COURT FILE NO.: CR-19-50000429

DATE: 20201022

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

TWANY DARLING Applicant/Defendant

COUNSEL: Aaron Del Rizzo and Christie Black, for the Crown Tania Bariteau, for the Defendant

HEARD: September 28, 2020 to October 9, 2020

JUSTICE S. NAKATSURU

[1] A search warrant was executed on October 31, 2018, at the address of apartment 1509, 10 Willowridge Road, Toronto. It was a telewarrant (“warrant”). Guns, drugs, and money were found. The applicant, Twany Darling, was there during the early morning search. His brother, M.D. (a young person at the time), was also there. Six days earlier, it is alleged that the applicant, M.D., and two other men, robbed a man who was looking to buy an iPhone. One of the suspects had a pistol and used it to strike the complainant. Mr. Darling is now facing trial on numerous firearms, drug, and proceeds charges. At this pre-trial application, he claims his rights under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms were violated. He asks for a stay of proceedings or the exclusion of the evidence as a remedy.

[2] I dismissed the application. These are my reasons supplementing the brief oral decision.

[3] The following are the issues:

• Issue #1: Were there reasonable and probable grounds in the Information to Obtain (“ITO”) for the warrant to issue?

• Issue #2: Was the telewarrant validly issued?

• Issue #3: Was the unannounced dynamic entry in executing the search warrant a violation of s. 8?

• Issue #4: Was the applicant arbitrarily detained when the police delayed taking him before a justice of the peace contrary to s. 503 of the Criminal Code?

[4] Prior to analyzing each issue, I will summarize some salient portions of the ITO sworn by the affiant, D.C. Joshi. Leave was granted for the defence to cross-examine D.C. Joshi on some discrete issues. I will set out what the cross-examination revealed.

A. OVERVIEW OF THE ITO

1. The Robbery

[5] The ITO states that the police were investigating an armed robbery that happened on October 25, 2018, at about 1:00 a.m. The police were dispatched and found Shehab Fathy lying on the grass. Mr. Fathy told the police officers that he had arranged to meet someone via an app to buy a cellphone. He went to a building at 44 Willowridge Road where he met a suspect at the entrance of the building under some construction scaffolding. There was a group of men present. One suspect pulled out a gun, robbed him of $1,200, and struck him on the head. Mr. Fathy ran. The suspects chased him. Mr. Fathy got away.

[6] The police obtained CCTV surveillance video from the Toronto Community Housing Corporation which operated the building complex. The video showed the suspects standing inside a stairwell waiting for Mr. Fathy to arrive. Mr. Fathy approached the door and spoke with a suspect who was still inside the building out of view of the camera. Mr. Fathy pulled out a white envelope and stepped into the doorway. The next image was of Mr. Fathy running out of the doorway while being chased by at least three people. The CCTV video then showed the suspects running back into the building, up the stairwell to the fourth floor and back down into the main lobby shortly afterwards.

[7] Mr. Fathy provided a description of the suspects. The male with the handgun was Black with a dark complexion, in his early 20s, thin build, 180 centimetres tall, wearing an off-white hoody, green cargo pants and white shoes. The other suspects were collectively described as males, Black with dark complexions, in their early 20s, and wearing hoodies and sweatpants.

2. The Police Investigation into the Identity of the Suspects

[8] The affiant avers that on October 27, 2018, D.C. Wesselius looked at the surveillance video. He told D.C. Joshi that the suspect wearing black track pants with two white stripes, a black jacket with a hood and black shoes was known to him as M.D., someone he knew to live at apartment 1509-10 Willowridge Road. Police checks revealed that this was M.D.’s address. M.D. was on a recognizance for charges of robbery and failure to comply with a recognizance and was on probation for possession of a prohibited substance and a restricted weapon. M.D. did not have a criminal record. A CPIC check revealed him to have a marked deformity in the form of an extra finger on each of his hands. Other information such as the synopses of past criminal allegations against M.D. was included in the ITO.

[9] Later that day, the police attended the hospital and met with Mr. Fathy who provided the text conversation between him and the suspect. Mr. Fathy reviewed the surveillance footage and advised that M.D. was the male who approached him when he first arrived and who requested that he come to the side entrance.

[10] On October 28, 2018, P.C. Goddard reviewed the surveillance video and advised D.C. Joshi that the suspect wearing the purple hoodie was Sakariya Osman who lived in apartment 102-44 Willowridge Road. A Versadex check confirmed the address and revealed Mr. Osman had a criminal record for fraud and possession of property obtained by crime under $5000 on November 12, 2012. Other information about his background was also included in the ITO.

3. Information from a Confidential Source

[11] There was information received from a Confidential Source (“CS”) outlined in the ITO. A number of redactions were made by the Crown in the appendix attached to the ITO about the CS’s background and the information the CS provided.

[12] On October 27, 2018, Detective Fynes showed the CS photos of the four males who were alleged to be involved in the robbery. The CS advised that the photo of the suspect in the maroon-coloured hoody was the brother of “Racks” from 44 Willowridge Road.

[13] The ITO further states:

A photo of the suspect in the camouflage outfit was shown to the CS. The CS advised that this male lives in 10 Willowridge, is Jamaican, 20-24 years, is fresh out of jail, and that the handler had shown a photo of him to the CS months ago. FYNES showed a photo of “Twany Darling 1996.06.14”. The CS confirmed that is the male in the camouflage outfit.

[14] The CS advised that the photo of the male in the black hoody looked like the camouflage guy’s brother, but CS told Detective Fynes to check to see if the black hooded guy has the “weird extra fingers.” The CS could not identify the male in the white hoody.

[15] The ITO disclosed that the CS’s motivation for providing information was monetary and charge consideration. The CS was well entrenched in a criminal lifestyle and that the CS had provided information to the Toronto Police in the past.

4. Police Checks on the Applicant’s Address

[16] A Versadex check of the applicant revealed a home address of apartment 1509-10 Willowridge Road. This address was based on a summary of an incident from September 15, 2015. An Intellibook check of the applicant revealed two photographs on the police file dated September 15, 2015 and November 15, 2015. A criminal record check for the applicant revealed two sets of convictions: assault, uttering threats and theft under $5000 on February 22, 2016, and; fail to comply with recognizance and obstructing a peace officer on August 16, 2018. A synopsis was included for the September 15, 2015, incident for an assault with a weapon.

B. THE CROSS-EXAMINATION OF THE AFFIANT

[17] When it comes to challenging the basis for this ITO, I find that the cross-examination of D.C. Joshi did not accomplish much. The following additional information was obtained in that cross-examination.

[18] D.C. Joshi completed several police checks on the applicant. When he did a Versadex check, the officer looked at the police booking data sheet on the applicant when he had been previously arrested. On this data sheet, a section regarding immigration information noted that the applicant was from St. Lucia. D.C. Joshi did not recall specifically looking at this immigration section, but he admitted looking at the document itself. He further admitted the ITO does not contain this information about the applicant’s country of origin being St. Lucia.

[19] D.C. Joshi agreed that doing a criminal record check would reveal the sentence received by a person convicted of a crime. For his convictions of August 16, 2018, the applicant received a suspended sentence and probation after taking into account 31 days of credit for pretrial custody he had done. Although the CS said the person wearing the camouflage outfit was “fresh out of jail,” D.C. Joshi did not include this sentence received by the applicant in the ITO.

[20] The ITO stated that the applicant lived at the address of apartment 1509-10 Willowridge Road. The last information regarding the currency of the address in the ITO was three years earlier. D.C. Joshi testified that the Versadex check does not state how current the residence address is. D.C. Joshi said that the CPIC hit from the convictions of August 16, 2018, also stated the address was 10 Willowridge Road, unit 1509. This information was not in the ITO.

[21] D.C. Joshi agreed that the police conducted no surveillance on the address. He testified that he was satisfied that the applicant lived there based on his police checks.

[22] With respect to M.D., when D.C. Joshi played the surveillance video to fellow officers in his unit, D.C. Wesselius told D.C. Joshi that he could identify M.D. D.C. Wesselius said that he knew M.D. through previous dealings so he had intimate knowledge of him. No further details of those dealings were given to D.C. Joshi. D.C. Joshi testified that previous dealings meant to him that the officer met M.D. a few times or had investigated him. D.C. Joshi could not recall if he asked for any more details such as when or what kind of previous dealings the officer had. D.C. Wesselius said M.D. had two extra fingers and lived at apartment 1509-10 Willowridge Road. D.C. Joshi agreed in cross-examination that one could not see the extra fingers on the surveillance video.

C. ISSUE #1: REASONABLE AND PROBABLE GROUNDS

1. Judicial Review of Search Warrants

[23] Section 8 of the Charter guarantees the right to be free from unreasonable search and seizure. A constitutionally compliant search and seizure is one authorized by law, made under a reasonable authorizing law, and is conducted in a reasonable manner: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 39.

[24] In the judicial review of a search warrant, a presumption of validity exists. The onus is on the challenging party to show it is invalid. The standard of review is whether the issuing justice could, acting judicially, have found that the legal thresholds were met; whether there was sufficient credible and reliable evidence to permit the justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of the search. In R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721, at para. 20, Justice Fairburn (as she then was) described my role on this review in this way:

The question for a reviewing court is not whether the court would have issued the warrant or authorization, but whether it was open to the issuing justice to have done so. In a case like this, involving a s. 487 warrant, the question is whether there are reasonable grounds to believe—constitutionally defined as credibly-based probability—that there is evidence respecting the commission of an offence in the location to be searched: Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, at pp. 167-8. Credibly-based probability exceeds suspicion, but falls short of a balance of probabilities: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 81.

2. The Analysis of the ITO

[25] The ITO states that the police wanted to look for the clothing worn by the suspects, any firearm, and the property of the victim in the proposed search of apartment 1509-10 Willowridge Road.

[26] On this application, the applicant submits: (1) the ITO lacked reasonable grounds that the applicant participated in the robbery; and (2) the ITO lacked reasonable grounds that connected the applicant to apartment 1509-10 Willowridge Road.

[27] In my view, there is some merit to the applicant’s arguments. Given the redactions made by the Crown, the credibility of the CS is lacking: R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140 at para. 60. Moreover, the compelling nature of the tip is compromised by the general description of the suspect given by the CS (after excising the misleading portions of the description regarding the applicant’s country of origin and whether he was fresh out of jail) and the suggestive nature of Detective Fyne’s identification process in showing only one photograph of the applicant to the CS. Finally, while the police database checks revealed that the applicant lived at apartment 1509-10 Willowridge Road, this information was about three years old. The police did nothing to corroborate that he currently lived there.

[28] However, the merit to the applicant’s arguments does not fundamentally weaken the validity of the warrant. It is trite that the whole of the ITO must be considered. On the facts of this case, two of the suspects involved in the robbery are said to live at the same address, apartment 1509-10 Willowridge Road. The two brothers. Thus, grounds relevant to both brothers were rightfully considered by the justice of the peace in determining whether the warrant should issue.

[29] For sure, s. 8 of the Charter protects people and not places. But the constitutional protection afforded to the reasonable expectations of privacy of those who reside or were present during the execution of the warrant at apartment 1509-10 Willowridge Road depends upon the validity of the warrant issued to search that location. The warrant is not for the search of a person. Thus, it is not a violation of s. 8 that the ITO does not provide reasonable grounds for each person who lives or may be at the location.

[30] Commonly, people found in a searched premise are not targets of the search warrant. Some may even be arrested based upon what is uncovered in the search. Yet these persons do not need to be even mentioned in the ITO. Failure to do so does not undermine the legality of the search warrant.

[31] Similarly, if the grounds for one target falls short of reasonable grounds, the grounds for another target who is connected to the same place sought to be searched, may be enough. I can easily think of other situations where the grounds for a search are based upon multiple targets attending a single location.

[32] In my opinion, it all comes down to whether there are reasonable and probable grounds to believe that evidence of an offence will be found at a certain place. The applicant’s analysis, separating and only considering the grounds relevant to the applicant, is unsupported in law.

[33] Thus, I must also consider the grounds relevant to M.D. who is said to live at the address. When I do, I find that the ITO contains reasonable and probable grounds that M.D. was involved in the robbery. The primary source of the identification comes from surveillance footage obtained from 44 Willowridge Road. The CCTV video showed the suspects standing together inside the stairwell waiting for Mr. Fathy to arrive. Mr. Fathy is seen speaking with a suspect and pulls out an envelope of cash. He steps into the threshold of a doorway where the robbery took place. He is then seen running out being chased by at least three of the four suspects. In addition, the CCTV video system showed the suspects running back into the building, moving about the building, running up to the fourth floor, and then coming back down again to the main lobby minutes after the robbery took place.

[34] On October 27, 2018, D.C. Wesselius reviewed this surveillance footage. The ITO states that the officer advised D.C. Joshi that the suspect wearing black track pants with two white stripes, black jacket with hood and black shoes is known to him as M.D., someone D.C. Wesselius knew to reside at 10 Willowridge Road, apartment 1509, Toronto. Included in the ITO is a still photo of this suspect.

[35] In my view, this recognition evidence of a police officer based upon personal knowledge of M.D. is sufficient reasonable and probable grounds to believe M.D. was involved in the robbery.

[36] Cross-examination of D.C. Joshi on this issue did not undermine this averment. Although D.C. Wesselius did not specify exactly the timing or nature of these previous dealings, the fact remains that D.C. Wesselius was a credible and reliable source who advised the affiant he had first-hand knowledge of M.D. It is worth emphasizing that this information is not being put forward as proof in a criminal trial. The recognition opinion of D.C. Wesselius need not meet the standard for such proof. This information is being used to obtain an investigative tool. In that context, it meets the requisite threshold of reasonable and probable grounds.

[37] Further, the ITO goes on and states that on October 27, at the hospital, Mr. Fathy reviewed the surveillance footage. Mr. Fathy advised that M.D. was the male who approached him when he had arrived and had asked Mr. Fathy to come to the side entrance of the building where the robbery occurred. It is not apparent how Mr. Fathy was able to identify M.D. as this person since Mr. Fathy had no prior knowledge of M.D. The ITO does not say. Regardless though, according to Mr. Fathy, this person played an important role in the robbery by effectively luring him to the area where others were waiting.

[38] Added to this is the information provided by the CS about M.D. The CS advised that the photo of the male in the black hoody looked like the brother of the person who was identified to be the applicant. The CS said to check if the black-hooded guy had weird extra fingers. M.D. has an extra pinky finger on each hand. D.C. Wesselius was also aware of this and told D.C. Joshi about it.

[39] I appreciate the surveillance video is not able to capture any extra digits on the black-hooded suspect’s hands. Moreover, there were issues regarding the reliability of the information provided by the CS in the ITO. But in my view, the recognition by D.C. Wesselius of the suspect in the surveillance video is enough to connect M.D. to the robbery. These other averments are simply supportive of that.

[40] Moving on, there are ample grounds that M.D. resided at apartment 1509-10 Willowridge Road. Checks of the various police databases consistently reported M.D. as living there. The most probative is a CPIC check that showed he was on a recognizance for a robbery and that a condition of his release was that he reside there.

[41] The police were looking for clothes, guns, and cash as evidence of the robbery. D.C. Joshi believed they would be found at M.D.’s home. The robbery took place in the same building complex as 10 Willowridge Road. In other words, close by. The robbery took place about six days earlier. In other words, not too long ago.

[42] Looking at the ITO as a whole, even leaving aside the averments that were relevant to the applicant, I find that there were sufficient reasonable and probable grounds that evidence of the robbery would be found at apartment 1509-10 Willowridge Road. Therefore, the warrant could have been judicially issued by the justice of the peace.

[43] Given this conclusion, it is not necessary to go on to step six of Garafoli as requested by the Crown should the ITO fail to provide sufficient grounds.

D. ISSUE #2: GROUNDS FOR A TELEWARRANT

1. Requirements for a Telewarrant

[44] Section 487.1 of the Criminal Code states the following material requirements for a telewarrant:

487.1 (1) If a peace officer believes that an indictable offence has been committed and that it would be impracticable to appear personally before a justice to make an application for a warrant in accordance with section 487, the peace officer may submit an information on oath by telephone or other means of telecommunication to a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter.

(4) An information submitted by telephone or other means of telecommunication shall include

(a) a statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice;

(5) A justice referred to in subsection (1) may issue a warrant to a peace officer conferring the same authority respecting search and seizure as may be conferred by a warrant issued under subsection 487(1) if the justice is satisfied that an information submitted by telephone or other means of telecommunication

(a) is in respect of an indictable offence and conforms to the requirements of subsection (4);

(b) discloses reasonable grounds for dispensing with an information presented personally and in writing; ….

2. The Analysis of the ITO

[45] The applicant submits that the requirements were not satisfied. The applicant submits that it was not impracticable for D.C. Joshi to apply for a warrant in person given that there was no urgency to obtain the warrant. He points to the fact that the armed robbery had occurred days before the warrant was sought. The argument made by the affiant that it was urgent because a gun had been used is undermined by the fact that the police did not seek the warrant until two to three days after identifying the perpetrators. Moreover, it is submitted that the urgency rationale is contradicted by their request of the justice of the peace for three days in which to execute the warrant.

[46] I do not accept this argument.

[47] First, the threshold to meet the impracticable standard is not onerous: R. v. Ricciardi, 2017 ONSC 2788, [2017] O.J. No. 2282.

[48] Second, although the urgency for a search can be a factor in determining impracticabality, it is not synonymous with it.

[49] Third, while mere inconvenience or bald assertions are insufficient to meet the threshold, I find that this is not the case here. In the ITO, D.C. Joshi sets out his belief it was impracticable to obtain an in-person warrant in the following way: “There is currently no sitting Justice of the Peace available in the courthouse to consider this application.” While this one sentence is admittedly thin when it comes to the specific reason for the impracticabality, it provides a reason beyond a bald assertion.

[50] Fourth, when assessing the requirement of impracticabality, the whole of the ITO should be considered. This includes the circumstances of the offence, the background of the suspects, the nature of the place to be searched, and the investigation conducted up to the point of the application for the telewarrant: R. v. Evans, 2017 ONSC 3141, [2017] O.J. No. 2751.

[51] Here, I find given the state of the investigation, the timing of the events, and the fact there was no sitting justice of the peace at the time, it was reasonable for a telewarrant to have been applied for and to have issued. While not part of the ITO, the email requesting consideration for the telewarrant was sent to the justice of the peace at 9:42 p.m. in the evening of October 30, 2018. D.C. Joshi states in that email the application was urgent as a firearm was used in the commission of the offence. Other parts of the ITO reveal that the offence the police were investigating was a violent one where the complainant was injured having been struck with a firearm. Moreover, this firearm was not recovered. The two targets alleged to be living at the address had alleged backgrounds for violent behaviour and the possession of weapons and firearms. While what the police did during the intervening period between receiving information about the identification of the suspects and the application for the warrant is left undesirably unexplained, the amount of time that had passed given the nature of the investigation being conducted is not such that it leads me to seriously question the assertion there was urgency in getting the warrant issued. The numerous passages of the ITO that explained D.C. Joshi’s reasons for asking for the three-day period for the execution of the warrant and for the night time entry, focuses on public and officer safety concerns. Those concerns were reasonable in the circumstances. Finally, I note that the warrant was executed early the next morning once it was issued. In other words, this police action in executing the warrant was consistent with a need for urgency.

[52] When all of this is taken into account, I find it reasonable that D.C. Joshi did not wait until the following day to seek an in-person search warrant. Put another way, it was impracticable to do so and there were reasonable grounds to dispense with an in-person application.

[53] I therefore find that that warrant is valid. There was no s. 8 violation.

3. Alternative Analysis under s. 24(2)

[54] If I am wrong about whether the requirements for a telewarrant were met, I will conduct an analysis under s. 24(2) of the Charter. While I do not find it normally useful to conduct a separate s. 24(2) analysis when no Charter breach is found, in this case the issue is sufficiently factually and legally contained to warrant doing so.

[55] The test for whether the admission of evidence would bring the administration of justice into disrepute was reformulated in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71. The test considers the following:

1. The seriousness of the Charter-infringing state conduct;
2. The impact of the breach on the Charter-protected interests of the accused; and
3. Society’s interest in the adjudication of the case on its merits.

[56] If there was a violation of s. 8, I find that the breach was not particularly serious. D.C. Joshi did not intend to breach any Charter rights. If he fell short of what he was required to do, it was not by much. While the ITO perhaps could have been more fulsome about the need for a telewarrant or perhaps the police could have waited until the next morning, I can understand why the police chose to conduct themselves in the way they did. As noted, the police did in fact execute the warrant early the next morning. The police acted in good faith.

[57] Moreover, the warrant was otherwise validly issued with more than ample reasonable and probable grounds to cement its issuance. Thus, although it would be wrong to characterize it as a technical breach, it was far from the serious end of the continuum of s. 8 violations.

[58] The impact upon the applicant’s s. 8 interest was measured. While his privacy interest in a place where he was found was significant, it being a private dwelling house, the police would have nevertheless infringed that privacy interest if an in-person warrant was sought the next morning.

[59] The final factor of the Grant analysis strongly favours admission. The evidence is reliable and necessary for the Crown’s case.

[60] When all three considerations are balanced, they favour admission of the evidence. While each case is determined on its own facts, I do not find it surprising that other courts have not excluded evidence when a breach of this nature occurred: R. v. Daniels, 2015 ONSC 283, [2015] O.J. No. 146; R v. Lacelle, 2013 ONCA 390, [2013] O.J. No. 2749.

E. THE UNANNOUNCED DYNAMIC ENTRY

[61] The police used a ram to batter down the door to apartment 1509. They did not announce their presence before its use. The applicant submits that the manner of their search violated s. 8.

[62] The Crown submits that the decision to proceed by way of an unannounced dynamic entry was based on the need for safety for everyone involved and to prevent the destruction of evidence.

[63] I agree with the Crown. The police were conducting a search further to their investigation into a violent armed robbery where a firearm was wielded, and the complainant injured by it. The fact that someone other than the applicant or M.D. was identified as the person using the gun did not much temper this. The armed robbery was clearly a joint venture. It was reasonable for the officers to be concerned about safety.

[64] In addition, the police had information that M.D. was allegedly involved in a robbery in August of 2016 where some weapon was used. In November of 2017, he was arrested and charged with trafficking and unauthorized possession of a firearm. A CPIC check revealed M.D. was on probation for possession of a substance and possession of a restricted weapon. A check of the applicant showed a Versadex case from an incident in September of 2015, where it is alleged that he brandished a knife in an argument with a female partner who was cut by it. He also had a criminal record for assault, uttering threats, theft under $5000, failure to comply and obstructing police. This information also supported the police decision to go with an unannounced dynamic entry.

[65] In all of the circumstances, the failure of the police to knock and announce themselves, did not lead to a s. 8 violation. The caution expressed in R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at paras. 20, 24 about second-guessing a police decision in departing from the knock and announce principle is fitting on the facts of this case. Justice Cromwell wrote:

I would underline the words Chief Justice Dickson used in Genest: what must be present is evidence to support the conclusion that "there were grounds to be concerned about the possibility of violence": p. 90. I respectfully agree with Slatter J.A. when he said in the present case that "[s]ection 8 of the Charter does not require the police to put their lives or safety on the line if there is even a low risk of weapons being present": para. 24.

… the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannot be expected to measure in advance with nuanced precision the amount of force the situation will require: R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at para. 73; Crampton, at para. 45. It is often said of security measures that, if something happens, the measures were inadequate but that if nothing happens, they were excessive. These sorts of after-the-fact assessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances. The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback.

F. ARBITRARY DETENTION

[66] Section 503(1)(a) of the Criminal Code requires that the police bring an arrested person before a justice without unreasonable delay and in any event within 24 hours of the arrest. Failure to do so constitutes an arbitrary detention under s. 9 of the Charter.

[67] The Crown agrees that the applicant was not brought before a justice until 27 hours following his arrest. A s. 9 violation is conceded: R. v. Holmes, 2002 45114 (ON CA), [2002] O.J. No. 4178 (C.A.), at para. 22; R. v. Poirier, 2016 ONCA 582, [2016] O.J. No. 3873, at paras. 56-61, 89-96.

[68] The issue is one of remedy. The applicant argues for a stay of proceedings. The Crown submits that a stay is not appropriate. Rather, the Crown submits that a reduction in sentence is the appropriate remedy should the applicant be convicted of any offence.

1. Evidence Tendered by the Crown

[69] On this issue, the Crown has filed an affidavit from P.C. Reitsma. On October 31, 2018, she was assigned to the Major Crime Unit at 23 Division. She was involved in the investigation into the applicant. The applicant did not cross-examine her. Her affidavit is unchallenged by any other evidence.

[70] P.C. Reitsma sets out the circumstances after the two search warrants were executed on October 31, 2018. One was executed at apartment 1509-10 Willowridge Road. The other was executed at apartment 102-44 Willowridge Road, the home of Mr. Sakariya Osman, the third suspect. The applicant, M.D. and Mr. Osman were arrested and transported to 23 Division. The applicant was booked at approximately 8:04 a.m.

[71] P.C. Reitsma avers that she assisted in the preparation of the case for court. This involved the three accused males who were charged with multiple gun and drug charges in addition to the initial armed robbery offences. The properties seized from the search warrants included clothing, two loaded firearms, ammunition and magazines, numerous drug exhibits, and other general property items. These were photographed, processed, weighed and entered into the property bureau.

[72] P.C. Reitsma avers that the case preparation had to be completed prior to the accused being processed and transported to court. Due to the amount of seized property to be inventoried, the number of accused, the number/nature of charges, and the need for the accused to attend different courthouses (Youth Court, Toronto West courthouse, and Old City Hall courthouse), this all took several hours. In addition, P.C. Reitsma states that the police had to re-do the paperwork for the two adults accused since they were later advised that Mr. Osman would not be attending Toronto West courthouse but would be going to Old City Hall courthouse along with the applicant as they were to be charged on the same information.

[73] The cut-off time for bail court at Old City Hall is 2:45 p.m. According to P.C. Reitsma, it became apparent as they were preparing the cases that none of the accused would make it to court before the cut off. While they worked as quickly as they could, her recollection was that they did not finish the paperwork until the early evening hours, a few hours after the cut off time. To her knowledge, in November of 2018, P.C. Reitsma was not aware of any way to get the accused before a justice until the following day.

2. The Law Regarding a Stay of Proceedings

[74] Only in the “clearest of cases” is a stay of proceedings ordered.

[75] A stay of proceedings falls into two categories: (a) where state conduct compromises the fairness of an accused's trial (the "main" category); and (b) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category): R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309.

[76] In the case at bar, all agree that we are dealing only with the residual category. A three-step test is applied (Babos, at para. 32):

1. There must be prejudice to the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome";
2. There must be no alternative remedy capable of redressing the prejudice; and
3. Where there is still uncertainty over whether a stay is warranted after steps 1 and 2, the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits".

3. Analysis

[77] In this case, I do not find the police violation of s. 9 to be flagrant or deliberate. The police did not intentionally delay bringing the applicant before a justice of the peace. For instance, the police did not delay bringing an accused before a justice in order to extract a confession or otherwise advance their investigation. Nor did they simply ignore their obligations to do so. I also cannot find on this record that the police were unacceptably negligent. The evidence of P.C. Reitsma leads me to these conclusions. In short, the police tried to comply with s. 503 but were not successful.

[78] When considering the first part of the test for a stay, these are important findings. Said in another way, from this perspective, the actions of the police in not being able to bring the applicant to court as quickly as required, does not constitute a significant prejudice when it comes to assessing its impact on the integrity of the justice system.

[79] That said, I do not find the explanation entirely acceptable.

[80] First, the police officers could have reasonably expected that multiple arrests could result from the execution of two search warrants. At apartment 1509, two of the alleged perpetrators of the robbery were said to be living there. Further, it is not uncommon that a search of a dwelling house could lead to the discovery of illegal contraband such as drugs and weapons. As a result, anyone in the dwelling house could be arrested. In addition, that different accused may be required to go to different courthouses given that some may be young persons is an occurrence that police would not infrequently encounter.

[81] Second, institutional shortages of resources that could delay the processing of accused is not a satisfactory explanation. The police either should ensure the resources are there prior to the execution of the search warrant or, if it turns out more are required following execution, additional resources should be allocated. We must never forget that what hangs in the balance is the accused’s liberty and the Charter right not to be arbitrarily detained. Against that, it is inexcusable to simply contend we did our best in the circumstances given our limited available resources.

[82] I appreciate the Crown submission that the timing of the execution of the warrant, at 6:15 in the morning, contributed to the inability of the police to get the accused to the courthouse in time. However, that timing was in the control of the police.

[83] Third, I do not understand why all the paperwork must be completed before the person is sent to see a justice. I ask rhetorically, is it necessary for all items seized to be processed before the accused is ready to be sent to bail court? While I agree sufficient information needs to be sent to court so that the Crown can knowledgeably conduct a bail hearing, what P.C. Reitsma contends they had to complete seems beyond what is required.

[84] Finally, a first appearance before a justice should be able to be conducted without the need to physically send an accused to court. Recent experiences in the court system due to the unprecedented challenges caused by the pandemic shows this can readily be accomplished. That said, I recognize that this case took place two years ago and P.C. Reitsma’s averment she was unaware of any other way to bring the applicant before a justice was not challenged.

[85] For all these reasons, portions of the explanation offered by P.C. Reitsma remain disconcerting. In this case, the breach of s. 503 resulted from poor judgment or planning and/or inadequate resourcing by the officers involved in the execution of these search warrants.

[86] I recognize that this is not the first time a violation of s. 503 has been raised in the courts. The courts have indicated, time and again, the “overholding” of accused persons is a violation of the Charter and is not acceptable. I can only conclude that messages sent by other judges have not been fully heard or appreciated. Some judges have called it a systemic problem: R. v. Mendez, 2014 ONSC 498, [2014] O.J. No. 317, at paras. 114-119; R. v. Raios, 2018 ONSC 6867, [2018] O.J. No. 6270, at paras. 33-34.

[87] On the other hand, tempting though it may be, it would be wrong without more evidence to condemn the problem as being widespread, routine, or persistent. I have no such evidence aside from reported cases. For example, the applicant has not presented any data or statistical evidence. On the evidence presented here, I am not persuaded that there is a systemic deficiency or some insidious police attitude that has led to the overholding of accused persons in this jurisdiction. It has not been demonstrated that there is some policy, general police approach, or significant structural barrier that has prevented the police from meeting the requirements of s. 503. Thus, I am not persuaded that such illegal detentions are likely to continue into the future unabated: R. v. Piccirilli, 2014 SCC 16, [2014] 1 S.C.R. 309 at paras. 30-31, 35-36.

[88] It is worth emphasizing that the cases where s. 9 has been successfully raised in this context, are but a small fraction of the accused persons who are arrested and go through the court bail system. Put another way, most get to bail court on time.

[89] In the absence of such evidence, each case revolves around the particular facts of the detention.

[90] At the end of the day, I am not satisfied that the applicant has shown that prejudice to the integrity of the justice system will be manifested, perpetuated, or aggravated through the conduct of this trial or by its outcome. The applicant has not shown that this conduct is offensive to notions of fair play and decency and that proceeding with the trial will be harmful to the integrity of the justice system. While the police conduct is troublesome, I find, on the facts of this case, it does not offend society’s sense of fair play and decency. This is so in light of the fact that the police did not deliberately undermine the applicant’s right, they tried to get him to court but were unable to given what they were confronted with, the delay was modestly beyond the 24-hour limit, and that the regardless of the s. 9 violation, the applicant has been properly detained in custody while awaiting his trial so that his liberty interest was not practically affected. The prejudice caused by the police to the integrity of the justice system is isolated in time to the applicant’s early interaction with the criminal intake process and limited in scope to the facts of this individual case. Continuing with the applicant’s trial or its outcome will not manifest, perpetuate, or aggravate this limited prejudice. Lastly, in my view, continuing with this trial or its outcome will not condone this behaviour. I have provided clear judicial denunciation of the police misconduct irrespective of this trial continuing.

[91] Moving on, I also find the second prerequisite for a stay has not been met. The prejudice caused by the abuse in question can be removed by another remedy.

[92] Many of the authorities relied upon by the applicant involve the remedy of the exclusion of evidence where s. 503 was violated: Poirier; Holmes; Mendez; Raios; R. v. Salehi, 2019 BCSC 197, [2019] B.C.J. No. 235; R. v. Rodgerson, 2016 ONSC 6094, [2016] O.J. No. 5886.

[93] Where the facts call for it, it seems to me that this is a fit remedy for breaches of this nature. This remedy is especially apt when statements are taken during the period the accused is detained and not taken to a justice without unreasonable delay. In this case, the applicant does not seek any exclusion of evidence.

[94] More relevant authorities are cases where a stay of proceedings was rejected as a remedy in favour of a reduction in sentence: R. v. MacPherson, 1995 3849 (NB CA), [1995] N.B.J. No. 277 (C.A.); R. v. Rashid, 2010 ONCA 591, [2010] O.J. No. 3789; R. v. Carter, 2016 ONSC 2832, [2016] O.J. No. 2267; R. v. Dawson, 2016 ONSC 3461, [2016] O.J. No. 2799.

[95] The applicant submits that the remedy of a reduction in sentence is not an adequate remedy since it is dependent upon a conviction. If he is acquitted, it is submitted that he is left without any remedy.

[96] While there is a surface appeal to this argument, a closer look reveals it to lack in substance. In assessing whether a stay of proceedings is appropriate, the prejudice that needs to be addressed by the remedy is prospective prejudice and not the redress of past prejudice. A contingent remedy such as a reduction in sentence—contingent on the outcome of the trial—can still address the prejudice. It is its availability and not its certainty that makes it an adequate alternative remedy. Moreover, such a remedy has a logical connection to the deprivation of liberty caused by the police in the first place by failing to abide by s. 503.

[97] I find the case of R. v. Mangat, 2006 20227 (ON CA), [2006] O.J. No. 2418 (C.A.), supportive of this conclusion. In Mangat, the Crown successfully appealed a stay of proceedings based upon a breach of s. 503. The police had not brought Mr. Mangat before a justice without unreasonable delay due to a deliberate decision by the arresting officer to obtain an inculpatory statement. A statement was obtained during this period. The trial judge characterized his arbitrary detention as serious and flagrant. The Ontario Court of Appeal found that the trial judge erred by failing to find that exclusion of Mr. Mangat’s statement was an adequate remedy. That the statement had been already ruled involuntary and would therefore be excluded in any event, did not mean exclusion of the statement was not an adequate remedy. The Court explained this was because the issue in question was not punishment of the police but whether the prejudice could be adequately addressed by a lesser remedy than a stay.

[98] Thus, in Mangat, the practical effectiveness of the alternative remedy was not considered to be determinative. Mr. Mangat argued that given the statement could not be used in any event, this amounted to no remedy. That position was rejected. Likewise, in this case, the fact that a reduction in sentence would only be effective if the applicant is convicted, does not preclude it from being an alternative lesser remedy.

[99] As a parting comment, I wish to emphasize that I have come to this conclusion based upon the nature of the prejudice I have found in this case. A reduction in sentence may not be an alternative remedy to address the prejudice to the integrity of the judicial system if that prejudice is based upon more flagrant or systemic constitutional violations.

[100] For these reasons, the applicant has failed to meet the test for a stay of proceedings. It is not necessary to deal with the third aspect of the test as there is no uncertainty as to whether a stay is warranted.

Justice S. Nakatsuru

Released: October 22, 2020

COURT FILE NO.: CR-19-50000429 DATE: 20201022

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN Respondent

– and –

TWANY DARLING Applicant/Defendant

REASONS FOR JUDGMENT

NAKATSURU J.

Released: October 22, 2020