and informed him that it was his choice whether to draw his gun or not. He told Constable Andrews that he was to deal with Mr. Singh. Constable Andrews testified that he understood that Constable Houlihan would arrest the driver and he would arrest the other person, Mr. Singh.

[152] As they drove into the underground parking lot at 510 Curran Drive, Constable Houlihan called for the take-down. He said he had put on his police vest for the arrest so it would be obvious who he was. As arranged with Constable Orr, he drove his car in front of the Jeep and Constable Orr was behind them. The Jeep was boxed in and could not move. He put on his lights and siren and got out of his car, shouting at the occupants to identify themselves as officers, and instructing the occupants not to move.

[153] Mr. Bernard was driving the Jeep. He stopped it and was immediately compliant. Constable Houlihan had his handgun out, pointed at Mr. Bernard, who put his hands on the dashboard and did as he was asked. Constable Orr helped him out of the car. Mr. Bernard was arrested at 6:17 p.m. and handcuffed.

[154] The evidence about Mr. Singh’s arrest by Constable Andrews came from him, Constable Houlihan and Constable Orr.

[155] Consistent with Constable Houlihan’s evidence, Constable Andrews testified that he wore a police vest and hat and a tactical belt. Constable Orr said that she was also wearing a police vest and had her badge out at the time of the arrest. She was not asked about Constable Andrews’ clothing.

[156] Constable Andrews said he got out of the passenger side of his car and walked around the Jeep to the rear, where he encountered Mr. Singh, who was walking away from the Jeep, looking like he was trying not to draw attention to himself. Exhibit 14 depicts the positioning of the cars and where Constable Andrews went.

[157] Constable Andrews said that he identified himself as a police officer, told Mr. Singh that he was under arrest, and to turn around, show him his hands and face the wall to the right of the Jeep. Constable Andrews denied having pointed his gun in Mr. Singh’s face, but agreed that he pointed his firearm. Constable Andrews denied that Mr. Singh looked shocked or that he asked the officer what he was doing.

[158] Constable Andrews said that Mr. Singh was wearing a baggy t-shirt from his company, Cash Line. He had acid washed jeans that had zippers on both front pockets. The officer described them as tight and said that they were low, or at about mid hip level.

[159] Constable Andrews said that Mr. Singh was compliant. He ordered him to the ground, which Mr. Singh did by taking a knee and then lying prone on the ground. He then handcuffed him to the rear and did a pat down search of his waist and pockets. He understood that his authority to search after the arrest was for evidence or for means of escape or weapons.

[160] Constable Andrews said that he searched Mr. Singh’s pants’ pockets. Mr. Singh had a set of keys with a fob on it in the left front pocket and a cell phone in the right front pocket. He said that he had to unzip one pocket. This search was conducted while Mr. Singh was on the ground. Constable Andrews explained that he turned Mr Singh to one side to search the pocket. He placed these items on the car hood and subsequently turned them over to Detective Giles. He then stood Mr. Singh up.

[161] Constable Orr testified that she assisted in standing Mr. Singh up from the pavement beside the vehicle so that he could be searched.

[162] Constable Andrews said that while he had Mr. Singh on the floor, Constable Orr was behind him. He assumed that she was watching him perform the search.

[163] Constable Andrews denied having said to Mr. Singh “Good thing you didn’t make no sudden moves. Good thing you didn’t trigger me because I had a guy pull a knife on me a few days ago and I’m still on edge about it.” He also denied saying to Mr. Singh, after standing him up, “Toronto guys are looking for you eh. Toronto niggers are looking for you”. Constable Andrews said that he never said that and never heard Officer Houlihan say that. Constable Orr was not asked, at the preliminary inquiry, whether she had overheard any of these comments.

[164] After standing him up, Constable Andrews said that he conducted a pat down search of Mr. Singh’s lower leg area for evidence of an offence, a means of escape or evidence of weapons.

[165] It was suggested to Constable Andrews that Mr. Singh had the keys in his right hand and his cell phone in his left hand. That was not what the officer recalled. He denied that Constable Houlihan had grabbed the keys from Mr. Singh, yelled commands at him and then placed Mr. Singh’s back against the wall.

[166] It was also suggested to Constable Andrews that after he stood Mr. Singh up, he unbuckled his pants, unbuttoned his jeans and pulled his pants down. He denied this. He also denied having pulled his undergarments away from his body or having reached in and searching his private parts, including moving his penis and scrotum and placing his fingers on his testicles. He said that he never searched inside of Mr. Singh’s pants or inside his underwear, either in the groin area or in his rear area. He said that had he had any concerns about something being concealed, he would have relayed his concern to Constable Houlihan and Detective Giles. It was his understanding that such an invasive search had to be conducted at a police station where there was privacy.

[167] Under cross-examination, Constable Andrews was asked about the description of Mr. Singh’s clothing that he recorded in his notes as a late entry: tight fit jeans with zipper pockets, light coloured t-shirt with logo Cash Line, long chain and braids. He did not note anything about blue boxers and did not mention blue boxers in his evidence at the preliminary inquiry. The first time he mentioned blue boxers was during his evidence in chief. He also made no mention previously of the way that Mr. Singh wore his pants.

[168] Constable Andrews was asked if Mr. Singh wore a belt and believed he did, though he agreed that he had not made a note of it. He thought the belt was dark and had a buckle but did not recall much else about it. He did not recall a bright gold buckle in the shape of a lion’s head.

[169] Under cross-examination, Constable Andrews was shown Exhibits 9 and 10, which are photographs of Mr. Singh and Constable Houlihan after the arrest. He could not say where he was when they were taken because he did not know when they were taken. He agreed that Mr. Singh’s pants appeared to be below his waist and below his butt. He ultimately agreed that they were at an upper thigh level. He testified that this was the way they were when he first saw Mr. Singh. He said that he had not noted the pants because he did not see it as unusual. When it was suggested to him that seeing Mr. Singh’s underwear is the first thing he would have noticed, he testified that this is not an unusual way to dress, that he had personally worn his pants lower than his waist and that he does not judge people by how they dress.

[170] Under cross-examination, Constable Andrews was asked about the blue boxers. He was then shown a pair of blue Nike basketball shorts that appeared to be the same colour as what Mr. Singh was wearing under his jeans. He was also shown light blue boxers and said he had never seen them before.

[171] Asked about Exhibit 10, Constable Andrews agreed that the belt buckle appeared gold. He could not say more about it and testified that he did not recall the belt buckle and remembered only that the belt was dark coloured. It was pointed out to him that the buckle appeared below Mr. Singh’s crotch in the photograph. He agreed that in the photographs, the belt buckle on the pants may have been open. He agreed, but could not comment on how someone else would have worn a belt. Constable Andrews did not recall Mr. Singh’s pants being unbuckled or unzipped. All he recalled is that the pants hung below his waist. Counsel showed to Constable Andrews a black belt with a Medusa head buckle. He agreed it could be the one Mr. Singh wore. He also agreed that the tip of the nose appeared scratched. The officer did not recall how that happened.

[172] Under further cross-examination, Constable Andrews agreed that the belt had 5 holes and that 3 of them appeared worn in and 2 appeared unused.

[173] Counsel also showed to Constable Andrews a pair of jeans that he agreed looked similar to the ones worn by Mr. Singh. On each leg were two pockets – one without a zipper and the one below with a zipper. There were also pockets on the buttocks of each leg. Constable Andrews said he found Mr. Singh’s Iphone 6S Max in the right zippered pocket. The officer agreed that such a phone measures 6.22 inches in length and 3.06 inches in width. When he measured the jeans, Constable Andrews said the right front pocket was just under 3 inches deep and that the pocket zipper opened just over 4 inches. Constable Andrews agreed that based on the measurements provided, the phone would not fit in the zippered pocket. He then said that he believed that the phone was in the front left pocket and that the keys were in the right pocket.

[174] Photographs of Mr. Singh at the police station were entered into evidence as Exhibits 16 and 17. The officer said that the photographs showed discolouration between the jeans and t-shirt. He agreed that it did not appear like Mr. Singh’s basketball shorts were visible. He also said it was difficult to tell where he was wearing his jeans.

[175] Constable Houlihan said that he neither conducted nor saw any other officer conduct any invasive search of Mr. Singh .

[176] While he did not recall Constable Andrews shouting at Mr. Singh not to move, Constable Houlihan said that he probably had done so. He saw Constable Andrews go to the side of the Jeep where Mr. Singh was, but his attention was then focused on Mr. Bernard.

[177] After arresting Mr. Bernard, Constable Houlihan testified that he could see that everything was ok with Mr. Singh. He thought Mr. Singh had been in handcuffs.

[178] Constable Houlihan said that he did a cursory search of Mr. Bernard, for safety reasons, before putting him into his car. He read him his rights to counsel at 6:32 p.m.. As he dealt with Mr. Bernard, Mr. Singh was on his knees on the other side of the car with Constable Andrews and another officer. He said he really did not recall making observations of Constable Andrews and Mr. Singh other than that he asked if everything was good and said to Mr. Singh to “chill”. It was obvious to him that Mr. Singh was compliant. Constable Houlihan described his own interaction with Mr. Singh as having been a brief check-in.

[179] Constable Houlihan denied taking any keys from Mr. Singh. He denied ever seeing Mr. Singh lying on his stomach on the ground though agreed that it was possible that Constable Andrews had asked him to do so. Constable Houlihan was also not sure exactly when Mr. Singh had been handcuffed.

[180] It was suggested to Constable Houlihan that he was present when Constable Andrews applied handcuffs to Mr. Singh and said to him that it was a “good thing he didn’t make any sudden moves because a guy had pulled a knife on him a few days before and he was still on edge about it”. Constable Houlihan denied ever hearing this. He also denied hearing ever saying to Mr. Singh that Toronto guys and “Toronto niggers” were looking for him and testified that he would never use such a racial slur.

[181] Constable Houlihan was asked about the nature of the search was conducted on Mr. Singh.

[182] According to Constable Houlihan, during his examination in chief, he might have directed Constable Andrew to conduct a standard search for officer safety and to locate drugs after the arrest. He did not direct anything more invasive to be done. He did not see Constable Andrews do a more invasive search and testified that they were in a public lot and that there were lots of civilians around. He could not recall seeing cameras, but said that they are often in underground lots.

[183] It was Constable Houlihan’s evidence that the arrest was at 6:17 p.m. and that Constable Lontoc started the photographs after that. He agreed that it could have been around 6:23 p.m. He accepted that Constable Lontoc would have been finished that by about 6:30 p.m.

[184] Constable Houlihan was shown Exhibit 9, which he agreed was taken by Constable Lontoc in the loading dock and which depicts the Jeep and, in the back, he and Mr. Singh against the wall. He agreed that Mr. Singh was handcuffed and was wearing jeans. Asked if this was how the jeans were on arrest, the officer did not know. He testified that he had not pulled Mr. Singh’s pants down and that Officer Andrews had not done so either. He said that he would not describe Mr. Singh’s pants as being down and that they are in the waist area. He then agreed that they were under the buttocks and below the crotch area. Asked whether this was how Mr. Singh had been when he was speaking to him, Constable Houlihan said, “I made no observations of his pants being abnormally low”.

[185] It was suggested to the officer that the first thing he would have noticed about Mr. Singh when he was standing beside him was that his pants were open. He said that he did not recall his belt flapping or his pants falling down. He did not ask any of the other officers how his pants came to be that way and it was not brought to his attention by Mr. Singh or any of the officers.

[186] When shown a close-up, Exhibit 10, Constable Houlihan’s evidence was that he did not notice Mr. Singh’s pants being this way at the time. Shown the belt buckle, he agreed that it appeared to be hanging down and said he did not notice this, or that the pants were open, when he was standing beside Mr. Singh. Constable Houlihan was unequivocal that he did not see any officers remove Mr. Singh’s clothing and that he did not notice Mr. Singh’s pants being down. He said that from the photograph, he cannot tell if Mr. Singh’s pants are done up or undone. He also cannot tell if the gold buckle is loose or whether it is through the loops.

[187] Constable Andrews was asked to look at Exhibit 10 depicting Constable Houlihan standing with Mr. Singh after he was handcuffed. He said that the photograph depicted the way that Mr. Singh’s pants appeared to him. Asked whether this caused him concern, he testified that he had seen people with pants lower than this before and that it did not cause him any concern.

[188] Under re-examination, Constable Houlihan testified that in his experience, some people wear their pants very low such that they are below their private parts. He had not seen Mr. Singh before and so does not know how he dressed. He had seen people dress in the way that Mr. Singh appeared in the photos. He said that if he saw a person appearing as Mr. Singh does with his pants like that on the street, he would think that was how the person dresses.

[189] It was suggested to Constable Houlihan that in his presence, Constable Andrews had conducted a “level three” strip search of Mr. Singh. He did not recall Constable Andrews undoing Mr. Singh’s belt and the buttons on his jeans or zipping down his pants. He did not observe Constable Andrews taking his hand and opening Mr. Singh’s undergarment and start to reach in and search his private parts. He said that Constable Andrews did not search Mr. Singh’s rear end. He testified that when he saw Mr. Singh under arrest, his pants were not down.

[190] Constable Houlihan also denied that he had started to ask Mr. Singh questions about his connection to Curran Place and who was upstairs. He denied having said that he was going upstairs and that Mr. Singh better tell him who was upstairs. He testified that there were no interrogations done and that he was with Mr. Bernard.

[191] After Mr. Singh was handcuffed, Constable Houlihan recalled Mr. Singh standing off to the side and asking him if he was good and if everything was good. At this point they were standing against the wall. He said that while Constable Lontoc took the photographs of the scene, he was dealing with Mr. Bernard. It was suggested to him that this was the point at which he was interrogating Mr. Singh. He testified that there was never an interrogation of Mr. Singh and that he never peppered him with questions about the unit. He denied that while Constable Lontoc took the photos, he was “fishing around” trying to figure out Mr. Singh’s connection to the unit.

[192] Mr. Singh’s evidence about the arrest was quite different. He gave extensive evidence about the clothing he wore that day and about his clothes generally.

[193] Mr. Singh testified that on November 15th, he wore acid washed jeans with a Versace belt, blue basketball shorts underneath, blue underwear and a white Cash Line t-shirt. His clothes were entered as exhibits.

[194] With respect to the jeans, Mr. Singh testified that they had two deep pockets without zippers and two fashion zipper pockets that were for not meant for putting things in. He said he never put anything in the zippered pockets. He described the jeans as fitted skinny jeans that hugged his body. He testified that he wears them on his waist and that he buckled the pants and wore them properly.

[195] Mr. Singh described the Versace belt as a gift he purchased for himself for his birthday the year before for $970.00 He called it his “prized possession” and said that he loved the way it looked. He said he wore it at his waist and fastened it. He said that the belt was scraped during his arrest and that he heard it scrape when he was lying on the ground.

[196] Mr. Singh identified the blue basketball shorts he wore under his jeans on top of boxer shorts. Asked why he wore them under his jeans, he explained that “it’s my style” and that it is comfortable and that sometimes he plays basketball and that then he can take his jeans off and play. Under cross-examination, he agreed that he was wearing basketball shorts under his jeans on the way to the mall in summer in case he wanted to take off his pants, if a basketball game broke out. He was defensive about having worn basketball shorts saying, “why can’t I wear shorts at the club?”. Asked whether he would normally wear shorts under his jeans to the mall, Mr. Singh said that he had done so before and that he remembered taking them off and folding them before.

[197] In support of his position that he always wears his pants at his waist, counsel for Mr. Singh tendered two photographs of himself wearing his pants at his waist. The first was taken in 2014 or 2015 and was a holiday photograph of him and his grandmother. He agreed that in that photograph, he wanted to be presentable and to honour his family. The second was taken on April 19, 2014 and was a photograph of him and his family and friends. He testified that those two photographs were brought to demonstrate how he dressed in 2017, even though they were taken in 2014 and 2015. It was his evidence that he never has and never will wear his pants below the buttocks and crotch and that he never has and never will have his pants button unfastened and zipper down. He explained under re-examination that he did not have any more recent photographs because his phone with more recent photographs was seized when he was arrested.

[198] In terms of the arrest, Mr. Singh said that he had forgotten his cash and so Mr. Bernard drove him back to the loading dock at Curran Place. He said that he got out of the car and started walking to the door when a sedan, driven by a woman, drove past and almost hit him. He said that there was a period where he looked at her, shocked and confused, for 10 to 20 seconds and then he started walking toward the loading dock entrance.

[199] As he walked towards the door, Mr. Singh said he looked up and saw a black guy, Constable Andrews, with a gun in his face telling him not to move. He said that he asked what the man was doing. He testified that he thought he was going to be murdered and robbed. Mr. Singh said that Constable Andrews never identified himself as a police officer or said to show his hands. Mr. Singh said that there was nothing to suggest to him that Constable Andrews was an officer. He was staring at Constable Andrews’ hands, but could not say if he was wearing gloves. While the officer was telling him not to move, Mr. Singh said that he did move from side to side and that he was backed up 3-5 steps towards the wall.

[200] Mr. Singh testified that after less than a minute with Constable Andrews pointing a gun in his face and telling him not to move, he saw Constable Houlihan, whom he knew as an officer who had harassed him and other black men at Acorn Place. While his experience with Constable Houlihan had never been pleasant, he claimed that he felt slightly relieved because he knew him to be a police officer, even if what they were doing was “not policing”. According to Mr. Singh, it was Constable Houlihan who told him that he was under arrest. He did not know who was with Mr. Bernard at that point.

[201] Mr. Singh testified that he had his keys in his right hand and his phone in his left hand and that as Constable Andrews backed him towards the wall, Constable Houlihan took his keys from his hand. Constable Andrew told him to go to the ground, which he did. He said that he lay on the ground and placed his phone there and that the police must have taken it. Constable Andrews did a pat down search of him while he was on the ground. He was then handcuffed.

[202] According to Mr. Singh, Constable Andrews told him that it was good he did not move because a guy pulled a knife on him a few days before and that he was still on edge about it. Mr. Singh said that he took this as a passive threat. Constable Andrews then stood him up and told him “Toronto niggers are looking for you”. Mr. Singh said that the officer spoke to him in a manner that was “gloating” and happy to be telling him this. According to Mr. Singh, he responded, “what are you talking about?”

[203] According to Mr. Singh, Constable Andrews then unbuttoned his Versace belt, unbuttoned his pants, unzipped his pants and put his hand into his underwear and to his penis and between his penis and testicles. He then put his hand to his rear and between the cheeks of his buttocks. Mr. Singh said he was confused by what the officer was saying, as it did not make sense. And he was confused that he was being sexually assaulted by the officer and so was frozen. He said he kept asking “what’s going on?“ and why he was under arrest.

[204] Crown counsel suggested to Mr. Singh that this was “one big lie”. Mr. Singh responded that this was insulting that that he has the picture of his pants below his crotch and buttocks. He insisted that he does not wear his pants like this. Mr. Singh testified that it is stereotyping of black males to suggest that he wore his pants down in the way the officers described.

[205] Asked what happened next, Mr. Singh said that Constable Houlihan was backing him up and taunting him after taking the keys. Constable Houlihan said things like that he better tell him what was upstairs and that he was going to go up there and that he could not save him if Mr. Singh didn’t tell him what was upstairs. He said he was going to get a warrant. Mr. Singh said that he did not answer any of Constable Houlihan’s questions in this conversation.

[206] Mr. Singh said that after the taunting, Constable Houlihan left and went into the building. He said he was left with Constable Andrews.

[207] Mr. Singh said that Constable Houlihan then came back and “was trying to make it seem like he knows something”. He was asking about names and who people were like Javel Williams and Monefa Daley and Yvette Delay, whether they had pets, who the tenants were and whether they would be alarmed. He said that Constable Houlihan then went back into the building and left him with Constable Andrews, who watched him until he was transported to the police division.

[208] Mr. Singh testified that at the division, his pants were fastened and at his waist as depicted in Exhibit 17. He said that his basketball shorts cannot be seen because his jeans are on his body properly.

[209] While Mr. Singh’s position is that he was sexually assaulted, he agreed that he had not yet filed a complaint against Constable Andrews. He had made no complaint to the Peel Regional Police or to anyone else about this alleged sexual assault.

[210] There is no video surveillance evidence from any cameras in the loading dock area on August 14 or 15. Constable Houlihan testified that there were people in the area who were in their cars and blocked from leaving by the police cars. He thought that they would have had phones with cameras in their cars. He also testified that he instructed officers to draft a Production Order for Duca Property Management about five days after the arrest. The Order was obtained and served on the property management company but there were issues with compliance.

Positions of the Parties

[211] It is Mr. Singh’s position that in the course of arresting him in the underground parking garage at 510 Curran Place, Constable Andrews conducted a strip search of him in which he undid his belt and jeans, pulled them down, placed his hand inside both the basketball shorts he was wearing and his boxer shorts, and under his testicles and penis, and then used his hands to spread the buttocks cheeks and put his hand in.

[212] Constable Andrews denies having conducted any sort of strip search of Mr. Singh. Constable Houlihan denies having seen Constable Andrews conduct any strip search.

Analysis

[213] I am not satisfied that Mr. Singh was strip searched or that Constable Andrews did anything inappropriate to Mr. Singh during the course of the arrest and search. As I have indicated, I found many aspects of Mr. Singh’s evidence about matters before the arrest to be unreliable and incredible. He was a person whose evidence was self-serving and untrustworthy. Notwithstanding the concerns that have been raised about the police officers’ evidence, when I carefully assess Mr. Singh’s version of events, I am not satisfied that what he described ever took place. Rather, I find that he has fabricated his evidence with the intent of supporting a claim of a Charter breach.

[214] In addition to what I have already said about Mr. Singh’s credibility, there are further reasons, relating to the evidence he gave about his arrest, that cause me to disbelieve him.

[215] First, Mr. Singh provided a lengthy and, in my view, exaggerated impression of what he was thinking as he was arrested. I reject his evidence that there was nothing about Constable Andrews that suggested he was a police officer and accept the officers’ evidence that they were all wearing their police vests. I also reject his claim that he thought he was going to be robbed and murdered. I find that he embellished this evidence to suggest that the officers were not effecting a proper arrest when, in fact, that is precisely what they did.

[216] Second, I found Mr. Singh’s explanation as to why he wore the bright blue basketball shorts over his boxers, and under his jeans, to be incredible. On his evidence, he was going to buy a new suit. Yet, he said that he wore these boxers under fitted jeans when he was going to the mall in case a basketball game “broke out”. Basketball games do not just break out in a shopping mall. And even if one did, why would Mr. Singh join in on one when he had a specific plan to shop? I found his evidence to be completely non-sensical. It just cannot be the explanation for his choice to wear the bright blue basketball shorts. It makes much more sense that Mr. Singh wore the basketball shorts over his boxer shorts so that he could wear his jeans slung low without exposing his underwear.

[217] Third, while Mr. Singh testified that he always wears his pants at his waist, the evidence he offered in support of this was far from compelling. He relies on two dated photographs. Even if his phone was seized on arrest, one would have expected that he would have had been able to obtain more recent photographs of himself, in situations other than at family gatherings, where his pants were at his waist. His assertion that he “never has and never would” wear his pants as they are depicted in the photographs is certainly not strengthened by the evidence he offered to support his testimony.

[218] Fourth, while I accept that Constable Andrews was not completely consistent in his evidence respecting the order of things during Mr. Singh’s arrest, and may well be mistaken as to where he obtained the key fob and cell phone from, I am not persuaded that he did what is alleged during the arrest. He was the junior officer there to learn from Constable Houlihan. The arrest took place in a very public area. Not only were there other officers in the immediate vicinity, there were also cars and civilians present. There was a significant risk that, had he done what is alleged, people would have seen. The other officers saw nothing of the sort. Further, there was every reason to believe that the interactions between the police and Mr. Singh would be caught on surveillance video. I do not accept that the junior officer, situated in this public setting, took the enormous risk of pulling down Mr. Singh’s pants and touching him sexually as alleged. Nor do I accept that he made the racist, inappropriate comments that Mr. Singh alleged, and which no one else heard.

[219] Fifth, it seems to me that had Mr. Singh in fact been sexually assaulted in the manner he described, he would, in the time since August 15, 2017, have made an official complaint about Constable Andrews or reported to someone that he had been sexually assaulted. The fact that he has done nothing makes his claim less likely to be true.

[220] Sixth, if Constable Andrews had done as Mr. Singh alleged, and pulled his pants down to sexually assault him in the manner described, it is inconceivable that the police would have then left his pants down, to be seen by others, in the period after. One would have expected that had these things taken place, the officers would have immediately pulled Mr. Singh’s pants back up to where they should be, so as to avoid detection. Yet, in the photographs filed, Constable Houlihan is standing beside Mr. Singh. Neither one of them appears even the slightest bit concerned about the way in which Mr. Singh’s pants are being worn by him.

[221] I cannot say that the evidence of the officers was without legitimate challenges. Constable Houlihan was inconsistent about a number of details respecting when and for how long he was with Mr. Singh. Constable Andrews was inconsistent about and likely inaccurate about where he located Mr. Singh’s key fob and phone.

[222] After considering all of the evidence, I remain somewhat troubled by the evidence of the police about Mr. Singh’s pants. The officers were inconsistent with respect to whether they were concerned by Mr. Singh’s pants or not and whether they had noticed the way he wore them or not. I would have thought anyone seeing Mr. Singh’s pants as they appear in Exhibit 10 would have noted that they were down and that his shorts were exposed.

[223] When I look at the exhibit photographs of Mr. Singh, I cannot tell if the pants were done up or not in Exhibit 10. While his belt buckle appears to be hanging, I cannot say whether the belt is done up or not. The jeans appear to me to be below where they would be expected to be worn, as they are below his buttocks in the back and his crotch in front. But, the evidence is that there is a fashion in which people do wear their pants low. In order to find a breach, I must find Mr. Singh’s evidence as to what happened credible. For the reasons I have set out, I do not accept Mr. Singh’s evidence as to what happened. I cannot find, on the basis of the photograph alone, that Mr. Singh’s pants were low because they were pulled down by the police. For all the reasons I have set out, I find him to have fabricated evidence and to have given an implausible and unreliable account of what happened during his arrest.

[224] Accordingly, I am not persuaded that he was sexually assaulted as he alleges. I find that there was no improper or strip search and, therefore, find no s. 8 violation.

d) Was there a violation of Mr. Singh’s rights to counsel?

[225] Mr. Singh was arrested at 6:17 p.m. His position is that he was not told the reason for his arrest or given his rights to counsel following his arrest and that he was not advised of his rights to counsel until 2:00 a.m.

[226] It is the Crown’s position that Mr. Singh was properly advised of his s. 10(b) rights on arrest and that he waived that right.

[227] Sections 7 and 10(b) of the Charter are intended to ensure that those who are arrested or detained are informed of their rights and obligations under the law and how to exercise those rights so that they may make a choice about whether to speak with police that is both free and meaningful. In R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173, Lamer C.J. summarized, at para. 18, the obligations imposed on the police:

a) To inform the detained of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal aid and duty counsel;

b) If the detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right; and

c) To refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity.

[228] It is well established that an accused has the burden of establishing a breach of s. 10(b) of the Charter. If an accused establishes that the right to counsel was properly asserted, but that the request to speak with counsel went unfulfilled, it is the Crown that must justify the non-fulfilment by establishing that the accused waived the right.

[229] The issue to be resolved is really a factual one. If Mr. Singh was not advised of his s. 10(b) rights immediately upon his arrest, his s. 10(b) right to counsel would have been violated. If he was advised of his right to counsel by Constable Andrews, and said he understood, and did not wish to contact counsel, there is no s. 10(b) breach.

[230] I turn briefly to the relevant evidence, followed by my credibility and factual findings.

[231] The accused were arrested at 6:17 p.m. Constable Andrews said that he gave Mr. Singh his rights to counsel at 6:34 p.m. He testified about the details of what transpired between him and Mr. Singh.

[232] Constable Andrews said that he advised Mr. Singh that he was being arrested for drug trafficking and asked him if he understood, to which he answered, “yes”. He advised Mr. Singh that he had the right to retain and instruct counsel without delay, which Mr. Singh indicated he understood. He told Mr Singh that he had a right to telephone any lawyer he wished, which Mr. Singh said he understood. He told Mr. Singh that he had a right to free legal advice from a Legal Aid lawyer, which Mr. Singh said he understood. He told Mr. Singh that if he was charged with an offence, he could apply for Legal Aid and that there was a toll free number that could put him in contact with duty counsel for free legal advice “right now”, which he said he understood. He was asked “Do you wish to speak to a lawyer now?” Mr. Singh responded “No”. Finally, Mr. Singh was then told that he was going to be charged with drug trafficking and that he was not obliged to say anything but that whatever he said could be given as evidence, which he said he understood.

[233] It was suggested to Constable Andrews that he did not read Mr. Singh his rights to counsel or caution. He denied this. Constable Andrews recorded in his notes, made at the time, that he provided Mr. Singh with his rights to counsel at 6:34 p.m. He also noted that Mr. Singh answered “Yes”, which was recorded in his notes as a “Y” to the first five questions, and “No”, which was recorded as “N” to the sixth question, which was “Do you wish to speak to a lawyer now?”.

[234] Constable Houlihan did not hear Constable Andrews read Mr. Singh his rights to counsel.

[235] Mr. Singh said that at the time of his arrest, he was never told, by either Constable Andrews or Constable Houlihan, what he was arrested for. He said he was never told that he had a right to remain silent. He said he was not read his rights to counsel or told of his right to speak to duty counsel . He was never asked if he wanted to speak with a lawyer. Mr. Singh said he was first given his rights to counsel at 2:00 a.m. the next morning, at the division, by Constable Houlihan. He said that at that time, he advised that he wanted to speak to a lawyer.

[236] I do not accept Mr. Singh’s evidence that he was not provided with his rights to counsel on arrest. For all of the reasons I have already set out, I find Mr. Singh’s evidence to be self-serving and largely not credible. As I have already indicated, I find his memory is selective and that he will say whatever he thinks will advance his interests. It is possible that in the stress of the moment of being arrested, he has no memory of being given his rights to counsel. But I think it much more likely that he is fabricating his evidence about this issue.

[237] I prefer the evidence of Constable Andrews about this issue. I accept that the officer testified that he provided Mr. Singh with his rights to counsel at 6:34 p.m. This is about the same time as Mr. Bernard was read his rights to counsel by Constable Houlihan, which occurred at 6:32 p.m. Constable Andrews recorded having done so in his notes, and recorded the answers that Mr. Singh provided to him in response to each question he asked. While Ms. Seymour suggests that Constable Andrews’ evidence that Mr. Singh said he did not wish to contact counsel was a “bold-faced lie”, I have no basis upon which to conclude this to be the case. I accept that when he was at the police division later, Mr. Singh asked to contact duty counsel, but I find that he was given his rights to counsel on arrest, as described by Constable Andrews and that he expressly said that he did not wish to speak with counsel.

[238] In light of what I find was a waiver of the right to counsel, I find no s. 10(b) breach.

e) Was there a violation of s. 8 because of the entry into the Curran Place unit prior to the issuance of the search warrant?

[239] Subsection 11(7) of the Controlled Drugs and Substances Act states:

(7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one.

[240] During Mr. Singh’s arrest, a key fob was seized from him. Constable Andrews said that he put it on the hood of the police car and subsequently turned it over to Sergeant Giles. Constable O’Connor’s evidence was that he obtained the keys from Sergeant Giles, who told him that Mr. Singh possibly resided in the building. He took the keys to the front desk at 510 Curran Place and spoke with a security officer there. He was advised that the fob belonged to unit 2502. He was also given a list of names associated with that unit of Mr. Singh’s: Javel Williams, Monefa Daley, Yvette Daley and Jameson Young.

[241] It was Constable Houlihan’s evidence that he learned from Constable O’Connor that Mr. Singh owned a unit in the building. During his examination in chief, he said he had been told that Mr. Singh lived there. However, under cross-examination, he confirmed that he had just been told that Mr. Singh owned the unit. He also agreed that there were other names of people, believed to be family members, that were associated with the unit. He agreed under cross-examination that this was the first time that he learned anything about unit 2502 and that up to that point he had believed that Mr. Singh resided at Forum Place.

[242] As a result of what he learned, Constable Houlihan said that he had a discussion with Detective Giles and Constable O’Connor and that they believed that there would be evidence at unit 2502. Believing that the Curran Place unit should be searched, Constable Houlihan said that they had two options: one was to apply for a search warrant and conduct surveillance outside the unit until they got it. The second was to use to keys they had and “freeze” the apartment so as to ensure that nothing was disturbed inside it until they applied for and obtained a search warrant.

[243] Constable Houlihan set out why he believed there were exigent circumstances justifying the freezing of the unit while the police awaited a search warrant. He testified that he was concerned that if Mr. Bernard and Mr. Singh had been expected at the unit, and did not arrive because of their arrest, that people inside the apartment would know something was up. He also said that because the arrest had been in a public place, he was concerned that people might tell the occupants of the unit about the arrest and that evidence in the apartment might be lost including such things as drugs, money, debt lists or scales.

[244] In my view, if there was a proper basis for the search warrant to issue, there were exigent circumstances that justified freezing the unit until the search warrant was obtained. I do not view this as a case of exigent circumstances created by the police. The arrest took place in a public place, in view of members of the public. There was a risk that others who might be in the apartment, or who would know people in the apartment, would have heard about or seen the arrest and that as a result, evidence would be lost while they awaited a search warrant.

[245] The real issue, in my view, is whether the search warrant for unit 2502 could properly have been issued. I address this issue below.

f) Was there a basis for the issuance of the search warrant at the Curran Place unit?

[246] At the outset of the application, in light of the challenge to the search warrant, there was an issue respecting what, if any further disclosure could be made of the redacted portions of the Information To Obtain (ITO). Redactions had been made in order to protect the identity of an informant. It was the position of Mr. Bernard and Mr. Young that it was preferable to engage in steps two and three of the Garofoli procedure prior to the testimony of the various police officers who were to be called on the application. While Mr. Singh preferred to cross-examine the police officer before dealing with the redactions, I determined that we would address he redactions first.

[247] The process followed was this. The Crown provided a Proposed Summary of the redacted information from the ITO. This was filed as Exhibit 1. The Crown also filed the unredacted ITO, which is Exhibit 2 and which has been sealed. The applicants agreed that I needed to review the two documents and assess whether the informant was a bone fide informant and whether there was other information that could be disclosed.

[248] I reviewed the two documents and then heard submissions from the applicants respecting what further information they thought should be contained in the Summary. On the basis of the submissions and my input, a “Draft 2 Summary” was produced by the Crown and then a final “Step 2 Summary” was created. It is Exhibit 4. Following submissions, and a review of the unredacted ITO, I advised the parties that I was satisfied that the informant was confidential informant.

[249] The assessment of whether the search warrant was properly issued will be determined on the basis of the ITO and Step 2 Summary.

[250] When a s. 8 challenge is made to the issuance of a search warrant, the reviewing justice must determine whether, on the basis of the material before the authorizing justice, as trimmed of any extraneous or unconstitutionally obtained material, and as amplified by evidence adduced on the hearing to correct any minor technical errors in drafting the ITO, there remains sufficient credible and reliable evidence for the warrant to issue. This is not a de novo hearing and the reviewing judge does not stand in the place of the justice who issued the warrant. On this review, the existence of non-disclosure, misleading or unconstitutionally obtained material and new evidence of the omission of facts material to the discretion to issue the warrant are all relevant. Their impact is to determine whether there was a proper basis for the decision of the authorizing justice to issue the warrant: R. v. Araujo 2000 SCC at para. 54; R. v. Pires 2005 SCC 66 at para. 8; R. v. Morelli 2010 SCC 8 at paras. 40-42; R. v. Mahmood 2011 ONCA 693 at para. 99; R. v. Sadikov 2014 ONCA 72 at paras. 84-88)

[251] There are some corrections to the ITO which the Crown agrees should be made. None of these appear to me to be particularly concerning errors.

a) It is agreed that the ITO, like the Surveillance Report, has a mistake about who was seen on August 15, 2017 at the dispensary. At paragraphs 33 (g) and (h) there is an indication that Mr. Bernard entered the dispensary. In fact, Mr. Singh did so. This, in my view, is a relatively minor error.

b) It is agreed that the description in the ITO of the observations made by the police on July 4, 2017 should have included the fact that Constable O’Connor, who made the observations, did not identify Mr. Bernard or Mr. Singh as the people involved at the time and only did so later.

c) It is also agreed that the reference to a confidential informant and to previous observations of Mr. Singh in the summary bolded section of paragraph 32 ought to be removed.

[252] After hearing the evidence and submissions, I find that there are a number of other, very significant problems with the ITO in respect of Mr. Singh and unit 2502 of 510 Curran Place:

a) There are various places in the ITO in which the affiant suggests in strong terms that Mr. Singh lives at unit 2502 of 510 Curran Place. Indeed, at paragraph 45, there is an indication that “police have no doubt” that he resides at this address. Similar statements about where Mr. Singh lives are made at paragraphs 8 and 24. In fact, the police believed, up until Mr. Singh’s arrest, that he lived at the Forum Drive address. After that, while Constable O’Connor received information that Mr. Singh owned unit 2502, he was not told that Mr. Singh lived there. In fact, he was given the names of four other people associated with the unit. This information was not included in the ITO. In my view, it was very misleading for the affiant to so firmly assert that Mr. Singh lived in the unit when there was an absence of evidence that he did. I view this mis-information in the ITO as significantly misleading for the issuing justice.

b) At paragraphs 19-21, the affiant indicates that Mr. Singh was arrested and charged with drug offences on February 8, 2014, July 11, 2014 and September 14, 2014. The police were aware that all of these charges had been were stayed or withdrawn. This should have been included in the ITO and was not. Again, the manner in which the information was presented created the impression that the charges either led to convictions or were unresolved. In fact, if they were to me mentioned at all, it was imperative for the affiant to ensure that the justice was not misled. Again, this materially misled the issuing justice.

c) In respect of the description of the observations with Michelle Alderman, the affiant failed to include in the ITO that Michelle Alderman had told the police that “Cory” did not have drugs, that there was no drug transaction and that they were going to “re-up”, which means going to get drugs. While the police may not have accepted that there was no drug transaction, the fact that she believed they were going to re-up was important. In fact, the surveillance that followed was consistent with the Jeep going to Toronto to re-up, and the fact that cocaine was found in the Jeep when Mr. Bernard and Mr. Singh were arrested also supported this theory. All of this evidence supports a theory that the Jeep was used to traffic drugs, and not unit 2502.

d) Paragraph 44 of the ITO says that the police received information from a confidential source that has been corroborated that Mr. Singh was a drug dealer. In fact, there is no mention whatsoever of Mr. Singh in the information received from the confidential informant. All of the informant’s information was in respect of Mr. Bernard.

e) Finally, and perhaps most importantly, the ITO repeatedly and inaccurately creates the impression that the police had seen Mr. Singh engaging in drug trafficking from unit 2502, which is not accurate. This mis-impression is created because the affiant uses the word “residence” to refer to both unit 2502 and to the building generally.

For example, in paragraph 43 there is an indication that police are maintaining surveillance of the “residences” for the protection of evidence, which clearly refers to the unit. It then says that “controlled substances are being sold from the residence”, suggesting that they are being sold from unit 2502, when there was no evidence of this in respect of unit 2502. At best, there was evidence that on one occasion, narcotics had been sold outside the building by Mr. Singh on August 14, but even this was not “from the residence”

A similar conflation of “residence” as meaning both the unit and the building is seen in paragraph 44 of the ITO. The affiant says that Mr. Singh has been seen leaving “the residence” in a vehicle, engaging in activity consistent with drug trafficking, and then returning to the residence. This must mean the building of 502 Curran Place and be a reference to the August 14 surveillance. But, the affiant goes on to say that Mr. Singh has “engaged in activity consistent with drug trafficking directly from the residence” and that Mr. Bernard and he “have been seen to leave the residences on foot and engage in activity consistent with drug trafficking”. The incorrect impression left by this paragraph is that the police have observed Mr. Singh leaving unit 2502 to engage in drug trafficking activities on multiple occasions. In fact, he was never seen coming or going from that unit.

This same inaccurate impression is left in paragraph 47 when the affiant says that “Police have observed Jamari Bernard and Mikael Singh exercise control over the listed dwelling houses” This is false respecting unit 2502. There was never a point when Mr. Singh was even observed coming or going from that unit. The affiant continues, saying that both of them have been observed engaging in activity consistent with drug trafficking “directly from both residences”. Again, this is just not accurate respect unit 2502. Indeed, as I have indicated, it is not even accurate respecting the building at 510 Curran Place.

[253] The ITO sets out an accurate and fair evidentiary basis upon which the justice could have concluded that Mr. Singh was involved in drug trafficking. As I have found, based on their observations, the police had grounds to arrest both Mr. Bernard and Mr. Singh. The issue, however, is whether they had reasonable grounds to believe that there would be the evidence they suggested at unit 2502 of 510 Curran Place.

[254] The police knew nothing of that unit until Mr. Singh’s arrest. They learned of the building at 510 Curran Place the day before and, on that basis, had evidence of some connection between Mr. Singh and 510 Curran Place. The entirety of that connection was as follows:

a) The building address first came to the attention of the police on August 14, 2017. As set out at paragraph 34 of the ITO, at 6:56 p.m. that day, the Jeep Compass drove into the public parking area under 510 Curran Place. While the ITO indicates that Mr. Bernard and Mr. Singh were seen entering the apartment building at 510 Curran Place, on foot, this is not in the Surveillance Report or in the evidence of any of the officers. Certainly, there was no connection made to any unit. At 8:23 p.m., Mr. Singh was seen outside 510 Curran Place engaging in what appears to have been a drug transaction. He walked back towards 510 Curran Place, but there is no evidence as to where he went or whether he even entered the building. There is no evidence as to where he spent the night. The Jeep left the parking garage without him.

b) The next connection between Mr. Singh and 510 Curran Place was on August 15, 2017, the next day. The Jeep was seen parked in the same parking area, a public area, at 3:30 p.m. and was seen leaving the lot with Mr. Bernard and Mr. Singh at 3:38 p.m. The police had no evidence as to whether Mr. Singh had spent the night at that building or, indeed, whether he was even picked up by Mr. Bernard there. The two were then in the Jeep and police observed what they believed were drug transactions from the Jeep.

c) The final connection to Curran Place was when the Jeep returned to the parking lot at 6:17 p.m., after the transaction with Michelle Alderman and the subsequent trip to Toronto to, according to her, “re-up”. This was shortly before Mr. Bernard and Mr. Singh were arrested.

[255] In addition, the police obtained information after the arrest that Mr. Singh had a key fob to unit 2502. They learned that Mr. Singh owned that unit and that it was associated with a number of other peoples’ names.

[256] It is my view that when the inaccurate and misleading information is removed from the ITO, it is qualitatively different from that which was before the issuing justice. Rather than an investigation that had only revealed unit 2502 on Mr. Singh’s arrest, the ITO erroneously created an impression that it was an address at which Mr. Singh lived and a location from which he had been regularly seen engaging in drug trafficking. Neither was accurate.

[257] When the ITO is corrected for these serious inaccuracies and all of the errors I have set out, I find that there was not a proper basis for the warrant to issue for unit 2502. There was no evidence about Mr. Singh’s connection to the unit other than that he possessed a key to it and owned the unit. He had never been seen coming or going from it. Prior to the time of his arrest, he had only been seen in the area of 510 Curran Place once on August 14, 2017 and once leaving the parking area on the afternoon of August 15, 2017. On neither occasion was there any connection to unit 2502. While there was evidence that he and Mr. Bernard were engaged in drug trafficking, it appeared to be from the Jeep.

[258] I find that the totality of the evidentiary record that could properly have been before the issuing justice falls short of being sufficient to establish reasonable and probable grounds to believe that there would be the items listed in appendix “A” of the ITO, including controlled substances or drug paraphernalia or cellular phones used by Mr. Singh at unit 2502 of 510 Curran Place. As such, the search of the unit, including both the freezing of it while police awaited the warrant, and the search after the warrant was issued, were in violation of the applicants’ s. 8 Charter rights.

g) Given the s. 8 breach what is the appropriate remedy for both Mr. Singh and Mr. Young?

[259] Section 24(2) of the Charter mandates consideration of whether the administration of justice would be brought into disrepute by the admission of evidence obtained in a manner that infringed the Charter.

[260] In determining whether or not to exclude evidence obtained as a result of a Charter breach, the Supreme Court of Canada requires consideration of the three lines of inquiry, as set out in R. v. Grant, 2009 SCC 32. The court must consider the seriousness of the Charter infringing state conduct, the impact of the breach on the Charter protected interests of the accused and society’s interest in adjudication of the case on its merits. I shall consider each of these lines of inquiry.

[261] While I acknowledge that obtaining a search warrant can be seen as the antithesis of a wilful disregard for Charter rights, the ITO contained very misleading information respecting unit 2502. As the Court of Appeal held in R. v. Rocha, 2012 ONCA 707 at para. 29 if an ITO is misleading, the court must consider where it lies on the continuum from the intentional use of false and misleading information at one end to inadvertence at the other. See also: R v. Morelli, at paras. 99-103.

[262] In my view, the ITO, which was intended initially to be only in respect of Mr. Bernard’s Forum Place address, was changed by the affiant too quickly and without the care and attention that were required when the Curran Place unit was added. The officer who prepared the ITO drafted it so that it was misleading in a number of very significant ways. The false impression was created that Mr. Singh faced drug charges and was known to be a drug dealer. Inaccurate information as provided respecting where Mr. Singh was believed to live and respecting where police had observed what were believed to be drug transactions. As I have indicated, the word “residence” was used carelessly to mean both the building at 510 Curran Place and the actual unit to be searched. The affiant suggested that Mr. Singh had been seen trafficking in narcotics directly from the residence, wrongly creating the impression that he was using the Curran Place unit for this. There was, manifestly, no such evidence.

[263] I find that the affiant failed to take the care that was required to ensure that the information in the ITO was accurate and fair. Amended at the last minute to add the Curran Place unit, the ITO was materially misleading and false. While I cannot say that the affiant set out to deliberately mislead the justice, the many errors, viewed together, cannot be properly characterized as inadvertent either. I find that the affiant failed to pay the scrupulous attention to important details that is required of those who draft such documents. In my view, the repute of the administration of justice would be significantly eroded if this sort of unacceptable police conduct were permitted to form the basis of such an intrusive invasion of privacy as the search of a residential unit.

[264] This factor favours exclusion of the evidence found in the Curran Place unit.

[265] The second Grant factor requires consideration of the impact of the breach on the Charter-protected interest of the accused and requires an assessment of the extent to which the breach undermined the interests protected by the right infringed. Breaches may range from being fleeting and technical to profoundly intrusive. Here, the breach is of privacy. Assessing the degree of the intrusion, however, requires some consideration of the evidence in order to determine how both Mr. Singh and Mr. Yong were affected.

[266] I will address the second prong of the Grant test for each of the applicants separately.

[267] In R. v. Jones, 2017 SCC 60, writing for the majority, Coté J. explained at paras. 9, 32-33 that when an accused, such as Mr. Singh, mounts a s. 8 Charter challenge, he is entitled to rely on the facts that the Crown will allege in the prosecution against him. The rationale for this rule is that an accused should not be required to testify or make any admission to gain standing on the Charter application. In this case, therefore, I can infer from the ITO that the Crown alleges that Mr. Singh lived at the Curran Place unit. Thus, whether or not he in fact lives in the unit, Mr. Singh had standing to challenge the warrant executed at that location, a matter that was not challenged by the Crown: R. v. Labelle 2019 ONCA 557.

[268] The second branch of the Grant analysis requires consideration of the extent to which the breach actually impacted the applicant, Mr. Singh. Had he not testified, I would have proceeded on the basis that he lived in the Curran Place unit and on the basis that there had been an unlawful intrusion to his residence, a place in which he enjoys a high expectation of privacy. This, in my view, would have made the breach extremely serious.

[269] But, Mr. Singh chose to testify. It was his evidence that he does not and never has lived at unit 2503 at 510 Curran Place. He lived with his older sister Makeda at a different location. He explained that he bought that unit as an investment and co-owned it with his cousin Javel Williams. He said that his mother, Yvette Daley and his younger sister lived there.

[270] It was Mr. Singh’s evidence that he never kept personal items at the Curran Place unit. While his passport was found there, he said that his mother kept it for him. He explained that the phone bill for the unit was in his name because his mother did not have a good credit rating.

[271] Mr. Singh’s evidence is directly relevant to assessing how serious the violation was for him. The fact that he did not live at the unit, despite owning it, significantly attenuates the seriousness of the violation for him. While it was the place where his mother and sister lived, his expectation of privacy in the unit was, in my view quite low.

[272] The Crown also takes the position that Mr. Young lived in the Curran Place unit. On this basis, he had standing to challenge the search warrant. No one suggests otherwise.

[273] Again, evidence was adduced on the application respecting Mr. Young’s connection to the unit. First, the police officers who entered the Curran Place unit located Mr. Young sitting on a bed playing video games with a plate of food in front of him. Second, Mr. Singh testified that Mr. Young was not one of tenants in the unit. Mr. Singh could not say how often Mr. Young slept there.

[274] Mr. Young was in the unit when the police entered it without a warrant to freeze it. He was not a resident, but was present in the unit. On the basis of the evidence adduced on the application, I cannot conclude that his expectation of privacy was high or that the violation of his expectation of privacy was particularly serious.

[275] In my view, the second Grant factor favours admitting the evidence in respect of both of the applicants.

[276] In considering the third prong of the Grant analysis, consideration must be given to the reliability of the evidence. I acknowledge that the exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the view of the public and thus bring the administration of justice into disrepute.

[277] In the Curran Place unit the police located a loaded 9 mm handgun, a loaded 9 mm Glock and a semi-automatic hand gun. In addition, they located 454 grams of cocaine and marijuana. This is reliable evidence, the exclusion of which will remove the entire case against Mr. Young and many of the charges faced by Mr. Singh.

[278] While the first line of inquiry favours exclusion of the evidence, the second and third favour admission. But, as Brown and Martin JJ., writing for the majority of the Supreme Court of Canada recently observed in R. v. Le 2019 SCC 34, at para. 140.

…it is not necessary that both of these both two lines of inquiry support exclusion in order for a court to determine that admission would bring the administration of justice into disrepute...But it is also possible that serious Charter-infringing conduct, even coupled with a weak impact on the Charter-protected interest, will on its own support a finding that admission of tainted evidence would bring the administration of justice into disrepute. It is the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion [emphasis in original]

[279] In my view, this is one of those cases in which the Charter breach, occasioned by what I find can fairly be characterized as police negligence in obtaining the warrant to search a residential unit, is so serious that admitting the evidence would bring the administration of justice into disrepute. As I have already explained, the ITO that was relied upon to obtain the search warrant contained multiple errors and seriously mis-cast the evidence that the police had obtained. It enabled the police to obtain a warrant that should never have been issued to search a private residence. While I do not find the impact on Mr. Singh or Mr. Young to be significant, and I fully appreciate the effect this will have on a trial on the merits of the very serious charges, the long-term reputation of the administration of justice necessitates distancing the justice system from the evidence obtained by police in this manner. The evidence from the Curran Place unit cannot be admitted.

Conclusion

[280] I have concluded that the only Charter breach was in respect of the issuance of the search warrant for the Curran Place unit, which resulted in an unauthorized search of it, and a s. 8 violation. I have concluded that pursuant to s. 24(2) of the Charter, all of the evidence obtained in that unit should be not be admitted.

Woollcombe J.

Released: March 2, 2020

COURT FILE NO.: CR-19-1518CRIMJ(P) 359/17

DATE: 20200302

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and –

MIKAEL SINGH AND JAMESON YOUNG

RULING ON APPLICATION TO EXCLUDE EVIDENCE

PURSUANT TO SS. 8, 9, 10(b) AND 24(2) OF THE CHARTER

Woollcombe J.

Released: March 2, 2020