Court File and Parties

COURT FILE NO.: CR-19-90000626 DATE: 20201016 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

MUHAMMAD HASSAN Applicant

COUNSEL: Victoria Rivers, for the Crown, Respondent Catherine Szpulak, for the Applicant

HEARD: October 5-7, 2020

RULING ON APPLICATION UNDER SECTIONS 8, 9, 10(b) and 24(2) OF THE CHARTER

HIMEL J.

[1] Muhammad Hassan is charged with the offence of possession of a Schedule 1 substance for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act. He has elected to be tried by a judge sitting without a jury.

[2] Mr. Hassan brings an application for an order declaring that his rights protected by ss. 8, 9, and 10(b) of the Canadian Charter of Rights and Freedoms have been breached, and for an order that the evidence of 177 grams of cocaine, four cell phones, a digital scale, $210 in Canadian currency and drug packaging found in a satchel when he was arrested be excluded under s. 24(2) of the Charter. Crown counsel opposes the application and the remedy sought and asks that the application be dismissed. The case proceeded before me as a blended voir dire.

[3] In addition to the viva voce testimony called, counsel filed some admissions which were made exhibits at this hearing. It is agreed that Mr. Hassan is the party arrested by Toronto Police and that police found 176.982 grams of cocaine in his possession. The cocaine was in three bags. An analyst from Health Canada confirmed the nature of the substance. There are no issues with respect to notice of the Certificate of Analyst, no issue the cocaine was possessed for the purpose of trafficking and there are no issues of continuity. Further, it is admitted that P.C. Khera and P.C. Sayed Zadeh arrived on scene at the East York Town Centre at 1:53 p.m. and that Officer Khera took custody of the applicant from Sergeant Parmar. Sergeant Parmar advised that rights to counsel had already been given to Mr. Hassan. He did not indicate to P.C. Khera whether Mr. Hassan wanted to speak to a lawyer, a lawyer’s name, nor that he wanted to speak to his mother. After Mr. Hassan was paraded at 55 Division, no attempts to obtain information about whether Mr. Hassan wanted to speak to a lawyer and no attempts to contact counsel for Mr. Hassan were made by the transporting officers.

[4] The following are my reasons on the application.

OVERVIEW OF THE POSITIONS OF THE PARTIES

[5] The applicant asserts that police involved in the investigation and in his arrest violated his rights under sections 8, 9, and 10(b) of the Charter.

[6] The applicant takes the position that his s. 9 rights were breached because there were no reasonable and probable grounds to arrest him and he was arbitrarily detained. As a result, there was no justification for a search and his s. 8 rights were violated when police conducted a warrantless search of his person without common law or statutory authority to do so. Finally, he argues that police breached his s. 10(b) rights by not providing him with an opportunity to consult with counsel within a reasonable period of time. He also argues that police should not have continued to speak with him and discuss becoming a confidential informant nor should they have pressed him for information prior to him exercising his right to counsel.

[7] As for the remedy, the applicant takes the position that the evidence seized (the 177 grams of cocaine, four cell phones and the $210 in Canadian currency, and a digital scale), should be excluded from the evidence at trial under s. 24(2) of the Charter, as the admission of the evidence would bring the administration of justice into disrepute.

[8] The Crown opposes the application and asks that it be dismissed and that the evidence in the satchel be admitted at trial. The Crown argues that police had an objectively reasonable and subjective belief that the applicant had committed a criminal offence and, therefore, was arrestable. Police do not have a duty to facilitate access to counsel before discussing whether an accused wants to become a police informant. The failure to connect the applicant with counsel of choice did not result in a breach of his s. 10(b) Charter rights. The Crown takes the position that police assisted the applicant in speaking to duty counsel when his counsel of choice could not be reached. In this case, there were no utterances or statements made by the applicant while in custody of the police that Crown counsel is relying upon. While the Crown concedes there was a delay of more than two hours, the implementation delay of the right to counsel should not result in the exclusion of evidence as the breach was not causally connected to the seizure of drugs.

[9] Even if there were breaches of the applicant’s rights as protected by the Charter, the Crown takes the position that the evidence should not be excluded as the admission of the evidence obtained in these proceedings would not bring the administration of justice into disrepute.

FACTUAL BACKGROUND

[10] On November 9, 2018, police at 55 Division of the Toronto Police Service received information from a confidential source that Muhammad Amaar Hassan was trafficking drugs and was in possession of a firearm. They were also told that Mr. Hassan frequented the Thorncliffe Park area and that he drove a black Hyundai Sante Fe vehicle with licence plate CFCF607. Detective Constable Hayford contacted officers from the Guns and Gangs Task Force to seek their assistance. Officers from 55 Division continued with the investigation. Their role was to locate the applicant, conduct surveillance and advise Guns and Gangs if they had found Mr. Hassan.

[11] Following the briefing at 55 Division, police attended at the Thorncliffe Park area and located the applicant at 12:00 p.m. at the rear of 75 Thorncliffe Park Drive, Toronto as he was walking towards a black Hyundai Sante Fe vehicle. They observed the applicant get into the vehicle and drive to Lesmount Avenue where they observed him stop and pick up an unknown male. The applicant drove a short distance and the unknown male got out of the car. Police observed the male lean into the passenger driver side window and then step away. Officer Fardell saw the unknown male walk away but no officer followed him. Officers followed the applicant to the East York Town Centre where he was seen entering the mall. An officer went into the mall to continue surveillance. Guns and Gangs Task Force members arrived and took control of the investigation.

[12] At approximately 1:30 p.m., police observed the applicant exit the mall carrying a satchel and walking to the vehicle he had driven. Sergeant Parmar called for a takedown and police arrested the applicant on a charge of possession of a firearm. Officer Parmar removed the black satchel from the applicant’s shoulder and passed it to Officer Gillespie. Officer Gillespie located 177 grams of white powder, Canadian currency, cell phones and a scale in the satchel. When police observed the contents of the bag, they advised the applicant that he was arrested for possession of a Schedule I substance for the purpose of trafficking.

[13] Police handcuffed the applicant, placed him in the rear of an unmarked police vehicle and gave him his right to counsel. The applicant said he wanted to speak with his mother and a lawyer whose name was Jeffery. He said his mother could provide the telephone number for the lawyer. The applicant remained in the police vehicle for 20 minutes until transport officers arrived. Police transported the applicant to 55 Division where they arrived at 2:16 p.m. They paraded him in the booking hall at 2:30 p.m. and conducted a Level III search. They escorted the applicant to an interview room at 2:38 p.m.

[14] Sergeant Parmar called the applicant’s mother at 4:20 p.m. and at 4:39 p.m., he left a message for the applicant’s counsel at the telephone number 647-996-0725. The officer made that one attempt to reach counsel. At 5:37 p.m., Sergeant Parmar called duty counsel and the officer put the applicant in touch with duty counsel. Mr. Hassan was detained overnight and released from custody the following day.

THE CHARTER APPLICATIONS

[15] The applicant argues that his ss. 8, 9, and 10(b) rights were infringed. The onus to establish breaches of the Charter rests on the defence on a balance of probabilities. With respect to s. 8, once the applicant establishes that the search was without a warrant (which is the situation here), the onus shifts to the Crown to demonstrate that the search was reasonable and justified in the circumstances. A search will be reasonable if it is authorized by law, the law itself is reasonable, and the manner in which the search was carried out is reasonable: see R. v. Collins, [1987] 1 S.C.R. 265, at p. 278.

[16] For the reasons that follow, I find that the applicant has satisfied his onus regarding the breaches of ss. 8, 9, and 10(b).

WAS THERE A BREACH OF THE APPLICANT’S RIGHTS UNDER s. 9 OF THE CHARTER?

Position of the Defence

[17] The applicant submits that police breached his s. 9 rights as they did not have reasonable and probable grounds to arrest him. Counsel argues that police must have reasonable and probable grounds to believe that the applicant has committed or is about to commit a criminal offence. The grounds must be subjectively held and must be reasonable, that is, based upon objectively discernible facts. A mere suspicion or possibility is not enough to meet the standard of reasonable and probable grounds.

[18] Counsel for the applicant takes the position that the police did not have reasonable and probable grounds to arrest the applicant on November 9, 2018. There is no evidence about the tip of the confidential source. It is not possible to determine whether the information was recent, credible or compelling. Furthermore, the police did not make observations that would objectively meet the reasonable and probable grounds threshold. They may have had a suspicion about Mr. Hassan’s interaction with the unknown male but the confidential tip along with the interaction with the unknown male do not constitute reasonable and probable grounds. In the case at bar, Sergeant Parmar was the arresting officer but was not involved in receiving the initial information. While the officer may rely on what is relayed to him, he must still make an independent assessment of the circumstances and determine whether there are reasonable and probable grounds. As a result, the detention and arrest were unlawful.

Position of the Crown

[19] Crown counsel submits that where police honestly believe on reasonable grounds that a person has committed an indictable offence, the officer can make an arrest without a warrant: see s. 495(1)(a) of the Criminal Code. There is both a subjective and objective component to the reasonable grounds inquiry and the question to ask is whether, equipped with the facts as a whole, a reasonable person standing in the shoes of the police (and with the same knowledge, experience, and training), would have believed that grounds existed. The Debot criteria apply to the confidential informant tip, that is whether the tip was compelling, credible and corroborated. Weakness in one factor may be compensated by strengths in the other two.

[20] Whether there are subjective and objectively reasonable grounds to arrest is determined by looking at all the circumstances: see R. v. Storrey, [1990] 1 S.C.R. 241. On all the information, with an objective assessment by an experienced officer who is entitled to draw inferences, there were objective grounds to arrest in this case. The information from the confidential informant was detailed (included a brown satchel, the licence plate and type of car being driven, the geographical area and the drug specified along with the full legal name of the person), was corroborated by the police locating the vehicle in that geographical area and the police seeing what they believed to be a drug transaction and later seeing the person carrying a satchel. This led the officer to form an honest subjective belief as well as an objective belief that Mr. Hassan was committing a crime. The test is whether this belief is by a reasonable person standing in the shoes of the officer. It is not proof beyond a reasonable doubt or even balance of probabilities. Rather it is a test of an experienced officer with an honest and subjective belief applying common sense: see R. v. Canary 2018 ONCA 304, [2018] O.J. No. 1786 at para. 22.

[21] While there is no evidence about when the information was received from the confidential informant, weaknesses in one area may be compensated by strengths in another. Here, police had both a subjective and an objective basis to form reasonable grounds to arrest Mr. Hassan. Crown counsel also submits that should the court find there were no such grounds, I should find that there was an honest and mistaken belief by the officer who called the takedown and arrested Mr. Hassan.

The Law on [Section 9](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[22] Section 9 of the Charter provides as follows:

Everyone has the right not to be arbitrarily detained or imprisoned.

[23] Section 495 of the Criminal Code provides:

A peace officer may arrest without warrant

(a) person who has committed an indictable offence or

(b) who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;

[24] The purpose of s. 9 is to protect individual liberty from unjustified state interference. Police may act only to the extent that the law empowers them to do: R. v. Grant, 2009 SCC 32 at para. 20. The meaning of detention was considered in R. v. Therens, [1988] 1 S.C.R. 640. Detention is a compulsory restraint of liberty that is not an arrest. A state agent such as a police officer assumes control over the movement of a person by a demand or direction. An arbitrary detention is one which is “capricious, despotic, or unjustifiable:” see R. v. Cayer, [1988] O.J. No. 1120 (Ont. C.A.).

[25] A law, whether statutory or common law, authorizes and prescribes the limits on a detention and arrest. A lawful detention is not arbitrary within the meaning of s. 9 (Mann, at para. 20), unless the law authorizing the detention is itself arbitrary. Conversely, a detention not authorized by law is arbitrary and violates s. 9. In order for an arrest and detention to be lawful, police must have reasonable grounds to believe that an offence is being or has been committed. This requires that police must have observed conduct which, along with the rest of the circumstances, lends some objective justification to the officer’s subjective belief.

[26] In order to be a reasonable belief, it must be “that a reasonable person standing in the shoes of the police officer be able to see the grounds for the arrest.”: see R. v. Brown, 2012 ONCA 225, [2012] O.J. NO. 1569 at para. 14. As the court said in Brown, “The individual’s constitutional right to be left alone by the state cannot depend exclusively on the officer’s subjective perception of events regardless of how accurate that perception might be. The issue is not the correctness of the officer’s belief, but the need to impose discernable objectively measurable limits on police powers.”

Decision on [s. 9](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[27] In order to arrest Mr. Hassan without a warrant, police must have reasonable and probable grounds to believe that he has committed or is about to commit a criminal offence. Those grounds must be subjectively held by the officer and must also be reasonable. Reasonable grounds are based upon an objective standard of a reasonable person standing in the shoes of the officer: see R. v. MacKenzie, 2013 SCC 50 at paras. 62-3. In Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, the Supreme Court held at para. 177 that the reasonable grounds to believe standard consists of compelling and credible information that provides an objective basis and objectively discernible facts for drawing inferences as to the existence of factual circumstances.

[28] Counsel for the applicant argues that a mere suspicion or possibility is not enough to meet the standard of reasonable and probable grounds: see R. v. Morelli, 2010 SCC 8 at para. 37. Indeed, where confidential source information is relied upon by police to support the arrest, when weighing the evidence relied upon by police to justify a warrantless search, there are three concerns: was the information compelling, credible and corroborated? This must be considered with reference to the totality of the circumstances: see R. v. Debot, [1989] S.C.J. No. 118. In Debot, Justice Lamer wrote, at paras. 34–35:

Citing the decision of this Court in Eccles v. Bourque, [1975] 2 S.C.R. 739, Martin J.A. pointed out that the fact that the information Constable Birs received was hearsay from another officer did not preclude it from establishing probable cause. Martin J.A. also ruled, at p. 220, that the reputation of a person as a drug user and drug trafficker may be “a relevant factor constituting part of the total circumstances that induce a reasonable belief that the suspect has upon his person a prohibited drug” even although it would not by itself constitute reasonable grounds. The policy rule that excludes such evidence at trial has no application, he stated in determining probable grounds for an arrest or search.

Martin J.A. also held that even if Constable Briscoe did not, personally, have any information establishing reasonable grounds for a search, he was entitled to rely on the orders of a superior officer against a claim of arbitrariness as long as the superior officer had reasonable grounds to believe that the suspect had a prohibited drug in his possession. It would be unrealistic and impractical, Martin J.A. stated, to require a police officer to obtain from his or her superior all the information supporting the order to search a person suspected of the commission of a crime especially where the suspect may be fleeing from the scene.

[29] The circumstances in this case are such that during the initial briefing, police were told that there had been a tip from a confidential informant that the applicant was in possession of a firearm and was trafficking in cocaine. Officers were also given the applicant’s date of birth and that he stayed in the Thorncliffe Park area and drove a black Sante Fe Hyundai vehicle with licence plate CFCF607. From the evidence led, it is not possible to determine whether the tip was recent, credible or compelling. The information was detailed and some of the detail became compelling as the situation unfolded.

[30] The officers left the police briefing and headed out to the area of Thorncliffe Park. Officer Besco, who was in an unmarked police vehicle, received directions over the radio that Mr. Hassan’s car had been located in the area. The officer was able to follow the applicant at Lesmount Avenue and observed the vehicle stop and pick up a passenger. He did not see any transaction take place and agreed that there was nothing indicative of drug dealing. Nor was there anything about the manner of driving of Mr. Hassan. Officer Besco had the information outlined from the briefing during which there was no mention of a black satchel.

[31] Officer Besco agreed in cross-examination that he did not have reasonable grounds to arrest Mr. Hassan when he left the briefing. His goal and that of the other officers was to go out and locate the applicant and to conduct surveillance and see if grounds could be formed. He had no involvement with the take-down and does not recall seeing a search of the vehicle. When he returned to the station for a de-briefing following Mr. Hassan’s arrest, he does not remember any discussion of right to counsel and who would be responsible for implementing the right to counsel for Mr. Hassan.

[32] Officer Fardell was also a member of the Neighbourhood Enforcement Team (NET) at 55 Division and he has experience in drug investigations. When he reported for work on November 9, 2018, he was told by Detective Constable Hayford about a drug and firearm investigation and he prepared a briefing package and attended the briefing. He had received the same information about Mr. Hassan including his date of birth, that he drove the black Hyundai Sante Fe with licence CFCF670 and that he frequented Thorncliffe Park. He was given the information that Mr. Hassan was going to be trafficking cocaine and that he was in possession of a firearm. He also understood that his role was to locate Mr. Hassan and make observations and if they found him, to contact the Guns and Gangs Task Force. He believed that he had been told that the firearm would be in a brown satchel and he testified that such a satchel is commonly used to hold a firearm and drugs.

[33] Officer Fardell received information that a member of the team had located Mr. Hassan enter the motor vehicle and begin driving at 12:07 p.m. There was no mention that Mr. Hassan was wearing a satchel. Officer Fardell joined the convoy of officers who were conducting surveillance of the vehicle. At 12:09 p.m., he received information that an unknown male had been picked up at Lesmount Avenue and that the car was heading to Plains Road. Officer Fardell observed the vehicle as it was driving south on Lesmount to go westbound on Plains Road. He observed the car stop and the male get out of the vehicle and lean over the window briefly as if he was involved in a conversation with Mr. Hassan. The officer could not see what happened in the vehicle or whether there had been any exchange. He saw the male walk away and look to his waist and put his hand in his right pocket. The whole interaction took 30 seconds.

[34] Officer Fardell believed from his training that there had likely been a drug transaction but he did not see a hand to hand transaction and he didn’t make any notes about this. While he may have said the words, “hand to hand transaction” over the police radio, in his testimony, he said that is “lingo” and he doesn’t know what he said. It was Detective Constable Hartford who would have made the notes. He said in his evidence that he would not have arrested Mr. Hassan for what he had observed. Then he saw Mr. Hassan’s vehicle pull over to the curb at the Shopper’s and that is when other officers took over as Mr. Hassan pulled into the shopping plaza of the East York Town Centre. Guns and Gangs Task Force had been contacted at 12:15 p.m. and they had taken over surveillance and did the arrest of Mr. Hassan. Officer Fardell did not search the vehicle after Mr. Hassan was arrested and he did not see anyone else search it. He was present when the vehicle was towed to the police station. ‘

[35] Officer Michael Gillespie worked in the Guns and Gangs Task Force for six years. He testified that he received information from D.C. Hayford that a confidential source provided information that there was a person of interest dealing drugs and in possession of a firearm stored in a brown satchel which he said is comparable to a “man’s purse”. They received the name of the person, the date of birth, the vehicle he drove and the area he frequented. He created a briefing package and briefed the team at 12:17 p.m. He was not aware where the information came from. He was told that 55 Division officers were conducting surveillance but that they were short-staffed and requested assistance in surveillance and because it was a firearm investigation.

[36] Officer Gillespie headed to the area of Thorncliffe Park and while communicating with 55 Division officers, learned that Mr. Hassan had been located. He drove to East York Town Centre where he arrived at 1:03 p.m. He was advised that the person had gone into the mall and he observed that the vehicle was empty. He set up near it and waited. At 1:30 p.m., he observed Mr. Hassan leave the mall and walk towards his vehicle. He said he saw the satchel over his shoulder and advised others. In cross-examination, he said that he could see the strap of the bag across his chest but could not remember which side it was on. Officer Parmar called a take down and all the vehicles surrounded Mr. Hassan’s vehicle. Mr. Hassan was arrested at 1:31 p.m. Officer Gillespie saw Mr. Hassan outside the car being handcuffed and Officer Parmar handed him a dark coloured satchel. He opened it and saw clear baggies with a white powder and cell phones.

[37] Officer Gillespie agreed in cross-examination that there was no mention in his notes about Mr. Hassan being involved in a hand to hand transaction. He said he remembered hearing about it during the investigation but that there was no notation about it or any of the circumstances. He also agreed that police did not search Mr. Hassan’s vehicle nor did they apply for a search warrant in this case.

[38] Officer Gillespie was asked about the take-down and arrest of Mr. Hassan. He testified that Officer Parmar called the take-down and he believes that Mr. Hassan was arrested for possession of a firearm and trafficking. After the arrest, Officer Gillespie took the satchel with him and attended a briefing at 4:15 p.m. He had no conversations with Mr. Hassan and he does not know who was responsible for calling a lawyer for him. It usually is the arresting officer.

[39] Sergeant Manny Parmar has been a police officer for 17 years and since 2012, had been assigned to the Guns and Gangs Task Force. He received information from Officer Gillespie that there was a person of interest in possession of a firearm that was in a brown satchel and that he was trafficking cocaine. Officers at 55 Division had requested assistance and they were conducting surveillance. Officer Parmar drove to the East York Town Centre and arrived there at 1:03 p.m. He received information from Officer Gillespie that the person was walking from the mall to his car and was carrying a satchel. Officer Parmar had not seen the applicant himself but he called a takedown, parked his car close to the vehicle of Mr. Hassan, approached the car, opened the driver door and pulled Mr. Hassan out of the car telling him he was under arrest. Mr. Hassan was inside the vehicle with the door closed when he was told to get out of the car. He testified that he took him to the ground, handcuffed him and removed the satchel as he was on the ground. He testified that he does not know for certain when the satchel came off. He handed the satchel to Officer Gillespie who opened it and found three bags of cocaine but no gun. He gave Mr. Hassan his right to counsel and advised him that he was charged with possession for the purpose of trafficking in a Schedule I substance.

[40] Officer Parmar testified that he had received information from Officer Gillespie that there had been a hand to hand transaction and he had been told that Mr. Hassan would be carrying a brown satchel with a firearm. Based on these two things, he decided to call a takedown. He arrested Mr. Hassan at 1:31 p.m. for possession of a firearm. He gave Mr. Hassan his right to counsel and took him to the car because it was raining. He testified that he waited in the car with him for approximately 20 minutes until transportation arrived.

[41] Sergeant Parmar testified that he made his notes after the de-brief at 4:15 p.m. on November 9, 2018. The information he received at the initial police briefing had no mention of a hand to hand transaction. He said it was a fluid situation and he believed that he had received the information from Officer Gillespie as events were unfolding but no details were given.

[42] On the evidence led at this application, I find that police did not make observations of the applicant that would objectively meet the reasonable and probable grounds threshold. Neither did they have sufficient information from the police briefing to support that conclusion. There was no mention in the Central Notes or in the briefing package prepared by Officer Fardell about Mr. Hassan carrying a brown satchel. Officers from Guns and Gangs testified that they had received information that Mr. Hassan was dealing drugs and would be carrying a firearm in a black satchel.

[43] Police had a suspicion about Mr. Hassan’s interaction with an unknown male; however, they did not observe any exchanges between them. The officer who witnessed the interactions testified that he was suspicious that there had been a hand to hand transaction but that he did not see it and agreed he would not have had grounds to arrest. It may have been suspicious that Mr. Hassan picked up the unknown male and that they drove a short distance. However, no officer saw a hand to hand transaction take place.

[44] In R. v. Brown, 2012 ONCA 225, [2012] O.J. 1569 (C.A.), police observed the accused fully extend his arm with a closed fist towards another person who then walked away briskly and then the accused walked away. Police believed that the manner in which the accused held his hand suggested that he was concealing drugs in his hand. Believing they had witnessed a hand-to-hand transaction, the officer arrested the accused, searched him and found cocaine, marijuana and cash on his person. The trial judge found that the officer had reasonable and probable grounds to detain the accused, search him and arrest him based on the finding of the drugs and refused to exclude the evidence. The Ontario Court of Appeal allowed the appeal and held that the trial judge erred in determining that there were reasonable and probable grounds to detain and arrest the accused.

[45] The issue of reasonable grounds to detain was not the issue raised by the evidence. Rather, the issue was whether there were reasonable grounds to arrest the accused and search him as an incident to arrest. The court held that the accused’s interaction with the other person on the street did not provide any objective basis to believe that he was engaged in a drug transaction. As a result, his arrest was unlawful, infringed his right not to be arbitrarily detained and while the drugs were reliable and essential to the Crown’s case, police conduct was serious and significantly impacted on the accused’s rights such that admission of the evidence would have brought the administration of justice into disrepute. The court excluded the evidence and entered an acquittal.

[46] In the case before me, like Brown, police did not know what the unknown male was looking at as he walked away from the vehicle. Police did not follow the unknown male to see if he had any drugs in his possession. Although the officer conducting surveillance had prior experience dealing with drug cases, he could not say whether there was a hand to hand transaction and he testified that he would not have arrested on the basis of what he saw.

[47] Furthermore, there was no evidence concerning erratic driving that might justify the reasonable and probable grounds.

[48] The confidential tip along with the interaction with the unknown male does not constitute reasonable and probable grounds to arrest the applicant. While Sergeant Parmar was entitled to rely upon the information given by 55 Division officers, their information was from the confidential informant and there was no evidence that the tip had been recent, was reliable and whether it was based upon first-hand information. When Sergeant Parmar called the takedown and arrested Mr. Hassan, he said it was for possession of a firearm because Officer Gillespie had observed Mr. Hassan leave the mall carrying a satchel. Officer Gillespie could not remember which arm the satchel was on and testified he could only see its strap. Even with the knowledge that there may have been a hand to hand transaction earlier, which the officer who witnessed the unknown male could not say had happened, in my view, when police opened the door and pulled Mr. Hassan out of the car, they had no reasonable and probable grounds to arrest Mr. Hassan on possession of a firearm.

[49] It was not until Officer Gillespie looked inside the satchel and located drugs that there were reasonable and probable grounds to arrest on possession for the purpose of trafficking.

[50] While the grounds for arrest may have become sufficient had there been further surveillance, at the time of arrest, there must be something in the conduct observed by police along with the rest of the circumstances that leads the officer to form the belief that there are reasonable grounds to arrest. Officer Parmar may have had an honest belief that he had reasonable and probable grounds to arrest but the belief could not be said to be objectively reasonable in light of all the circumstances. Section 495 of the Criminal Code and s. 9 of the Charter require reasonable grounds to arrest and those grounds must be both subjective and objectively reasonable. I conclude that an objective belief was not made out on the evidence led. While police claimed that there were public safety concerns, they also permitted Mr. Hassan to enter a mall apparently with a satchel that they believed held a firearm. I find that the police acted precipitously in their efforts to locate a firearm. I find that there is a breach of Mr. Hassan’s s. 9 rights and that the arrest was unlawful and infringed his right not to be arbitrarily detained.

WAS THERE A BREACH OF THE APPLICANT’S RIGHTS UNDER S. 8 OF THE CHARTER?

Position of the Defence:

[51] The defence argues that there was a breach of Mr. Hassan’s s. 8 rights as a result of a search stemming from the unlawful arrest. The search was not objectively or subjectively reasonable and did not flow from a valid arrest. Counsel submits that the search was not authorized by law and was an unwarranted incursion by the state. For the search to be lawful, the Crown must show there were reasonable grounds to arrest and here there were no grounds to justify a warrantless search. It cannot be said this was a valid search incident to arrest.

Position of the Crown:

[52] The Crown submits that as police had reasonable grounds to arrest Mr. Hassan, they had authority to search his person as a search incident to a lawful arrest.

The Law on Section 8: Search and Seizure

[53] Section 8 of the Charter reads: “Everyone has the right to be secure against unreasonable search or seizure.” It reflects an individual’s right to be left alone by the state absent justification for state interference with the individual.

[54] In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, the Supreme Court considered s. 8 of the Charter and held that it confers a broad and general right to be secure from unreasonable search and seizure. Justice Dickson held that s. 8 protects, at minimum, a “reasonable expectation of privacy”: p. 160. An assessment of the constitutionality of a search and seizure must focus on its “reasonable” or “unreasonable” impact. In R. v. Edwards, [1996] 1 S.C.R. 128, the Supreme Court discussed the scope and content of s. 8. It is a personal right and, as such, it protects people and not places: at para 45. An alleged breach of s. 8 invites two distinct inquiries:

(1) did the accused have a reasonable expectation of privacy? and

(2) if so, was the search by the police conducted reasonably?

Whether there is a reasonable expectation of privacy is to be determined by assessing the totality of the circumstances. A search not authorized by law is unreasonable.

[55] A warrantless search must be justified by the Crown as being reasonable. Searches will be reasonable within the meaning of s. 8 if (1) the search is authorized by law; (2) the law itself is reasonable; and (3) the search is conducted in a reasonable manner. If any of these conditions are not met, the search is not reasonable: see R. v. S.A.B., 2003 SCC 60, at para 36; R. v. Collins, [1987] 1 S.C.R. 265 at para. 23.

[56] Section 8 relates to the need to protect the property and privacy rights of persons against unwarranted incursions by the state. Once the applicant establishes that the search is a warrantless search, the Crown must show that the search was reasonable. A warrantless search is presumptively unreasonable. The Crown has the onus to justify such a search on a balance of probabilities. In order for the search to be lawful, the Crown must demonstrate either common law or statutory authority for the search. In R. v. Caslake, [1998] 1 S.C.R. 51 (“Caslake”), the Supreme Court discussed at paras. 19, 24-25, that a warrantless search incident to arrest may be lawful if it is conducted for one of the following reasons:

1. To discover evidence connected with the offence charged;

2. To preserve evidence connected with the offence charged;

3. To ensure the safety of the arresting officer(s) or the public.

[57] There is both a subjective and an objective component. The police must demonstrate that they had a valid purpose in mind when the search was conducted and the purpose must be objectively reasonable: see Caslake, at para 25. A search must be legitimately connected to one of the core reasons and must be objectively reasonable: see also Cloutier v. Langlois, [1990] 1 S.C.R. 158, at paras. 61-63.

Decision on Section 8

[58] The purpose of s. 8 of the Charter is to prevent unjustified searches, For a search to be reasonable it must be: (1) authorized by law; (2) the law itself must be reasonable; and (3) the manner in which the search is carried out must be reasonable: see R. v. Fearon, 2014 SCC 77 at para. 12; R. v. MacDonald 2014 SCC 3 at para. 29. I have found that when Sergeant Parmar arrested the applicant first, for possession of a firearm, he did not have reasonable and probable grounds to make that arrest and to detain him.

[59] I find that the search of Mr. Hassan’s person at the scene was not a valid search incident to a lawful arrest. Although a police officer may rely on hearsay information to base the determination of reasonable and probable grounds as outlined in Debot, this search of the satchel was based upon a mere suspicion that there was a firearm in the satchel. Had they conducted additional surveillance and observed more that would lead to a view of reasonable and probable grounds based upon both an objective and a subjective belief that a crime was being committed, the search incident to arrest may have been justified. However, those circumstances are not present here. Further, there was no evidence led about safety concerns of the officer. In R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, the court recognized that police could, in some circumstances, conduct safety searches as an incident of the exercise of their duty to investigate crime and protect the public. No testimony in this case discussed the police having reasonable grounds to believe that there was an imminent threat to the safety of the public or the police and that the search was necessary in order to eliminate that threat.

[60] In summary, there was neither common law nor statutory authority to search Mr. Hassan’s person without a warrant at the scene or at the police station. The search at the scene of the arrest was done following an unlawful detention. The Level III search at the station flowed directly from the unlawful detention and violated Mr. Hassan’s s. 8 rights.

WAS THERE A BREACH OF THE APPLICANT’S RIGHTS UNDER S. 10 OF THE CHARTER?

Position of the Defence on s. 10

[61] Counsel for Mr. Hassan takes the position that police violated s. 10(b) of the Charter by failing to implement the right to counsel, which is triggered at the outset of an investigative detention: see R. v. Suberu, 2009 SCC 33, at para. 2. Counsel submits that police must be vigilant with this obligation in order to prevent a detained subject from self-incrimination, and that police must refrain from questioning an accused person until they have complied with both the informational and implementation components of s. 10(b). Counsel submits that the law is clear that police are not to question an accused person once he has expressed that he does not wish to say anything and that he wishes to consult with counsel. Furthermore, if there is waiver of the right, such waiver must be unequivocal. There was no such waiver here.

[62] In the case at bar, counsel submits, police breached Mr. Hassan’s s. 10(b) rights when they failed to make reasonable efforts to put him in touch with his counsel of choice. While the Crown concedes that there was a breach of his s. 10(b) rights, Crown counsel calculates the delay as being two hours. Counsel for the applicant submits that police failed to provide the applicant with an opportunity to speak with counsel for over four hours following his arrest, that is from 1:30 p.m. when he was arrested until 5:30 p.m. when he spoke to duty counsel. There was no explanation for the delay.

[63] There was no search warrant execution in the case and no concerns about destruction of evidence. There was no reason why the applicant could not have spoken to counsel and no safety concerns as police arrested the applicant and had the situation under control within a short period of time. Counsel for the applicant submits that the recent case of R. v. Noel, 2019 ONCA 860 at paras. 31-37 demonstrates the Court of Appeal’s views that the law on s. 10(b) is clear and long settled and that it is not difficult for police to understand their obligations and carry them out. The courts cannot be seen to condone carelessness and disorganization in a case with respect to the person’s s. 10(b) rights. There is no basis or justification for the delay in implementing the right to counsel.

[64] The defence argues that police further breached Mr. Hassan’s s. 10(b) rights by failing to hold off on questioning him until he had the opportunity to speak with counsel of choice and, instead, attempted to turn him into a confidential informant. Counsel submits that police attempted to gather intelligence from him and that deliberately delaying his right to counsel to further their intelligence initiatives is unacceptable conduct: see R. v. Glatt, unreported decision of January 18, 2018 of Bawden J. ; see also R. v. Richards-Crawford, [2019] O.J. No. 2772 (SCJ) where Bawden J. found that Toronto Major Crimes Unit through “profound negligence,” violated the accused rights to counsel by delaying access to counsel for five hours and R. v. Atkinson, [2019] O.J. No. 3407 (SCJ) at para. 227, where Copeland J. excluded a firearm and ammunition from trial because of delay in permitting access to counsel where police admitted that delaying access to counsel “was a regular occurrence at 51 Division” when police were considering obtaining a search warrant.

[65] Here, after providing the right to counsel to the applicant, and Mr. Hassan saying he wanted to consult with a lawyer, Officer Parmar asked a number of questions about a gun prior to facilitating access to counsel. Counsel says that this is not permitted once the person detained advises that he wishes to consult with counsel.

[66] In her cross-examination, counsel suggested that police could have provided an opportunity to Mr. Hassan to exercise his right to counsel as early as when he was in the police car following his arrest by providing him with a Toronto Police Service cell phone. This was not something contemplated by the arresting officer; he made no inquiries about the availability of such a phone.

[67] The defence argues that Sergeant Parmar did not turn his mind to the circumstances and there were no attempts made to consider whether access to counsel at the time of arrest was possible. Officers who transported Mr. Hassan to the station also took no steps to implement his right to counsel.

Position of the Crown on s. 10

[68] Crown counsel submits that Mr. Hassan was given his right to counsel at the scene of the arrest at 1:31 p.m. and that the call log indicates that Officer Parmar made a call to his mother at 4:25 p.m. and a call to a lawyer at 4:29 p.m. When he was not able to reach the lawyer of choice, Sergeant Parmar placed a call to duty counsel at 5:37 p.m.

[69] On the allegation of a breach of s. 10(b), the respondent concedes that the two hours which elapsed between the applicant’s arrival in the booking hall and the telephone call with his mother is a breach of s. 10(b). However, Crown counsel says that if counsel of choice is not reasonably available there is an expectation that detainees will exercise their right to counsel by calling another lawyer: see R. v. Willier, 2010 SCC 37, [2010] S.C.J. No. 37 at para. 35.

[70] With respect to the defence argument that police continued to question Mr. Hassan after he said he wished to exercise his right to counsel both in the police car and back at the police station, the Crown submits that Officer Parmar has no note of this. Such questions if asked were information gathering only, and as such were proper and should not bear on any Charter analysis. There was no “duty to hold off” discussing confidential information matters with Mr. Hassan in these circumstances and prior to facilitating the right to counsel: see R. v. Commisso, [2020] O.J. 738 at paras. 28-30.

The Law on Section 10: The Right to Counsel

[71] Sections 10 of the Charter reads:

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right.

[72] The purpose of this section was discussed by the Ontario Court of Appeal in R. v. Nguyen, 2008 ONCA 49, at paras. 20-21. The right to be promptly advised of the reason for detention outlined in s. 10(a) is founded on the fundamental notion that one is not obliged to submit to an arrest if one does not know the reasons for it: Evans, at para. 26. Under s. 10(a) a person must be advised promptly of the reasons for their arrest or detention. Delay may be warranted because of officer or public safety concerns: see R. v. Gonzales, 2017 ONCA 543 at paras. 120-125.

[73] Section 10(a) is triggered upon arrest or detention. An arrest involves the actual seizure or touching of the accused with a view to detention. There must be an announcement of the officer’s intention to arrest together with an attempt to take physical control or acquiescence of the accused in the process. The arrest may be with or without a warrant. Detention refers to suspension of a person’s liberty interest by a significant physical or psychological restraint: see Watt’s Manual of Criminal Evidence, 2017 at p. 693. A person is detained where he or she “submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist”: see R. v. Therens, [1985] 1 S.C.R. 613 at p. 644.

[74] In R. v. Wong, 2015 ONCA 657, at paras. 39-40, Chief Justice Strathy wrote that the Supreme Court cited Therens in Grant, at para. 31, and that the issue of detention must be determined objectively, having regard to all the circumstances, including the conduct of police: “[T]he focus must be on the state conduct in the context of the surrounding legal and factual situation, and how that conduct would be perceived by a reasonable person in the situation as it develops.”

[75] Section 10(a) is intimately related to s. 10(b), as a person can only exercise their right to counsel in a meaningful way if they know the extent of their jeopardy: see R. v. Black, [1989] 2 S.C.R. 138, at p. 152. The right to counsel has two elements: (1) the information component, and (2) the implementation component. After being detained or arrested and informed of the reason therefor, a person is to be informed of their right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel. This is the informational component. If the detainee has indicated a desire to exercise this right, then there is a duty to provide the detainee with a reasonable opportunity to exercise the right. This is the implementation component.

[76] The purpose of the right to counsel guaranteed by s. 10(b) is to provide detainees with an opportunity to be informed of their rights and obligations under the law and to obtain advice on how to exercise those rights and fulfill those obligations. Under the section, a detainee is entitled to seek such legal advice without delay and upon request in order to be treated fairly in the criminal process: see R. v. Bartle, [1994] 3 S.C.R. 173, at paras. 17-20. A person must be fully advised of available services before being expected to assert the right to counsel, particularly because subsequent duties on the state are not triggered unless and until a detainee expresses a desire to contact counsel: see Bartle, at para. 22.

[77] Accordingly, s. 10(b) imposes three duties upon the police: (1) to immediately inform detainees of their right to retain and instruct counsel and of the existence and availability of legal aid and duty counsel; (2) where detainees indicate a desire to exercise this right to immediately provide them with a reasonable opportunity to do so; and (3) to refrain from eliciting evidence from detainees until they have had that reasonable opportunity: see R. v. Suberu at para. 38-40; see also R. v. Grant at para. 58; R. v. Taylor 2014 SCC 50. The first duty is informational while the second and third duties are implementational: see R. v. Willier, 2010 SCC 37 at paras. 29-30; R. v. Nguyen at paras 16, 18, 20-21. In Willier, the Supreme Court summarized the s. 10(b) rights and emphasized at para. 29 that if a detainee has indicated a desire to exercise this right to counsel the police must provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances) and must refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

[78] R. v. GTD, 2018 SCC 7 (“GTD”), the Supreme Court of Canada said that continuing to question a detainee by saying: “Do you wish to say anything?” once he has expressed a desire to consult with counsel is a breach of s. 10(b). A delay in implementing the right to counsel will result in the Crown having to explain why the delay occurred.

[79] In R. v. Taylor, at para. 24, the Supreme Court of Canada held that there is a duty to facilitate access to counsel immediately on the request of an accused person, and that police have to take steps to do so at the first reasonably available opportunity. In Taylor, the Supreme Court considered whether the police’s failure to take any steps to implement or facilitate access to counsel at the scene of the accident and at hospital was a breach of s. 10(b). In that case, the accused was arrested for impaired driving causing bodily harm, was informed of his Charter rights, and said he wanted to call a lawyer. At no time was he given access to a phone, either at the scene of the accident or at the hospital where he was taken for examination and where two sets of vials of blood were drawn. The court held that an accused person must be advised of the right to speak to counsel without delay and, if the person exercises that right, the police must provide the accused with an opportunity to speak to counsel at the first reasonable opportunity: at para. 23. The court wrote that, “the duty to inform a detained person of his or her right to counsel arises “immediately” upon arrest or detention and the duty to facilitate access to a lawyer, in turn arises immediately upon the detainee’s request to speak to counsel”: Taylor, at para. 24.

[80] Police must hold off questioning an accused person until he is given an opportunity to speak to counsel. As Justice Abella wrote in Taylor, at para. 35:

The result of the officers’ failure to even turn their minds that night to the obligation to provide this access, meant that there was virtually no evidence about whether a private phone call would have been possible, and therefore no basis for assessing the reasonableness of the failure to facilitate access. In fact, this is a case not so much about delay in facilitating access but about its complete denial. It is difficult to see how this ongoing failure can be characterized as reasonable. Mr. Taylor’s s. 10(b) rights were clearly violated. With respect, the trial judge erred in concluding otherwise.

Decision on Section 10

[81] Mr. Hassan was arrested on November 9, 2018 at approximately 1:31 p.m. Sergeant Parmar provided Mr. Hassan with his s. 10(a) right to be informed of the reason for his arrest and at this time the officer said it was for possession of a firearm. Mr. Hassan was 20 years old at the time of his arrest.

[82] When Officer Gillespie opened the satchel and found the 177 grams of white powder, $210 Canadian currency, cell phones and a scale, Sergeant Parmar arrested the applicant for possession of cocaine for the purpose of trafficking. No firearm was found. Shortly after he was arrested, Mr. Hassan was informed of his right to counsel. He stated that he wished to speak to his mother and a lawyer named Jeffery. He said his mother would have the telephone number of the lawyer. Sergeant Parmar did not implement the opportunity to speak with counsel in the scout car as he said that Mr. Hassan was hand cuffed and he was not able to leave the car so Mr. Hassan would not have had privacy.

[83] While Mr. Hassan was in the police vehicle, Sergeant Parmar sat with him for approximately 20 minutes as they waited for transportation back to the police station. The applicant testified that the officer questioned him repeatedly about the whereabouts of a firearm. He said he gave no answer. Following Mr. Hassan’s arrest, police from 55 Division and from Guns and Gangs Task Force attended a de-briefing. There was no discussion about who would implement the right to counsel. Generally, it is the person who arrests the individual who provides the right to counsel and the transport officer may repeat it. Officer Fardell said it was not his responsibility and that the matter was now turned over to the Guns and Gangs Task Force.

[84] Officer Sayed Zadeh and Officer Khera had transported Mr. Hassan from the scene to the police station. Officer Sayed Zadeh did not record the exact time he arrived on the scene but had recorded that he left the scene at 2:01 p.m. and arrived at 55 Division at 2:16 p.m. They had to wait outside until they could enter the station which was at 2:30 p.m. When they paraded Mr. Hassan before the officer in charge, they indicated what the charge was, details about Mr. Hassan and that they requested authority to conduct a further search of his person. They also indicated that Mr. Hassan had been given his right to counsel and that they would ensure that Mr. Hassan was provided with access to counsel. However, they did nothing to effect this. After conducting a Level III search, they took Mr. Hassan to the interview room at 2:38 p.m. Officer Sayed Zadeh testified that he did not repeat the right to counsel to Mr. Hassan and there was no discussion with Officer Khera about who would ensure that Mr. Hassan could exercise his right to counsel.

[85] Mr. Hassan testified that he was in the interview room for quite a while when Officer Parmar came in and talked to him about being a confidential informant and that they wanted to get guns off the street. This conversation lasted for two to three minutes. There was no clock in the room. Sergeant Parmar’s evidence was that he does not recall having that conversation with Mr. Hassan and he has no note of it. If a person wants to speak to him about providing confidential information, he would make notes. He saw nothing wrong with speaking to someone under arrest about confidential information before the person has had an opportunity to speak to a lawyer as long as they do not talk about the investigation.

[86] While Mr. Hassan had asked to speak to counsel of his choice, Sergeant Parmar made only one call to Mr. Hassan’s mother at 4:25 p.m., apparently received the number for the lawyer named Jeffery and called him at 4:39 p.m. and left a message. After not reaching that person, Officer Parmar put in a call to duty counsel at 5:37 p.m. and provided the applicant with the opportunity to speak to duty counsel. These calls made by Sergeant Parmar are recorded in a call log. He testified that he may have made other calls but does not recall and they are not in his notes or in any call log. Mr. Hassan testified that he did not speak to his mother, he did not have access to counsel of choice and that he was not asked if he wanted to speak to someone else because police could not reach Jeffery. He said he did not speak to either his mother or Jeffery that night.

[87] Officer Parmar does not remember what he did between the hours of 2:00 p.m. and 4:00 p.m. on the day of Mr. Hassan’s arrest. He said he had another active investigation but he is not sure what he did. He attended the de-brief of this matter at 4:15 p.m. and called Mr. Hassan’s mother at 4:25 p.m. He does not remember if he received the telephone number for Jeffery or whether the applicant received it and gave it to him.

[88] At 4:39 p.m. he called the lawyer and left a message to call his cell phone. He waited and because no one called, at 5:37 p.m. he called duty counsel and put Mr. Hassan in touch with duty counsel. He does not know if Jeffery ever called back.

[89] While Crown counsel does not seek the admission of any utterances made by the applicant before or after he indicated that he wished to speak to counsel, the defence argues that this should be considered along with the other breaches alleged and asks the court to consider their cumulative effect.

[90] The term “without delay” in s. 10(b) means “immediately”: see R. v. Grant, 2009 SCC 32 at para. 31. Delay may be justified if there are legitimate officer or public safety concerns: see Grant at para. 41. However, where police decide to suspend a person’s right to counsel that must be only so long as is reasonably necessary. They must be vigilant to ensure that once a decision is made to suspend rights to counsel, steps are taken to review the matter on a continual basis. The longer the delay, the greater the need for justification: see R. v. Wu at para. 78. In Wu, Justice Di Luca summarized from the jurisprudence certain circumstances that have recognized a basis for the suspension of the right to counsel.

[91] Police did comply with informing Mr. Hassan of his right to counsel without delay and he understood his right to counsel upon arrest. At no time did Mr. Hassan waive his right to counsel. He indicated that he wished to exercise his right to counsel and requested a lawyer named Jeffery and gave police his mother’s telephone number so that she could provide the lawyer’s phone number.

[92] Police have a duty to provide telephone access as soon as practicable to reduce the possibility of accidental self-incrimination and to refrain from eliciting evidence from the individual before access to counsel has been facilitated: see Taylor, at para. 26. The question is whether police fulfilled their obligations under the implementation component of s. 10(b) in providing Mr. Hassan with an opportunity to consult with counsel at the first reasonable opportunity.

[93] The defence takes issue with the fact that, after Mr. Hassan indicated that he wished to consult with a lawyer, police continued to ask him questions and made efforts to turn him into a confidential informant. Counsel argues that when a person charged with a criminal offence expresses a wish to consult with counsel and is questioned about becoming a confidential informant, they are particularly vulnerable and may not understand the consequences of taking on that responsibility. That is the time that they should have the right to consult with counsel implemented. Police have a duty to cease questioning or otherwise attempting to compel the detainee to make a decision until they have had a reasonable opportunity to retain and instruct counsel: see R. v. Ross, [1989] 1 S.C.R. 3, at para. 20. Section 10(b) requires that police hold off on questioning the applicant until he has had had an opportunity to consult with counsel: see R. v. G.T.D., at para. 2.

[94] In reviewing the sequence of events, I find that the obligation to provide Mr. Hassan with an opportunity to speak with counsel in private was not made at the first reasonable opportunity in the circumstances. Mr. Hassan was arrested for possession of a Schedule I substance after 1:30 p.m. He was informed of his right to counsel. He indicated he wished to speak with his mother and to a lawyer named Jeffery. He was then transported to 55 Division at 2:01 p.m., paraded before the Sergeant at 2:30 p.m. and searched and placed in an interview room at 2:38 p.m. According to the evidence, the officer placed a call to his lawyer at 4:39 p.m. and left a message. At 5:37 p.m., the applicant spoke with duty counsel.

[95] While counsel suggests that police could have provided Mr. Hassan with a cell phone at the scene of the arrest, this was not realistic. There is no evidence on this point; however, there was little delay in transporting Mr. Hassan from the scene of arrest to the station. This was not a case where the circumstances warranted that police should have turned their mind to locating a telephone on arrest and at the scene. However, I do find that they did not provide Mr. Hassan with an opportunity to speak with counsel at the first reasonable opportunity and as soon as practicable at the police station as only one call was made to counsel at 4:39 p.m. by Officer Parmar. Police could have taken steps to locate the telephone number of the counsel of choice through the mother much earlier. After not succeeding in reaching counsel of choice, the applicant was put in touch with duty counsel at 5:37 p.m. Making one phone call to counsel of choice three hours after an arrest is not compliance with the implementation component of s. 10(b). They did not inquire earlier about whether the applicant wished to speak to duty counsel instead. Finally, putting Mr. Hassan in touch with duty counsel more than four hours after his arrest, cannot be said to be reasonable efforts to comply with the constitutional rights of the applicant.

[96] There was no basis to suspend the right to counsel as this was not a situation of safety concerns for the police or for the public. There were no medical concerns or concerns that there may be a destruction of evidence if the right to counsel is implemented. Finally, there were no practical problems in the implementation of the right to counsel such as lack of privacy or the need for an interpreter. A general assertion of officer safety or destruction of evidence concerns will not justify a suspension of the right to counsel: see R. v. Rover, 2018 ONCA 745 at paras. 25-29; R. v. Wu at para. 78; see also R. v. La and Li, [2018] ONCA 830 at paras. 39, 43. This is not a case where the circumstances may have justified some delay in providing the applicant access to counsel. Police did not advise Mr. Hassan that they were suspending his right to counsel. Even if they had, they may only suspend the right as long as is reasonably necessary.

[97] This effort by police to provide the applicant with an opportunity to consult with counsel is not sufficient to satisfy the implementation component of s. 10(b). These circumstances are not dissimilar from those in R. v. Rover, where Doherty J.A. found that there had been a delay in allowing the appellant to speak to his lawyer of almost six hours and held at para. 44 that: “A delay of that length, even when the police do not attempt to question the arrested person, has a significant impact on the arrested person’s rights.”

[98] As the Court of Appeal also said in R. v. Noel, the courts cannot be seen to condone carelessness and disorganization demonstrated by police in addressing s. 10(b) rights: see paras. 31-37. Here, little effort was made to put Mr. Hassan in contact with counsel of choice.

[99] In the circumstances of this case, the defence has demonstrated on a balance of probabilities a breach of s. 10(b) of the Charter.

REMEDY: THE APPLICATION TO EXCLUDE EVIDENCE UNDER S. 24(2)

[100] I have found that there were breaches of ss. 8, 9 and 10(b) of the Charter. I now consider the question of remedy. While there are a range of remedies that may be available for Charter breaches - which may include an admonishment of police, exclusion of evidence under s. 24(2), a stay in the clearest of cases, a reduction in sentence or even an order of costs against the Crown - the defence application is for the exclusion of evidence.

Position of the defence

[101] The defence submits that the breaches of ss. 8, 9 and 10(b) would justify the exclusion of the evidence in this case. To be excluded under s. 24(2), evidence must be “obtained in a manner” that infringed a right. The applicant argues that the evidence in this case was obtained from the applicant in a manner that offended his Charter rights.

[102] Counsel submits that there was police misconduct which was part of the same course of conduct that resulted in the seizure of evidence form the applicant: see R. v. Fearon, at para. 72. There is a temporal and contextual connection between the Charter-infringing conduct of the police and the seizure of the evidence. In summary, the conduct of the police was egregious and the cumulative effect of the Charter violations is exceedingly serious. Defence counsel submits that the cumulative effect of the Charter violations demonstrates a pattern of disregard for basic and long-established Charter standards. She submits that patterns of abuse tend to support exclusion.

[103] Applying the factors outlined in the R. v. Grant analysis, at para. 71, counsel takes the position that the breaches in this case are extremely serious and that police demonstrated continual disregard for the applicant’s Charter rights. Counsel submits that detaining the applicant for several hours without access to counsel must be considered when evaluating the harm to his Charter-protected interests. There was no explanation for a four-hour delay in implementing the right to counsel and the lack of effort made by police should be considered “profound negligence” on their part. Finally, while there is a public interest in the truth-seeking function of the justice system, this factor is outweighed by the first two factors as admitting the evidence at trial would bring the administration of justice into disrepute.

Position of the Crown

[104] The Crown takes the position that the applicant bears the onus on the s. 24(2) analysis and that the Grant factors favour inclusion. She submits there is no causal, temporal or contextual connection of the evidence sought to be admitted by the Crown to the breach.

[105] Crown counsel argues that should this court find a nexus between the evidence obtained and the breach of the Charter, on an analysis under s. 24(2), she submits that there was no bad faith and that a two-hour delay in implementing the right to counsel falls on the less serious end of the spectrum of psychological impact on a detainee. Ms. Rivers submits that on a chart of seriousness of a breach, the breaches here fall in the minimal to mid-range. She also takes the position that the evidence seized was reliable and that there is strong societal interest in having an adjudication on the merits where there is a substantial amount of drugs found.

The Law on [s. 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[106] Section 24(2) states:

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 is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[107] While there need not necessarily be a causal connection between the evidence obtained and the Charter breach, there may also be a temporal connection such that the discovery of the evidence and the Charter breach took place in a single transaction. The evidence cannot be too remote from the Charter breach. The “obtained in a manner” requirement under s. 24(2) has been given a broad, purposive approach by appellate courts: see R. v. Pino, 2016 ONCA 389, at para. 72.

[108] In Pino, the Court of Appeal held that two s. 10(b) breaches along with a s. 8 breach met the “obtained in a manner requirement” and were part of the same transaction. The court found that the trial judge erred by not excluding the evidence.

[109] After considering the jurisprudence, Laskin J.A. outlined factors that should guide a court’s approach to the “obtained in a manner” requirement at para. 72 as follows:

The approach should be generous, consistent with the purpose of s. 24(2);

The court should consider the entire “chain of events” between the accused and the police;

The requirement may be met where the evidence and Charter breach are part of the same transaction or course of conduct;

The connection between the evidence and the breach may be causal, temporal or contextual, or any combination of these three connections;

But the connection cannot be either too tenuous or too remote.

[110] In the case of R. v. Boukhalfa, 2017 ONCA 660, Watt J.A. also considered the meaning of “obtained in a manner” within s. 24(2) of the Charter and noted that the approach is to be “generous, consistent with the purpose of the subsection, and take into consideration the entire chain of events surrounding the infringement and discovery of evidence.”: at para. 134. He also wrote, at para. 135:

Sometimes, Charter breaches that occur after discovery of evidence tendered for admission may result in exclusion of the evidence under s. 24(2): Pino, at para. 48. But the mere fact that the Charter breach occurred after discovery of the evidence does not, without more, provide a gateway to s. 24(2). The evidence and Charter breach must be part of the same transaction or course of conduct, the connection—causal, temporal, contextual or some combination—not too tenuous or remote.

[111] The test for exclusion under s. 24(2) was laid down in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 71, where the Supreme Court of Canada wrote:

A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter, would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.

[112] How to approach the three factors in Grant was discussed by Justice Doherty in R. v. McGuffie, 2016 ONCA 365, at para. 63:

In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see e.g. Harrison, at paras. 35-42; Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212 at paras. 75-80; R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at paras. 75-103; Aucoin, [20102] 3 S.C.R. 4 at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see e.g. R. v. Cote, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 81-89; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-112. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see e.g. Grant, at para. 140.

Decision on s. 24(2)

[113] Where evidence is obtained in a manner that infringes Charter rights, s. 24(2) provides that such evidence must be excluded if it is established having regard to all the circumstances that its admission would bring the administration of justice into disrepute. In deciding whether evidence should be excluded as a result of breaches of ss. 8, 9 and 10(b), I first consider whether the evidence is evidence “obtained in a manner” that infringed or denied any rights or freedoms guaranteed by the Charter. The case of Pino expanded the notion of “obtained in a manner”, where in the circumstances of that case the evidence was obtained from the trunk of the car and the accused was charged and later prevented from contacting counsel while police obtained a search warrant relating to the co-accused. Justice Laskin found there was a temporal and contextual connection between the breaches and the evidence obtained by police. In Boukhalfa, at para. 135, Justice Watt held that the mere fact that there has been a Charter breach which occurs after the evidence is obtained does not necessarily mean that there is a nexus between the breach and the evidence to warrant exclusion. He wrote at para. 148:

To access the exclusionary rule of s. 24(2), an accused must establish, on a balance of probabilities, not only an infringement of a Charter protected right or freedom, but also a nexus between that infringement and the discovery of evidence tendered for admission. This nexus is expressed in the phrase “obtained in a manner” in s. 24(2).

[114] In the case of Mr. Hassan, evidence was obtained from the satchel that police say he had over his shoulder when he was arrested. His detention continued from his arrest at 1:30 p.m. I conclude that the evidence of the drugs being tendered for admission in evidence at this trial was “obtained in a manner” that infringed his Charter rights and their discovery was directly connected to the Charter breaches in light of the chain of events between the applicant and the police. These events were all part of the same transaction or course of conduct.

[115] I now consider the defence application for exclusion and determine whether the evidence should be excluded in accordance with the Grant analysis. I assess and balance the factors outlined in Grant as follows. The first inquiry is with reference to the seriousness of the Charter-infringing state conduct. This is a fact-specific inquiry and involves consideration of the officer’s conduct on a spectrum “from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights”: R. v. Kitaitchik, [2002] O.J. No. 2476 (Ont. C.A.), at para. 41.

[116] In considering the breaches of ss. 8, 9, and 10(b), I find that there was a pattern of behavior from the point of arrest until the police arranged duty counsel to consult with the applicant four hours later. I find there was a disregard for Charter rights and compliance with the Criminal Code without any real understanding of what those rights mean, and how compliance with those provisions could have been effected.

[117] While Sergeant Parmar may have had an honest belief that he had grounds for arrest, I have concluded that he acted precipitously. He should have allowed for additional surveillance and investigation to take place so that grounds that were objectively reasonable could have been demonstrated or not. He did not turn his mind to exercising further police powers short of arrest. I conclude that his conduct showed a significant disregard for the right of Mr. Hassan to be free from arbitrary detention. The failure to consider less intrusive means of investigating and in racing to arrest the applicant constitutes conduct that is serious: see R. v. Buhay, [2003] 1 S.C.R. 631 at paras. 59-60; R. v. Brown, para. 26.

[118] As for the s. 8 breach, this breach is also extremely serious. Police searched the satchel without having reasonable grounds to arrest. They did not find the gun that they expected to find in the satchel but found drugs. There was no basis to search incident to arrest. At the station, Mr. Hassan was subjected to a Level III search, again an unlawful search. This breach is extremely serious and a highly intrusive invasion of privacy.

[119] The s. 10(b) breach occurred because Sergeant Parmar, who provided Mr. Hassan with the informational component of the right to counsel, failed to implement that right by putting him in contact with a lawyer of his choice and failing that, with duty counsel, within a reasonable time. I find it would not have been difficult for Sergeant Parmar to make a further call to defence counsel or to arrange for telephone consultation with duty counsel if counsel of choice was not available, but not to wait almost four hours. There were no exceptional circumstances to justify that delay and to suspend the implementation of the right to counsel. I do not accept that the breach was a good faith error. It demonstrated a lack of understanding by the officer of the right protected by s. 10(b). As the Court of Appeal stated in R. v. Noel, “the law around s. 10(b) is clear and long-settled. It is not difficult for the police to understand their obligations and carry them out.”

[120] While I do not consider that it was malicious or a deliberate violation of the applicant’s constitutionals rights, I find that Sergeant Parmar made little effort to comply with the implementational component of s. 10 within a reasonable time. He testified that he had another case he was preparing but did not explain the reason for delay. Sergeant Parmar had an obligation to facilitate the right to counsel as soon as was reasonable in the circumstances and he failed to meet this obligation. His attitude about Mr. Hassan’s rights protected under s. 10(b) was cavalier in the circumstances. Neither Sergeant Parmar nor Officer Kera who assured the booking officer that police would put Mr. Hassan in touch with counsel took any steps to ensure that happened within a reasonable time. Although the police did not deliberately set out to violate the appellant’s constitutional rights under s. 9, their failure to appreciate their duties led to this result: see R. v. Wong, at para. 63. As for the other breaches, despite the fact it appears that Mr. Hassan was treated respectfully upon his arrest, police also breached his right to be free from arbitrary detention and his right to liberty in circumstances that were not warranted.

[121] I conclude that on the seriousness of the Charter-infringing state conduct, this factor favours exclusion of the evidence.

[122] As for the second inquiry, the impact on the Charter-protected interests of the accused, I note that the applicant, who was 20 years old at the time, was arrested, searched at the scene, taken to the police station, subjected to a Level III search and held at the police station without being able to speak to his mother or to his counsel for several hours. The police conduct was neither fleeting nor technical. The actions of the police were intrusive of Mr. Hassan’s liberty and his privacy interests. The breaches involved police giving short shrift to the Charter-protected rights of the applicant. This factor strongly favours exclusion.

[123] I now turn to the third line of inquiry of “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.” The evidence seized consists of a very significant amount of cocaine (177 grams), cell phones, digital scale and $210 in Canadian currency. The evidence is real evidence and is reliable and essential to the Crown’s case on the possession for the purpose of trafficking charge. This inquiry favours the admission of the evidence in the Grant analysis. There is strong public interest in having criminal charges determined on their merits, especially where the charges are serious. I acknowledge that by excluding the evidence the entire case against Mr. Hassan would fall.

[124] In balancing the factors under the three lines of inquiry I again note Justice Doherty’s comments in McGuffie, at para. 63: “If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility…:” In assessing the impact of the admission or exclusion of the evidence on the long-term repute of the administration of justice, I am led to the conclusion that the reputation of the justice system would be better served by the exclusion of the evidence. I conclude that a reasonable person informed of the relevant circumstances and familiar with Charter values would conclude that the admission of the evidence in this case would bring the administration of justice into disrepute. The police conduct was serious, and significantly impactful on the applicant’s liberty. The courts should dissociate themselves from evidence obtained through a negligent breach of the Charter: see R. v. Le 2019 SCC 34 at para. 143; Grant at para. 75.

[125] Counsel attempted to demonstrate that the conduct of pressing for information and attempting to make a detainee a confidential informant prior to facilitating access to counsel may be indicative of a systemic problem or a deliberate course of conduct of attempting to secure information after arrest without regard to the Charter rights of the person arrested. On the evidence before me, I am not able to make that determination. However, the absence of evidence of systemic institutional non-compliance with the Charter does not mitigate the seriousness of the police misconduct: see R. v. McGuffie, 2016 ONCA 365 at paras. 75-76.

[126] As Justice Jamal wrote in R. v. Thompson, 2020 ONCA 264, [2020] O.J. No. 1757, at para. 95:

Even without a systemic problem, a clear breach of settled rules governing state conduct supports exclusion of evidence under s. 24(2). As noted in Paterson, at para. 44: “[e]ven where the Charter infringement is not deliberate or the product of systemic or institutional abuse, exclusion has been found to be warranted for clear violations of well-established rules governing state conduct (R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 24-24”; see also Noel, at para. 34.

[127] In my view, the circumstances of this case are such that exclusion of the evidence would not bring the administration of justice into disrepute.

RESULT

[128] I have found that the applicant has met his onus and has established, on a balance of probabilities, breaches of his Charter rights under ss. 8, 9 and 10(b). I am of the view that the evidence sought to be excluded by the applicant was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter. Further, having engaged in a balancing exercise as outlined in Grant, I conclude that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute. Accordingly, the application for an order excluding the evidence under s. 24(2) of the Charter is granted.

Himel J.

Released: October 16, 2020