Court File and Parties

Court File No.: 18-F5221 Date: 2020/01/15 Court of Ontario, Superior Court of Justice

Re: R. v. Guede Ahmed-Hassan

Before: Mr. Justice C. MacLeod

Counsel: Malcolm Savage, for the Crown (Respondent) Michael Davies & Meaghan McMahon, for the Accused (Applicant)

Heard: December 12, 2019

Decision and Reasons

1This is a pre-trial application in which the accused seeks to exclude the evidence against him pursuant to s. 24 (2) of the Charter. That evidence was seized on February 6, 2018 after the applicant was stopped by the police for a minor traffic infraction. During his subsequent arrest and a search of his person and vehicle, the police discovered a loaded hand gun, ammunition, cash, marijuana and drug paraphernalia. That evidence is central to the trial which is currently scheduled to proceed before a judge alone in March, 2020.

2The applicant now faces 15 charges including numerous firearms offences, drug possession and trafficking, and resisting arrest. The applicant argues that the actions by the police were tainted with racial profiling and involved significant breaches of his guaranteed rights and freedoms. The Crown opposes the application on the basis that there is no evidence of racial profiling, no significant Charter breaches and in any event that the circumstances do not warrant exclusion of the evidence.

3This application requires an analysis of the police conduct to determine if there were Charter breaches, consideration of the gravity and impact of those breaches if so, and determination of the appropriate remedy. Section 24 (2) requires the court to determine if the administration of justice would be brought into disrepute by the admission of tainted evidence under all of the circumstances. It is a balancing exercise in which the public interest in discouraging police misconduct and upholding all citizens’ constitutional rights must be weighed against the public interest in peace and order by the suppression and punishment of crime.

4As I will explain, I do not agree with the submission that there were nine serious Charter breaches. I agree that the courts must be vigilant in detecting and discouraging racial profiling and are the guardians of Charter values and guarantees. I also agree that the police and other agents of the state owe all Canadians a scrupulous concern for their individual rights. On the facts of this case, however, and on the evidence available to me at this time, the Charter breaches were minimal in nature while the probative value of the evidence and the gravity of the offences weigh heavily against exclusion.

5Evidence that the accused was carrying a loaded handgun while operating a vehicle containing drugs, cash and paraphernalia associated with drug dealing should not be easily excluded and I decline to make such an order.

The Facts

6The only evidence before me on the application is the evidence of the police officers along with documentary evidence compiled or retained by the Ottawa Police Service. The applicant did not give evidence, nor did he call any witnesses. For purposes of the application, many of the facts are uncontested. I am however asked to view the police evidence with scepticism, and I am encouraged to pay specific attention to discrepancies in that evidence and inferences to be drawn from the context. I am asked to take judicial notice of the prevalence of racial profiling by law enforcement agencies and to interpret events in light of that concern.

7It is not disputed that just after 1:00 a.m. on February 6th, 2018 the applicant was operating his 2005 Accura in an area of Vanier known to the police as a high crime area. He had two passengers in the vehicle. Constable Brodie Muldoon was alone in a police cruiser on general patrol. Constable Muldoon saw the vehicle back out of a driveway and drive east on Prince Albert St. He noticed that it had its running lights on but not the headlights or tail lights. The vehicle turned left on Alesther St. and then right on Donald St. On Donald St., the applicant turned on the headlights. Constable Muldoon had been following the vehicle and decided to pull it over to advise the driver that it was a Highway Traffic Act infraction to drive at night without headlights. While he could have written a ticket, it is his evidence that his intention was simply driver education.

8He pulled the vehicle over on Donald St. in a well lit area. While following the vehicle, Const. Muldoon had run a query on his police computer and had retrieved information about the name and address of the registered owner, Guede Ahmed-Hassan. He would have been aware from this that the driver was most likely not European although it is his evidence that he could not see the occupants of the vehicle other than as silhouettes. Upon stopping the vehicle and obtaining the driver’s licence, ownership and insurance, he noted that it was consistent with the information generated by the computer. Const. Muldoon denies that the race of the applicant played any part in his decision to stop the vehicle or his subsequent actions, decisions or exercise of discretion.

9Upon stopping the vehicle and speaking to the driver, Constable Muldoon detected a strong odour of burnt marijuana and was able to see a sizeable flake of marijuana in the driver’s beard. Although Constable Muldoon had not called for back up, by that time a second officer had arrived and stopped her police cruiser at the scene. The second officer, Constable Christine Tardiff, also noticed particles of marijuana and detected a marijuana odour.

10Constable Muldoon went to speak to one of the rear passengers who had not been wearing a seat belt. He then returned to the driver and advised him that he was arresting him for possession of marijuana. It is his evidence that he probably would not have charged him for the fleck of marijuana in his beard if he had found nothing else but he had grounds to arrest and he suspected from the odour and the visible marijuana that there was likely more marijuana in the vehicle.

11Upon being advised that he was to be arrested, the driver of the vehicle refused to exit the vehicle and attempted to close the window on the officer’s arm. The officers then managed to open the door, turn off the car and remove the driver from the vehicle. He was not violent with the officers but he resisted and he was clutching a bag he had around his neck. The officers put the applicant on the ground. Constable Muldoon cut the strap of the bag and removed it. The driver was then handcuffed. Meanwhile the other occupants of the vehicle were apparently yelling at the officers, getting in their way, and recording them on cell phones.

12Shortly thereafter, Constable Muldoon found the firearm and a quantity of marijuana in the bag. The applicant was then placed in the rear of the Constable Tardiff’s vehicle and given his rights. The applicant immediately indicated that he wished to call a lawyer and was told by Constable Tardiff that he could do so at the police station.

13On the way to the police station, the applicant began to hyperventilate. Constable Tardiff then called an ambulance and the applicant was transported to the hospital. He was at the hospital for several hours in a private area handcuffed to a hospital bed. No statements were taken or evidence obtained from his person during that time but he was not given the opportunity to contact counsel.

14In the early morning, the applicant was advised that during a search of the vehicle, a quantity of cash, more marijuana, scales and plastic bags had been seized. He was advised he was being arrested for possession for the purposes of trafficking in addition to the other offences and he was taken to the police station where he was able to call counsel just after 7:00 a.m. It was approximately six hours from the time he was first arrested until he was able to call a lawyer at the police station.

15The accused argues that the events of the evening including stopping the vehicle on a Highway Traffic Act pretext involved racial profiling. He argues that the HTA stop was a pretext for an illegal arrest and the arrest was a pretext for an improper warrantless search. He argues that the delay in reading him his rights and in permitting him to exercise those rights are significant Charter breaches on their own. In combination, his counsel identifies nine Charter breaches and argues that they are so significant that the only effective remedy is exclusion of the evidence.

The Impact of Racial Profiling

16Racial profiling exists when the police unfairly target racialized individuals for scrutiny or enforcement based on stereotypical assumptions that the group to which the individual belongs is more likely to be involved in criminal activity. It has been identified as an unacceptable method of policing which undermines confidence in law enforcement and sets up an unhealthy distrustful relationship between the police and the particular community. Racial profiling is widely regarded as one of the reasons that prison populations contain more black, indigenous and other minority groups than the general population.

17Race based law enforcement offends the guarantees of equal protection before the law and of protection from unreasonable search and seizure underlying our criminal law and guaranteed by the Charter. It is fundamental that all persons in Canada are entitled to equal and non-discriminatory protection and application of the law as guaranteed by s. 15 of the Charter. Any breach of s. 15 will inform the analysis of whether ss. 8 or 9 rights have been breached and therefore whether a search and seizure is unreasonable or a detention is arbitrary.

18A pretext stop is one in which a motorist is stopped for a minor traffic violation or for some other pretext when the real purpose is to conduct a search of the motorist or the vehicle to determine if they are engaged in criminal activity. It is a pretext because there may be no reasonable and probable grounds to suspect criminal activity, such grounds being a precondition to a lawful warrantless search. This would potentially be a breach of Charter rights in any event because the police do not have the power to conduct random illegal searches of members of the public to ascertain if they are involved in criminal activity. [1] Such a breach would be compounded if it is combined with racial profiling.

19Random stops of motorists directed to a legitimate purpose such as RIDE programs are justifiable and of course it is legitimate for the police to stop motorists for traffic infractions or erratic or potentially dangerous driving. During legitimate stops it may be that the police form reasonable and probable grounds for a warrantless search or an arrest for apparent criminal activity. But a change in purpose from traffic enforcement to a criminal investigation requires the police to advise the motorist that he or she has now been detained as a potential suspect in a criminal investigation and to fully respect their constitutional rights. If the officer’s suspicions are driven by racial profiling rather than by proper and lawful factors, the search and seizure will be unreasonable.

Analysis

Racial Profiling & Stopping the Vehicle

20The first question is whether the traffic stop was legitimate or was a pretext stop driven by racial profiling? It is conceded there is no direct evidence of profiling. It is also conceded that the applicant bears the onus of proof for purposes of the application.

21I am quite prepared to take judicial notice of the pernicious and widespread nature of racial profiling. I am conscious of my duty to scrutinize evidence with this possibility in mind. I am also very aware that the OPS itself has adopted policies prohibiting race based law enforcement and that on occasion this and other courts have reached the conclusion that evidence tainted by such profiling must and should be rejected. In particular, the Court of Appeal has spoken powerfully on this issue in R. v. Duhdi, 2019 ONCA 665. In paragraph 63 of that decision, the court states that “where race or racial stereotypes are used to any degree in suspect selection or subject treatment, there will be no reasonable suspicion or reasonable grounds”. [2]

22As the court makes clear, racial profiling may be inferred from all of the circumstances and the judge at first instance must be alert to the fact that circumstantial evidence will often be the only evidence available. Moreover, it is possible and even likely that racial profiling occurs from unconscious biases and is not always conscious or overt. The judge must closely examine all of the circumstances to determine if stereotyping explains the actions and decisions of the officer. [3] Nevertheless, it does not follow that every interaction between the police and a member of a minority group is presumptively race based policing. [4]

23This is not a case such as Duhdi where the officer demonstrated an overt attitude of racial bias and had decided to investigate Mr. Duhdi even though he was not the original target of surveillance. In Duhdi, even though the police denied that the accused was stopped for the purpose of carrying out a drug search, the arresting officer had already voiced his view on the radio that the accused was “definitely a drug dealer”. Nothing of that sort occurred here.

24I heard evidence from Const. Muldoon. He was an officer on general patrol in Vanier at the time. His duties included enforcement of the HTA. He denied that any race based decision making entered into his calculations. I accept that evidence.

25I am asked to find that unconscious bias may have motivated the decisions and actions of the officer. I am also asked to weigh minor differences between his notes, his Investigative Action Report, his testimony at the preliminary inquiry and his testimony at the hearing as reasons for questioning the accuracy and verity of his evidence. I am urged to find that the delay in stopping the vehicle demonstrates that the vehicle was not stopped for safety concerns but was only stopped once information was available to the officer which included the race of the owner of the vehicle.

26I do not draw those inferences. I accept Const. Muldoon’s evidence that he stopped the vehicle because it had been driving after dark on a dimly lit street using only its running lights. I accept that it is standard and prudent practice to run a query on a licence plate of a vehicle prior to stopping it if that is possible. I also accept the officer’s testimony that he felt it prudent to pull over the vehicle in a well lit area rather than on a darkened side street. I do not accept the inference that he allowed the dangerous activity to continue until he discovered that the driver was not European. I do not find that the slight difference in his answers concerning the exact moment when he decided to stop the vehicle is significant. [5] The evidence does not persuade me that the stop was the result of racial profiling. To the contrary, I accept the evidence that the original purpose of the stop was to discuss the HTA violation.

27I am also not persuaded that race motivated or influenced the subsequent decisions of the officers. The smell of marijuana from the vehicle and the fact that marijuana fragments or flecks could be seen on the driver were sufficient grounds for detention and arrest. In my view, this was not arbitrary detention in violation of s. 9 rights.

Charter Breaches

28Since I have not concluded that the traffic stop was a pretext stop, it was legal. Faced with the odour of marijuana as well as visible marijuana in the applicant’s beard, it was also lawful to arrest the driver, to carry out a search incidental to arrest and to begin a drug investigation.

29The seizure of the satchel was also incident to arrest while the applicant was resisting arrest and clutching the satchel. The behaviour of the applicant caused the constable to be concerned about the contents of the satchel, to confiscate it and to examine the contents. It was in this manner that the loaded handgun was found.

30There were potential Charter breaches. I agree that when a routine Highway Traffic Act stop, particularly one in which the primary objective is driver education, changes character and becomes a criminal investigation, the officer must approach the matter differently. A person who is detained or arrested as the subject of a criminal investigation has rights that are significantly different from a motorist who is stopped to be cautioned for a regulatory offence. In particular, of course, the object of a criminal investigation has the right to be advised if he is being detained or arrested, the reason therefore and to be advised of his right to remain silent and to consult counsel. [6]

31In this case there was a delay between the officer’s observation of the odour and the marijuana particles, which formed the basis for arresting the driver, and the actual arrest. The delay was occasioned because Constable Muldoon first went to the rear seat passenger who was not wearing a seatbelt and asked for his identification. Meanwhile Constable Tardiff had also arrived and she too smelt the odour of marijuana and saw marijuana particles on the driver and in the vehicle. In an ideal world, the driver would have been advised immediately when the officer’s objective changed from driver education to investigating a crime and a potential arrest.

32There was also a delay between the time of the arrest and the time when the applicant was advised of his Charter rights. He was not given his rights by Constable Muldoon when he was arrested but rather this occurred six minutes later after he had been placed in the rear seat of Constable Tardiff’s police cruiser.

33In my view these delays were explicable and justifiable. Firstly, the officers had to manage a vehicle with three occupants. Various decisions had to be made. There was reason to speak to the passenger who was not wearing a seatbelt and the decision to arrest the driver may not have formed instantaneously. Once the arrest was underway, according to the evidence, the applicant resisted, attempting to close the vehicle window on the officer’s arm. He then behaved suspiciously in clutching the satchel and refusing to co-operate. The other occupants of the vehicle became confrontational.

34It is all very well to sit in a court room months after the event and to parse and dissect what took place at the roadside. It is quite another to be a police officer in the middle of the night in a high crime area faced with three individuals who appear to be engaged in criminal activity. Officer safety is always a consideration. When faced with an individual who appears to be resisting lawful arrest and aggressive behaviour by the other occupants of the vehicle, numerous decisions have to be made in split seconds. The Charter does not demand a standard of perfection but one of reasonableness.

35The driver was advised he was being arrested for possession of what was at the time a prohibited substance. He resisted arrest. Despite that, and the confusion that then ensued, he was given his rights six minutes later. Under the circumstances, the delay was not significant. He gave no inculpatory statements during that time period. Had he been given his rights sooner, it would not have prevented the search incident to arrest or the subsequent search of the vehicle.

36On the evidence before me on this application, I cannot conclude that the manner of the arrest involved disproportionate force or was unreasonable. I accept the evidence of Constable Muldoon and Constable Tardiff that they smelt a strong odour of marijuana and saw particles of marijuana on the driver and in the vehicle. This was a justification for arrest for possession and also formed reasonable and probable grounds to suspect there was more marijuana in the vehicle. The fact that charges might not ultimately have been laid had the driver co-operated and the suspicion proven incorrect, does not make the arrest unlawful.

37Once the driver attempted to close the window on the officer’s arm and refused to leave the vehicle even when told he was being arrested, what then ensued appears from the only evidence before me to have been a reasonable use of force. Constable Muldoon testified that once the driver began to resist and from the way he was clutching the satchel, he became concerned about the possibility of a weapon. The arrest was forceful but there is no evidence before me that it involved gratuitous or unreasonable force.

38There was a significant delay between the time the accused was first advised of his rights and the time at which he was ultimately able to contact counsel. In fact, it was more than six hours and in normal circumstances that would be a clear breach of Charter rights. There was also delay between the search of the vehicle and the accused being advised that he was now being arrested on suspicion of trafficking and not for simple possession.

39The delay is explained by the necessity of taking the applicant to the hospital. Constable Tardiff testified that after giving the accused his rights and being advised he wanted to contact a lawyer, she advised him she would provide him with that opportunity at the police station. Almost immediately thereafter the applicant began hyperventilating, an ambulance was called and he was taken to emergency. He spent the night at the hospital under police detention and was only able to call a lawyer from the police station early in the morning.

40There was an inference in the evidence or in the questions posed to the officers that they or the paramedics believed the applicant was faking breathing difficulties. The evidence does not establish this one way or the other and there was no medical evidence before me to assess the actual medical condition of the applicant. Little turns on this. It was appropriate to take him to the hospital for medical treatment if he appeared to be in distress.

41The concern arises because there was no effort to permit the accused to contact counsel from the hospital. There was testimony about the difficulty in doing so. While under arrest at the hospital, the applicant was handcuffed to a hospital bed in a private and secure area. In the view of the officers, he could not simply be unhandcuffed, given access to a phone and then left in privacy without supervision. At the police station, by contrast, there are facilities in place for persons under detention to be put in touch with a lawyer of their choice or a legal aid lawyer and for a private telephone conversation.

42There is no evidence that the accused was demanding to exercise his right to counsel while at the hospital. There is certainly no evidence that he was interrogated or that any self-incriminating evidence was extracted from him during that period. The evidence is that he was not communicative during this period. Nevertheless, in my view, once the applicant had been advised of his right to contact counsel and had indicated that he wished to do so, his right had to be respected and the matter should have been approached with more urgency. If prisoners must be detained for hours at the hospital but are conscious and not in need of immediate medical intervention, the arresting officers should have made arrangements for the applicant to contact counsel. In my view, the failure to do so was a breach of s. 10 (b) of the Charter.

43This breach, while significant, is not at the most serious end of the spectrum. Some delay was reasonable given the need to take the applicant to the hospital. He was not questioned or interrogated further prior to consulting counsel. None of the evidence I am asked to exclude was obtained in reliance on the Charter breach. All of that evidence is real evidence incident to search and seizure. None of the evidence consists of admissions. While this does not necessarily limit the ability of the court to exclude the evidence under s. 24 (1) of the Charter if that is the appropriate remedy, it is one way of measuring the seriousness of the breach. Furthermore, if the evidence sought to be excluded was obtained independently of the delay, it may not be evidence that raises the presumption of exclusion set out in s. 24 (2).

Application of s. 24 of the Charter

44Section 24 of the Charter arms the court with the power to award a remedy for Charter breaches. One such remedy is exclusion. The section reads as follows:

Enforcement

Enforcement of guaranteed rights and freedoms

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Exclusion of evidence bringing administration of justice into disrepute

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

45As discussed above, even if the court concludes there has been a Charter breach, exclusion of evidence is not automatic. Even evidence obtained as a direct result of a Charter breach will only be excluded if under all the circumstances the admission of the evidence would bring the administration of justice into disrepute.

46This is a balancing exercise. The Charter articulates and enshrines the fundamental values of the common law which protect the rights of individuals against arbitrary and unfair state action. Those values are rightly regarded as the heart of our criminal law and they must be jealously protected by the courts who are the guardians of justice and the bulwark against injustice. So important are these fundamental rights that in an appropriate case a person who is clearly guilty of a crime will be acquitted because the evidence is excluded.

47The objective of the Charter however is not to provide technicalities that allow the guilty to go free. It is to preserve our freedoms by ensuring state actors are discouraged from abusing those freedoms and taking illegal shortcuts in the name of suppressing crime. It demeans the Charter and may erode public support for those values if it is used inappropriately. The more serious the offence and the more critical the evidence, the more significant the Charter breach would have to be to justify exclusion of the evidence as the appropriate remedy.

48In R. v. Grant, 2009 SCC 32, [2009] 2 SCR 32, the Supreme Court of Canada established a three-part framework for assessing and balancing the impact of admitting evidence obtained in violation of Charter rights. The question is the long term effect on society’s confidence in the justice system. Firstly, the court must consider the seriousness of the Charter infringing state conduct. Secondly, the court must consider the impact of the breach on the Charter protected interests of the accused. Thirdly, the court is to consider society’s interest in the adjudication of the case on its merits. [7]

49This third factor includes the gravity of the offence and the probative nature of the evidence although it is important that this consideration is not allowed to automatically trump the other two. Where the police conduct represents a serious departure from well-established constitutional norms, for example, and the evidence was uncovered in circumstances that substantially impact the Charter rights of the accused, it may be necessary to exclude evidence even if that has the effect of substantially destroying the crown’s case. [8]

50In a recent decision, the Supreme Court adopted the dissenting reasons of Brown JA in R. v. Omar, 2018 ONCA 975. [9] Brown JA had rejected the notion of an overarching rule as to how the balance was to be struck and rejected an interpretation of Paterson which would effectively gut the third branch of the Grant test. He held that while it is fundamental to our social order that the police perform their duties in accordance with the law and they respect Charter rights, it is also fundamental that citizens can walk the public streets in the exercise of their Charter protected liberty rights without fear of gun violence. Society’s interest in the adjudication on the merits is most acute when the offence is one that involves public safety.

Conclusion

51As outlined above, I am not persuaded on the evidence before me that this was an illegal stop tainted by racial profiling and I do not agree that the arrest was illegal and unlawful.

52The Charter concerns arise from the delay in advising the accused of his Charter rights and the subsequent delay in permitting the accused to exercise his right to contact counsel. In my view any ostensible Charter breach inherent in a brief detention and arrest before the accused was given his Charter rights is readily explicable by the circumstances that existed at the time. While I am concerned with the delay in providing access to counsel once the accused was taken to hospital, I consider that Charter breach to be at the minor end of the spectrum in all of the circumstances. Assuming the vehicle stop and the arrest for possession were lawful, the evidence was all uncovered as a consequence of lawful searches carried out incident to those events and none of the evidence was obtained as a result of the Charter breaches.

53Even if I am in error concerning the number of breaches or the significance of prolonged detention without the ability to exercise the right to counsel, however, I would not exclude this evidence under s. 24 (1) or s. 24 (2).

54I regard the gravity of firearms offences, the threat to public safety and the probative value of the evidence as significant considerations. As was the case in the Omar decision, the interest of society in adjudication of the merits of a crime involving the safety of the community outweighs the societal interest in suppressing evidence obtained in circumstances that breach the Charter.

55In my view it would require a very significant Charter breach directly related to the discovery of the evidence to justify exclusion of this evidence. Even in that case, it might not be all or nothing. For example, it might be possible to exclude the evidence obtained from the trunk of the vehicle but not the handgun seized on the person of the accused. On my view of the matter, however, it is not necessary to decide that point.

56In conclusion, the application to exclude evidence is dismissed.

Mr. Justice C. MacLeod Date: January 15, 2020

Footnotes

[1] See Brown v. Durham Regional Police Force, (1998) 43 O.R. (3d) 223, 131 C.C.C. (3d) 1 (CA) [2] R. v. Duhdi, 2019 ONCA 665 [3] Supra, paras 59 – 75 [4] Supra, para. 73 [5] See R. v. Gill, 2015 ONSC 7872 [6] Canadian Charter of Rights and Freedoms, ss. 7, 10 & 11 [7] R. v. Grant, 2009 SCC 32, [2009] 2 SCR 32 [8] R. v. Paterson, 2017 SCC 15, [2017] SCR 202 [9] R. v. Omar, 2018 ONCA 975, overturned substantially for the reasons articulated by Brown JA, 2019 SCC 32 – oral decision.