COURT FILE NO.: CRIMNJ(P) 1770/19

DATE: 2020-10-22

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Robin Prihar for the Crown

• and –

SAAD AL-ADHAMI

Alexei Zaitsev for the Accused

HEARD: July 9-10, 15 by video conference

RULING ON ABUSE OF PROCESS VOIR DIRE

D.E HARRIS J.

1Saad Al-Adhami was a 19-year-old second year student at Glendon College, a quiet satellite campus of York University nestled in the wooded park of the old Wood family estate in North York.

2On September 7, 2018 just before lunch, Mr. Al-Adhami returned to his dormitory after attending classes and was met by two men standing outside the door to his room. They were wearing regular clothes. The two men told Mr. Al-Adhami that they were police officers. The three went inside and Mr. Al-Adhami put down the yogurt he was carrying. The police officers announced that they were arresting Mr. Al-Adhami for four offences: obstruct justice, intimidation of a witness, criminal harassment and mischief. The officers told Mr. Al-Adhami that the offences had to do with his mother. Mr. Al-Adhami was walked out to an unmarked police car, handcuffed and placed in the back seat.

3The police officers were from Peel Region, where the offences were alleged to have occurred. They drove Mr Al-Adhami to their station in Brampton. He was booked. Mr. Al-Adhami spoke to duty counsel and then to his own lawyer, a family lawyer. He was then interviewed by a third police officer about the allegations.

4His mother had made the allegations against him in an interview with the officer-in-charge of the case, Det. Cst. Smith, on July 26, 2018 more than a month before. Det. Cst. Smith was in the station when Mr. Al-Adhami was brought in on September 7, 2018. She summarized the allegations of the complainant in a police arrest report (also known as a synopsis) and a bail document to be used by the prosecution in court.

5It was decided that Mr. Al-Adhami should be held for a bail hearing. This necessitated he be brought before a Justice of the Peace. The police recommended in the paperwork that he should be released from detention but only with surety supervision. The officer-in-charge of the station signed off on this recommendation but it appears the recommendation origainted from Det. Cst. Smith.

6There was evidence on this hearing that there is a “cut-off” to get accused to bail court due to logistical issues. The cut-off was 2:00 p.m. or 2:30 p.m. Mr. Al-Adhami missed the cut-off as he was not ready to be brought to court until about 5:00 p.m. He stayed the night in the cells at the police station.

7Mr. Al-Adhami was transported to court the next day, a Saturday. The Crown in bail court (not Ms. Prihar) stated to the presiding Justice of the Peace:

The Crown has quite serious concerns on the secondary grounds and we’d be seeking his detention at this point.

8Duty counsel for Mr. Al-Adhami said that there was no plan in place as of yet—i.e. no sureties were available—and asked that Mr. Al-Adhami be remanded to Monday for a bail hearing. As a result, Mr. Al-Adhami spent Saturday and Sunday nights in the Maplehurst Correctional Complex in Milton. He testified that his stay at Maplehurst those two nights was terrifying. From there, Mr. Al-Adhami was able to make phone calls to arrange for two potential sureties to attend at court on Monday, September 10, 2018. At the hearing that day, the Crown and the Justice of the Peace both exclaimed how serious were the charges. After a proceeding that took up almost 70 pages of transcript including evidence from the proposed sureties, Mr. Al-Adhami was released on the consent of the Crown on a $7500 bail with two sureties. He has been on this bail for almost two years up to the present time.

9The defence argues that the police ought to have released Mr. Al-Adhami immediately or, at the least, he should not have been held for a bail hearing. In the alternative, the bail hearing ought to have taken place before the weekend, reducing substantially his time in custody. It was also argued that there were significant discrepancies between the complainant’s allegations and the information that made its way into the documents prepared by Det. Cst. Smith for bail purposes. The defence argues that for these reasons this prosecution constitutes an abuse of process and should be stayed.

10I would allow the application and stay the proceedings. The allegations drafted by Det. Cst. Smith for the police and Crown grossly overstated what the complainant had actually said in her police interview. Unfortunately, Det. Cst. Smith was on a medical leave at the time of this voir dire and no explanation for the discrepancies was tendered at this hearing. On the true allegations, if Mr. Al-Adhami was to be charged at all, which is very much open to doubt, no reasonable police officer would have held him for bail. For this reason, virtually the entire course of Mr. Al-Adhami’s detention was unjustifiable and arbitrary.

11Justice Iacobucci said in R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309 (S.C.C.) at paras. 47-49 in dissent:

At the heart of a free and democratic society is the liberty of its subjects. Liberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty.

12The administration of justice cannot give Mr. Al-Adhami back the liberty which he has lost. It can and it should, in light of the unfairness to him and the importance of the court distancing itself from unacceptable state conduct, terminate the criminal proceedings against him.

13In order to fully appreciate the fundamental nature of the discrepancies between what the complainant said and what found its way into the bail documentation, later read by the Crown Attorney at the September 10, 2018 bail hearing, the synopsis will be juxtaposed against the true allegations, starting with the most serious counts: the obstruct justice and intimidation of a witness.

I. ATTEMPT TO OBSTRUCT JUSTICE\INTIMIDATION OF A WITNESS

14In the information drafted and sworn to by the police that was in front of the Justice of the Peace on September 10, 2018, the obstruct justice charge under Section 139(2) of the Code was particularized as “unlawfully and willfully” attempting to obstruct the course of justice in a judicial proceeding by having the victim “recant the allegations” and having the charges against his father dismissed. In the indictment before this court, the request to “recant” was removed. The offence period for this charge was likely a mistake as it specified only two days, from August 31, 2018 to September 1, 2018.

15The witness intimidation count, which charged the same conduct as the obstruct count but from August 31, 2017 to September 1, 2018, was framed under the part of the provision which requires threatening conduct, Section 423(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46. It was alleged that Mr. Al-Adhami “wrongfully and without lawful authority” for “the purpose of compelling [the victim] to abstain from going to required court matters which she had a lawful right to do, use[d] threats [to the victim].” The indictment subsequently filed in this court tracked the same language with respect to this count.

16To facilitate the argument, an agreed statement of fact between the parties was entered into for the purposes of this motion. It was based mainly on the complainant’s statement to the police. Counsel, at my request, also produced the complainant’s actual police statement and agreed that I could make reference to it.

17The synopsis begins by giving some background. The complainant and accused are mother and son. They have been estranged and have not seen each other for a lengthy point of time. The complainant gave a video statement to the police on July 26, 2018. She said that in 2011, she had made allegations against her husband including sexual assault and assault. An arrest warrant was issued but her husband has never been located.

18This is what the bail synopsis said about the obstruct justice allegation:

A. Between the dates of August the 31st of 2017 and September 1, 2018, the accused forced his mother to attend the Peel Regional Police at Square One Community Station B. for the purpose of having the victim recant her allegations against her ex-husband, the accused’ father so that the charges against the accused’ father would then be ultimately dismissed. C. The victim fearing for her safety and feeling psychologically bound, she attended the community station with the accused and spoke to a police officer who advised them to speak with the Crown Attorney’s Office. The victim did not contact the Crown Attorney’s Office as she did not want the charges dismissed.

(Emphasis Added)

A. There was no evidence that the complainant was “forced”

19First, there was nothing in the complainant’s police statement which suggested that her son “forced” her to go talk to the police. He suggested going and she may well have felt some psychological pressure to follow through, but he did not force her in any sense of the word.

B. The purpose was not to have the complainant “recant”

20It was agreed as fact between counsel that Mr. Al-Adhami never asked his mother to “recant.” This inaccuracy is critical. “Recant” has a well recognized import; it means to repudiate an allegation or a statement. The repudiation often takes the form of retracting an allegation of wrongdoing against a person or claiming that they cannot remember making the incriminating statement in the first place. An allegation that someone has asked another to recant brings with it a connotation of impropriety, usually of a criminal nature. Requests to “recant” are common features of witness tampering and obstruct justice prosecutions.

21A typical example is the famous hearsay case of R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, [1993] S.C.J. No. 22. The trial judge in that case, Justice MacDonnell (as he then was) found that the three “recanting” Crown witnesses, all three later convicted of perjury for their testimony, were originally telling the truth to the police and their testimonial recantations were false: see paras. 138-139 per L’Heureux-Dube and Cory JJ. concurring. This is typical in the context of a recantation. Recantations are generally nefarious and generate strong suspicious that the recantations are false.

22That there was no request to “recant” by the applicant in this case was a major difference between the police synopsis and the complainant’s police statement.

The complainant never said that she “feared for her safety”

23While the synopsis said that the complainant “feared for her safety” when she went to the police kiosk with Mr. Al-Adhami, the parties agree that she never said this. Nor, in my view, could it be inferred from what she did say in her police statement. The parties also agreed that Mr. Al-Adhami never used or threatened violence.

What the complainant actually said

24This is what the complainant actually told the police about Mr. Al-Adhami as recounted in her July 26, 2018 police statement:

You know what he asked me he said mom you know what now I’m a big boy. We need to finish this. Now everything finish. It's been years passed. You know you need to come with me to the police station. I said come with you why. To dismiss my dad’s charges. And you know mommy if you do this I will love you so much. You know I know you did this for me. I said to him Saad this is not in my hand. Your dad this did this so he need to come here and face it. He said yeah so you can put my daddy in jail. That’s what you want. I said no Saad. Saad listen if I’m a liar they will put me in jail. You know if I’m lying they will put me, so let him come. Why he waited all this years [sic], and he’s not coming. You know I’m going to help my dad. I’m a big man now. I need to help my dad. You need to come with me to the police station, and he said I have to come or he’s not going to talk to me anymore. So I followed him. I said okay.

Conclusion

25The synopsis conveyed that Mr. Al-Adhami had forced his mother to attend the police station, instilling fear in her, and demanding that she recant her allegations of criminal offences against her ex-husband, his father. He was coercive. This type of situation is routinized in criminal law and, particularly within the “domestic” context, is likely to prompt concern for the complainant’s welfare in the minds of police officers, Crown Attorneys and judicial officers. Offences in which there is an attempt to tamper or interfere with a witness subvert the adjudicative process at the heart of our system of justice. The Court of Appeal has recently said that these types of offences should normally lead to a penitentiary sentence: R. v. Hopwood, 2020 ONCA 608, at paras. 22-24.

26The actual scenario was entirely different. The young man was asking his mother, out of love for him (the son), to agree not to proceed with the allegations. He did not threaten her; he did not ask her to change her evidence. There appeared to be a considerable amount of naivete behind Mr. Al-Adhami’s conduct.

27Another important feature of the conduct here was that it took place right in front of a police officer. A request to recant an allegation of wrongdoing against another is not usually acknowledged and publicized. But that is what happened in this case. In the bail synopsis, a careful listener or reader would have perhaps thought it odd that the attempt to have the mother “recant” was argued out in front of a police officer. But that would likely have been submerged under the indications of coercion suggested in the synopsis—the recantation, the complainant’s fear and the allegations of force. However, when those false allegations are removed, the openness of Mr. A’s approach to the police officer takes on quite a different complexion.

28Furthermore, what did not find its way into the synopsis was that the complainant in her statement said that the police officer took Mr. Al-Adhami aside and talked to him alone. While this was not a major omission from the synopsis, counsel argues that if anything was improper, the police officer would have charged Mr. Al-Adhami then and there. Although this is not necessarily the case, the above-board, openness of this interaction weighs heavily against the viability of an obstruct justice or intimidation of witness charge.

29The gravamen of the obstruct justice offence as particularized was a request to “recant the allegations.” This was false. Even without this particularization, in my view there was no case on the charge of obstruct justice. The charge was predicated on Section 139(2)(a) of the Criminal Code, which requires that the accused has willfully attempted “to obstruct, pervert or defeat the course of justice” in a judicial proceeding including, without restricting the generality of this, attempting “to dissuade a person by threats, bribes or other corrupt means” from giving evidence. Here, of seminal importance, there was no request that the complainant give false evidence or change her evidence. The majority of the leading case law in this area, including the key English cases, are based on attempts to have a witness alter their evidence: R. v. Toney; R. v. Ali (1993), 97 Cr. App. Rep. 176 (C.A.), [1993] 2 All E.R. 409; R. v. Kellett (1975), 61 Cr. App. Rep. 240 (C.A.), [1975] 3 All E.R. 468; R. v. Targon (1981), 1981 3326 (ON SC), 61 C.C.C. (2d) 554 (Ont. Co. Ct.); R. v. Kotch, 1990 ABCA 348, 61 C.C.C. (3d) 132 (Alta. C.A); R. v. Ranger, [1998] O.J. No. 1240 (Ont. Sup. Ct.); R. v. Graham (1985), 1985 3644 (ON CA), 20 C.C.C. (3d) 210 (Ont. C.A.); R. v. Hearn, 1989 3938 (NL CA), [1989] N.J. No. 28, 75 Nfld. & P.E.I.R. 13, 48 C.C.C. (3d) 376 (Nfld.C.A.)

30On some occasions, the obstruct justice provision is extended beyond this context. Dambrot J. in R. v. Valentine, [2003] O.J. No. 3753 (Ont. S.C.J.), at paras. 29-30 discussed situations in which there was no overt request to change one’s evidence. He gave three examples: 1. A request of a witness to withdraw an allegation because both the witness and the accused are black; 2. A request to a witness to withdraw because the accused was a friend or an important person; 3. Asking the complainant to withdraw out of sympathy for the consequences of a prosecution on an accused person. It was held that the first two examples may have a tendency to obstruct while the third occurs regularly in pre-trial discussions and does not.

31Very few, if any authorities, posit guilt on the hypothetical foundations of these examples. It stretches to its limits--or beyond--the concept of “corrupt means. This case does not approach this extreme. The situation here is much closer to the last example given than to the others. The gist of the applicant’s approach to the complainant was based on an appeal to sympathy and the length of time that had gone by since the charges were laid. The complainant was not fearful; she was not forced to attend on the police officer; she was not asked to alter her evidence. The police officer did not think anything was untoward and directed Mr. Al-Adhami and his mother to the Crown Attorney’s Office.

32The second count in the information, the intimidation of a witness count that charged the same conduct but under a different offence making provision, clearly had no valid factual foundation. The gravamen of the offence was threats made by Mr. Al-Adhami to his mother. As recounted above, it was admitted between the parties that there were no threats. There was also no “wrongful conduct”, another element required by the provision: R. v. Armstrong, (2012) 2012 BCCA 248, 288 C.C.C. (3d) 282 (B.C.C.A.). leave refused 452 N.R. 400n (S.C.C.)

II. THE CRIMINAL HARRASSMENT ALLEGATION

33After the obstruct justice and intimidation of the witness counts, the synopsis shifted to the criminal harassment allegation. The information before the bail court charged under Section 264(2)(b) of the Criminal Code that Mr. Al-Adhami had harassed or been reckless whether he had harassed his mother by repeatedly communicating with her, causing her to reasonably fear for her safety. The synopsis stated that in the offence period of August 2017 to September 2018,

A. The accused has been attending his mother’s civil court matters that do not involve him. B. He has been persistently calling and texting his mother as well as showing up at her friend’s home looking for her. The alleged victim has received numerous text messages and phone calls from the accused. C. During this time period, on many occasions, the accused has shown up in locations that the victim is present at or known to be at, without reason to be at these locations. D. On September the 14th of 2017, [the victim] told the accused she no longer wishes to have any communication with him and she asks that he stop contacting her in any way. E. The victim has not been attending work and will not answer her phone if she receives an unknown number or a number that is not known to her out of fear of the accused contacting her.

A. The Mother’s Civil Proceedings Did Not Involve Him

34This was questionable; the court matters did involve him, at least tangentially. The impression that Mr. Al-Adhami was stalking his mother by going to her court proceedings was not the full story. The Crown and defence agree that the civil court proceedings referred to in the synopsis involved a condominium in which Mr. Al-Adhami resided upon arriving in Canada in 2017. It was originally in his father’s name. There was litigation between Mr. Al-Adhami’s parents over the condominium. On or about September 14, 2017 the complainant was granted possession of the unit by a court order and the accused was evicted at her instance.

35There were two incidents in which Mr. Al-Adhami was present at the civil proceedings involving the condominium. Mr. Al-Adhami’s conduct as observed by the complainant at these two proceedings supports the conclusion that he took his father’s side in the dispute. But he had a reason to be there, one known to Det. Cst. Smith at the time she wrote the synopsis and bail information.

B. Mr. Al-Adhami Persistently Called and Texted his Mother—She Received Numerous Text Messages and Phone Calls from the Accused

36The complainant told the police this, but the police were aware, or should have been aware, that her conclusion was not supported by the evidence. It was agreed as fact between the parties on this motion that calls came into the complainant’s cell phone, but she never answered, never called back and never heard her son’s voice on the other line. There were no call identification logs or other corroborating information provided. In summary, the synopsis did not reveal that the evidence to support the proposition that Mr. Al-Adhami had initiated the communications was very weak.

37It was also inaccurate that there were persistent and numerous texts from Mr. Al-Adhami. The only text messages received from Mr. Al-Adhami were within the three days between September 12-14, 2017, at the very beginning of the 12 month offence period. These texts were an exchange between Mr. Al-Adhami and the complainant, his mother. All were written at the time Mr. Al-Adhami was evicted from the condominium. The texts were produced on this hearing. He complained about being evicted and she attempted to soothe him. They were not threatening.

C. During the 12 Month Offence Period, on Many Occasions Mr. Al-Adhami Showed up Where the Complainant was Present or Known to Be

38This was wholly inaccurate. Mr. Al-Adhami showed up once at a friend of the complainant’s looking for her. This had already been stated in the immediately preceding sentence of the synopsis labelled letter B, in the excerpt from the synopsis reproduced at paragraph 33 above. And there were also the two attendances at the civil proceedings in respect of the condominium. This too had already been stated immediately before in the synopsis at letter A, as quoted above at paragraph 33. The defence and Crown agreed that these three instances were the sum total. Because of the direct proximity of these other more specific allegations in the paragraph, the allegation here that Mr. Al-Adhami showed up “on many occasions”, in its ordinary linguistic construction referred to an additional allegation. But it was not. This sentence was false and contributed in a major way to the misleading impression of the synopsis.

D. On September 14, 2017, the Complainant Told Mr. Al-Adhami That She Did Not Want Any Further Communication With Him

39The parties agree that this was false, the complainant never said this.

E. The Complainant Has Not Been Attending Her Civil Matter, Has Not Been Attending Work and Will Not Respond to Phone Numbers Not Known to Her, All Out of Fear of Mr. Al-Adhami

40The truth was that the complainant did not attend work until October 2018, a date outside of the offence period, but it was because she was on maternity leave prior to this. While it is true that she expressed concern about returning to work due to her concern the accused might show up there, she never did say that the actions of the accused caused her to stop attending work. It was not alleged that the Applicant ever showed up at her place of employment. The complainant told the officer, although it did not make it into the bail paperwork, that Mr. Al-Adhami did not know where she lived.

41In the end, the case on criminal harassment was much weaker than portrayed in the synopsis and bail information. The communications were much less frequent than was conveyed. The statement that the complainant was in fear of her son from the obstruct allegations was false. There were no threats of violence made at any time. In total, the basis upon which it could be said that the complainant had a reasonable fear of the accused was not nearly as strong was conveyed in the bail documents.

III. THE MISCHIEF ALLEGATION

42This last count, count 4, charged mischief under Section 430(1)(c) of the Code during the same 12-month offence period as the other counts, specifying that Mr. Al-Adhami was obstructing, interrupting, or interfering with the “complainant’s lawful use …of property, to wit: her personal wellbeing in her home.” I was informed during the hearing that if the case against Mr. Al-Adhami proceeded to trial, this count would be withdrawn. Although it was included by Det. Cst. Smith in her bail synopsis and bail information, neither the Crown Attorney at the bail hearing nor Ms. Prihar before me, was able to explain any possible factual foundation for this charge. In my view, there is nothing in the record which could conceivably support it.

THE LAW

43On behalf of Mr. Al-Adhami, it is argued that the Section 9 Charter right not to be arbitrarily detained or imprisoned was violated by the police not releasing Mr. Al-Adhami at an earlier stage of the detention. There were two aspects to this: 1. The arresting officers and the officer-in-charge, based on the information in the synopsis and bail information written by Det. Cst. Smith, ought to have released the accused early on; and 2. The discrepancies between the true allegations and the synopsis and bail information were an important aspect of the Charter breach and should have led either to a quick release or, in any case, to a much shorter detention.

44I would give effect to this second submission. Before delving into it however, the first argument should be briefly considered. Based on what the other police officers at the station knew, in my view, they acted reasonably. The officer-in-charge, Staff Sgt. Deangelis, did not fetter his discretion on the basis of this being a “domestic” case: see R. v. Rashid, 2010 ONCA 591, 259 C.C.C. (3d) 289 (Ont.C.A.). He gave it individual consideration. Even though not involving intimate partners, it was understandable that he would be careful and cautious. The emotional undercurrents in a domestic context can never be fully known by another person. As experience shows, violence can erupt unexpectedly. The police have a broad discretion and must be given some latitude in these matters. The offence appeared quite serious and protecting the complainant was all important.

45That is not to say that a swift release would not also have been a reasonable decision. The allegations were stale, and the police obviously did not believe that they were urgent, having taken over a month to act on them since the complainant gave her statement in late July. Furthermore, greater alacrity in getting Mr. Al-Adhami to court and having him released would have been preferable in conformance with the 24-hour limit in Section 503(1)(a) of the Code. This does not, however, rise to a Charter breach on this record.

46One further aspect requires comment. When Mr. Al-Adhami did come up for bail on the Monday and had sureties present, release was granted. In my view, if the police had explained the bail process to Mr. Al-Adhami the afternoon of his arrest, he could have made calls to his eventual sureties and had their support in court the next morning. He would have been released on the Saturday as opposed to waiting two more full days. Ms. Prihar agreed that whenever possible police ought to explain the bail process to an accused and facilitate phone calls to potential sureties in order for the police to carry out their obligations to expedite release from custody. If the police facilitate bail in this way, it would not only prompt the early release of accused persons but increase the efficiency of the entire system. It would fight delay complacency from the front end: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 (S.C.C.) at para. 40; R. v. K.J.M., 2019 SCC 55, [2019] S.C.J. No. 55 (S.C.C.) at para. 84

47The picture changes when one looks at the true state of the allegations. “Arbitrary” detention or arrest is a multifaceted concept with several potential manifestations. First, an arrest without both objective and subjective grounds to believe an offence has been committed is unlawful and may well be arbitrary. As Justice Cory said in R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, [1990] S.C.J. No. 12, at para. 14,

Without such an important protection [reasonable grounds], even the most democratic society could all too easily fall prey to the abuses and excesses of a police state.

Also see R. v. Feeney, 1997 342 (SCC), [1997] 2 S.C.R. 13, [1997] S.C.J. No. 49, at paras. 30-37.

48Prior to Storrey, it had been suggested that an arrest falling just short of reasonable grounds may not be arbitrary in the Section 9 of the Charter sense: R. v. Duguay, 1985 112 (ON CA), [1985] O.J. No. 2492, 18 D.L.R. (4th) 32 (Ont. C.A.), at para. 25; aff’d 1989 110 (SCC), [1989] 1 S.C.R. 93. As it descends below the reasonable grounds standard, an arrest at some point becomes arbitrary.

49In this instance, there were clearly no reasonable grounds in the objective sense in reference to the allegation of mischief—a charge that no one could even explain what it pertained to—or the intimidation of a witness. As discussed, the gravamen of the intimidation count required threats from the accused, of which there were none.

50My best judgment with respect to the obstruct justice count is that openly pleading with a complainant in front of a police officer not to proceed to trial—in the erroneous belief that it is their call to make—while threatening to withhold familial affections, is insufficient to give rise to reasonable grounds. With respect to the criminal harassment, the instances of contact which were provable were the texts over three days, the subject matter of which was the condominium and his eviction from it, appearances at two court dates, and the one-time attendance at the friend’s house. In my view, the lack of the essential element of reasonable fear for safety and the lack of evidence that the accused knew or was willfully blind that he was harassing his mother are major deficiencies and lead to the conclusion that there was a lack of reasonable grounds on this count as well: R. v. Krushel (2000) 2000 3780 (ON CA), 142 C.C.C. (3d) 1 (Ont. C.A.) leave refused [2004] 4 S.C.R. vi.

51I recognize that in light of the minimal reasonable grounds standard, reasonable people could differ with respect to the viability of these two charges. At the least, it can be said with confidence that there was no prima facie evidence on either. If there had been a preliminary hearing, neither charge would survive based on what was alleged in the complainant’s statement to the police. Going further to say there were no reasonable grounds may be open to debate. In any case, because of the second aspect of arbitrary detention, it is unnecessary to finally resolve the issue of reasonable grounds.

52This second aspect of arbitrary detention is a detention or arrest which, although originally lawful, continues on past the point it can be justified. The defence on the evidence adduced on this voir dire argued that Mr. Al-Adhami should have been released more or less immediately.

53The police have a statutory and common law obligation to release an individual from arrest and detention unless there are good reasons to hold him or her. There are a series of provisions in the Criminal Code, now reinforced since the time of the events in this case, requiring police officers to use restraint in arresting and detaining suspects. Justice Trotter calls this “police bail.” Some of the provisions only relate to charges less serious than the straight indictable obstruct justice count charged in this case: see Section 495(2)(d) and (e) of the Criminal Code enjoining a police officer not to arrest a person without warrant unless the public interest requires it and Section 497 placing an obligation to release on a police officer after an arrest unless detention is required in the public interest.

54However, the parallel provision in Section 498 of the Code further down the chronology of a detention did apply to all the charges against Mr. Al-Adhami and imposes a “least restrictive release” obligation upon the officer-in-charge subject to the requirements of the public interest. The individual should be released as soon as practicable with, in ascending order, the intention of compelling attendance in court by way of summons, issuing a promise to appear or imposing a recognizance without sureties in an amount not exceeding $500. The non-exhaustive circumstances enumerating and giving meaning to the public interest weighing against release are: to establish identity, prevent continuation of the offence or to ensure a person will attend court: Section 498(1.1) of the Code.

55The obligation to release incumbent upon the police corresponds with the “ladder principle” obligation on a judicial officer in the context of bail release under Section 515(2) of the Code. The Supreme Court of Canada in R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, stressed the importance of strict adherence to the ladder principle, defining it as requiring release “at the earliest reasonable opportunity and... on the least onerous grounds”: at paras. 29 and 67.

56Since the events at issue in this case, Parliament has merged the imperatives of police release with that of judicial release.¹ The police obligation to release is now all the more emphatic. Section 493.1 of the Criminal Code reads:

493.1 Principle of restraint

In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) or 515(10), as the case may be.

(Emphasis Added)

57In my opinion the legislative provisions and the common law required the rigorous implementation of the ladder approach even before this addition to the Criminal Code made it explicit. The purpose of Section 493.1 was simply to codify the common law. In the circumstances of the true allegations, which were of course unknown to the officer-in-charge, the police were obligated to release as soon as possible on the least onerous release consistent with the public interest. Translated to the evidence in this case, this required, at the worst, that a police officer release Mr. Al-Adhami on a recognizance without sureties under Section 498(1)(c) of the Code .

58The only possible concern under the public interest was a continuation or repetition of the offence. It is evident that the police did not themselves view this as pressing as they took no action between the time when the complainant’s statement was taken on July 26, 2018 and the date of the arrest, September 7, 2018. A condition of release could have been to have no direct or indirect contact with his mother. Instead, holding him for three nights was unjustifiable, a violation of Section 498 of the Code and arbitrary within Section 9 of the Charter: R. v. Brooks 2001 28401 (ON SC), [2001] O.J. No. 1563, (2001), 153 C.C.C. (3d) 533 (Ont. S.C.J.) at para. 21

59There is now a considerable body of Section 9 jurisprudence, mostly in the drinking and driving context, considering the topic of “overholding”: i.e. holding an arrestee in the police station for longer than is justifiable: e.g. R. v. Price, 2010 ONSC 1898, [2010] O.J. No. 1587 (S.C.J.); R. v. Acton, 2018 ONCJ 99 (Ont. Ct. J.), at para. 25; R. v. Cheema, [2016] O.J. No. 1787 (Ont. C.J.), at para. 16, aff’d on other grounds 2018 ONSC 229, [2018] O.J. No. 121 (Ont. S.C.J.); R. v. Lorenzo, 2016 ONCJ 634 (Ont. Ct. J.) at paras. 27-30.

60The Court of Appeal has said in the context of delay in the holding of a bail hearing (R. v. Zarinchang, 2010 ONCA 286, 99 O.R. (3d) 721 (Ont. C.A.)):

38 In a speech to the Criminal Lawyers' Association on November 28, 2009, our colleague, Justice Marc Rosenberg, referred to Professor Friedland's 1965 report on the bail system in Toronto. Professor Friedland said that "the law should abhor any unnecessary deprivation of liberty and positive steps should be taken to ensure that detention before trial is kept to a minimum."

39 Unreasonably prolonged custody awaiting a bail hearing gives rise to a breach of s. 11(e) of the Charter: see, for example, R. v. Villota, (2002), 2002 49650 (ON SC), 163 C.C.C. (3d) 507 (Ont. S.C.J.).

61Another pertinent area of overholding leading to an arbitrary detention is the failure to bring an accused before a Justice of the Peace within 24 hours of arrest as required by Section 503(1)(a) of the Criminal Code. Failure to adhere to this time frame has been held to lead to an arbitrary detention: R v. Reilly, 2018 ABPC 85, [2018] A.W.L.D. 1977 (Alta. P.C.) at paras. 44-54, aff’d R. v. Reilly, 2020 SCC 27. In Reilly, a 36 hour delay bringing the accused before a Justice of the Peace led to the finding of an abuse of process and a stay of proceedings.

62After the unlawfulness of the arrest and the overholding, there is one more Section 9 element which comes to the fore in this case. While the arrest and the protracted detention seize on the detrimental effects upon a detainee, the underlying cause is at the foundation of this case. Det. Cst. Smith took the complainant’s statement. In writing up the synopsis and the bail information document, she grossly overstated the evidence to the point of outright falsification. This is entirely different from a situation where a member of the public may distort allegations of criminal conduct against another person: R. v. Golub, 1997 6316 (ON CA), [1997] O.J. No. 3097, 117 C.C.C. (3d) 193 (Ont. C.A.), leave to appeal refused [1997] S.C.C.A. No. 571. Here, a police officer, bound by the Charter, spiked the allegations with misleading allegations of criminality. The arbitrariness is demonstrated by the distance between the truth and the contents of the police bail materials.

63This mindset was the driving force behind the arrest and the overholding. There is a definition of Section 9 arbitrariness which fits the nature of this Charter breach. The Court of Appeal in R. v. Cayer, 1988 9879 (ON CA), [1988] O.J. No. 1120, 42 C.R.R. 353, was confronted with an argument that arresting a drinking and driving suspect was unnecessary and improper. This argument was rejected. But in the process, the Court of Appeal said,

38 In our view, an arbitrary detention for the purpose of these appeals is a detention which is capricious, despotic or unjustifiable.

64This was derived from a quotation from Black’s Law Dictionary (5th ed., 1979) at p. 96 defining “arbitrary.” The definition as quoted in the judgment also included this: “Ordinarily, ‘arbitrary’ is synonymous with bad faith or failure to exercise honest judgment…” That aptly describes Det. Cst. Smith’s conduct in this case. The inflation of the complainant’s statement was done in bad faith and was a failure to exercise honest judgment.

65Cayer remains good authority and has been relied upon by other courts: Collins v. Brantford Police Services Board, 2001 4190 (ON CA), [2001] O.J. No. 3778, 158 C.C.C. (3d) 405 (Ont. C.A.), at paras. 18-19; R. v. Sieben, 1989 ABCA 258, [1989] A.J. No. 939, [1990] 2 W.W.R. 97, at paras. 69 and 74-77; R. v. Gill, 2016 ONCA 667, [2016] O.J. No. 5366, 134 W.C.B. (2d) 147; R. v. Campbell, 2003 MBCA 76, [2003] M.J. No. 207, [2004] 1 W.W.R. 208, at paras. 40-42.

66In addition, viewed from the perspective of the police common law powers, far from justifying what happened here, these also demonstrate that it was arbitrary. The Supreme Court of Canada has held,

Absent a law to the contrary, individuals are free to do as they please. By contrast, the police (and more broadly, the state) may act only to the extent that they are empowered to do so by law.

R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 15.

67Also see R. v. Dedman, 1985 41 (SCC), [1985] 2 S.C.R. 2 (S.C.C.), at p. 35; R. v. Godoy, 1999 709 (SCC), [1998] S.C.J. No. 85, [1999] 1 S.C.R. 311, at para. 18; R. v. Simpson (1993), 1993 3379 (ON CA), 12 O.R. (3d) 182, 79 C.C.C. (3d) 482 (Ont. C.A.), at p. 499.

68The Section 9 guarantee against arbitrary detention protects “one of the most fundamental norms of the rule of law. The state may not detain arbitrarily, but only in accordance with the law.” Charkaoui, Re 2007 SCC 9, [2007] 1 S.C.R. 350 (S.C.C.) at para. 88. Mr. Al-Adhami was not detained in accordance with the law; his detention was arbitrary and a violation of the Charter. The next issue is the appropriate remedy for the breach.

REMEDY FOR THE BREACH OF SECTION 9 OF THE CHARTER

69This is one of those clearest of cases in which the drastic remedy of a stay of proceedings and the termination of this proceeding is required. As was said by the Supreme Court in R. v. Jewitt, 1985 47 (SCC), [1985] 2 S.C.R. 128, 20 D.L.R. (4th) 651 (S.C.C.), at pp. 136-137, this is a case in which:

…compelling [the] accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency ...

70The jurisprudence has divided abuse of process cases into two basic categories: that which impairs a fair trial and that which falls into a “residual” category in which the integrity of the process is compromised: R. c. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309 at paras. 30-47; R. c. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509 (S.C.C.); R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 (S.C.C.); Canada (Minister of Citizenship & Immigration) v. Tobiass, 1997 322 (SCC), [1997] 3 S.C.R. 391 (S.C.C.).

71The three requirements of the abuse of process test as articulated in Babos at paragraph 32 are: 1. Prejudice that will be manifested, perpetuated or aggravated through the conduct of the trial or its outcome; 2. No alternative remedy is available for the prejudice; and 3. Where there is uncertainty after steps 1 and 2 or where it is the residual category in issue, there must be a balancing of the interests in favour of a stay against the societal interests in a decision on the merits.

72In elaborating on the first part of the test, Justice Moldaver said in Babos:

35 … when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial — even a fair one — will leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency. This harms the integrity of the justice system.

38 … in a residual category case… the question to be answered at the first stage of the test is the same: whether proceeding in light of the impugned conduct would do further harm to the integrity of the justice system. While I do not question the distinction between ongoing and past misconduct, it does not completely resolve the question of whether carrying on with a trial occasions further harm to the justice system. The court must still consider whether proceeding would lend judicial condonation to the impugned conduct.

73In the case of Mr. Al-Adhami, there was serious misconduct with serious consequences. The prejudice can be catalogued into the physical deprivations or indignities suffered by Mr. Al-Adhami and prejudice to the integrity of the process. These categories are not mutually exclusive. The physical deprivations necessarily had the effect of compromising the integrity of the process.

74With respect to the physical deprivation, the main component was a detention for three nights when only a few hours could possibly be justified. This amounted in law to four days of custody, six days with the usual Summers credit. Reasonable bail would have been, at the highest, a prompt release with a condition to stay away from his mother. The police either had no right to arrest or, if they did, they had no right to overhold for a period of three nights. Det. Cst. Smith did not act in good faith and did not exercise honest judgment. The unjustifiable deprivation of physical liberty goes to the core of individual rights in a constitutional democracy. Continuing Mr. Al-Adhami’s arbitrary detention violated his Section 11(e) Charter right not to be denied reasonable bail without just cause: R. c. Pearson, 1992 52 (SCC), [1992] 3 S.C.R. 665, [1992] S.C.J. No. 99, at para. 48.

75Some of the circumstances of Mr. Al-Adhami’s detention increase the seriousness of the negative physical effects on him. In the police station cell, he was given blankets to keep him warm. Those blankets were almost completely ineffectual. Eventually he had three of them but he was still very cold. He asked for more but was not supplied with them. There seems to be reluctance to give the prisoners more than three. The blankets are plastic on one side and a very light synthetic fabric on the other. The police officers who testified on the voir dire appeared to acknowledge that they were inadequate. I would also note that Mr. Al-Adhami was not supplied with any food and did not eat anything from an early morning granola bar, through the time of his arrest, until about 6:00 p.m. It could be said that those in police custody cannot expect luxury accommodations or service. But all inmates are entitled to basic human dignity, decency and respect. I need not finally grade how Mr. Al-Adhami was treated in custody. It is sufficient to say that it did raise significant concerns.

76Mr. Al-Adhami said that he was strip searched in the open sight of other inmates when he was admitted into the Maplehurst Correctional Centre for his two nights there. If this is correct, it would be highly irregular and improper, but it is unnecessary to determine whether this happened or not.

77Continuing with the other physical detriments, Mr. Al-Adhami was on a substantial surety bail for almost two years. This in itself can be a significant hardship: R. v. Downes, 2006 3957 (ON CA), [2006] O.J. No. 555, 205 C.C.C. (3d) 488 (Ont.C.A.).

78In terms of the effect on the integrity of the administration of justice, in fixing the police conduct along a fault spectrum, this was clearly no accident. Each of the many inaccuracies were allegations which militated towards Mr. Al-Adhami’s detention and away from his release. There were no exceptions. Furthermore, no part of the allegations was untouched by some degree of distortion. The consistent slant of the allegations and the way in which they permeate every aspect of the synopsis indicate a high degree of purposive behaviour. Det. Cst. Smith was not available to testify and did not tender an explanation. An eerie Kafkaesque feeling remains: Why was Mr. Al-Adhami treated so poorly and the allegations so grossly distorted? We will probably never know.

79The crux of the matter for our purposes is the impossibility of imagining an explanation that could decrease, as opposed to increase, the seriousness of Det. Cst. Smith’s conduct. At the very least there was a high degree of negligence; at the most, there was deliberate malice. It is difficult to situate the conduct along that continuum on this record but, ultimately, it is unnecessary. A high degree of negligence with the dire consequences it had on Mr. Al-Adhami is more than sufficient to demonstrate an abuse of process.

80This case appears to be an aberration. There are few if any similar instances in Canadian jurisprudence. If, however, the police regularly took advantage of their authority to distort allegations with the purpose or effect of prejudicing accused persons and their liberty on bail release, that would be a major problem. Under our law, as occurred in the case at hand, this type of unfairness can rarely be unearthed at the bail stage. The accused, not yet having disclosure, is generally powerless to effectively rebut what is in the synopsis and the bail information. For this reason, the police must be unfailingly scrupulous in stating the allegations. Release after arrest and apprehension, like judicial interim release as emphasized by the Supreme Court over the last five years beginning with R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, is a tremendously important facet of our system of justice.

81There is no alternative remedy for the misconduct that occurred in this case other than a stay of proceedings. Nothing can give Mr. Al-Adhami back the liberty taken from him. But a stay will ensure that there is no perpetuation of the unfairness visited on Mr. Al-Adhami.

82Moving to the third step, the balancing test, it serves only to confirm that a stay is necessary. Justice Moldaver held in Babos.

41 … Where prejudice to the integrity of the justice system is alleged, the court is asked to decide which of two options better protects the integrity of the system: staying the proceedings, or having a trial despite the impugned conduct. This inquiry necessarily demands balancing. The court must consider such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits. [footnote omitted] Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it. When the conduct in question shocks the community’s conscience and/or offends its sense of fair play and decency, it becomes less likely that society’s interest in a full trial on the merits will prevail in the balancing process. …

(Emphasis Added)

Also see Zarinchang, at para. 60; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32 at para. 72

83The seriousness of the misconduct prejudicing Mr. Al-Adhami and the integrity of the process shocks the community’s conscience, in my view. Mr. Al-Adhami, a young man with no criminal record, under false pretences, has served time in custody he should never have served. The system failed him. Balanced against this, the true case against Mr. Al-Adhami was between weak and non-existent. It was neither strong nor serious. The value in a prosecution on the merits is meagre. In the final balancing, the public interest in the case was clearly superceded by the harm to the integrity of the system. The balancing process reinforces the assessment that this prosecution should be stayed.

84In Babos, Justice Moldaver referred to a hypothetical to illustrate the operation of the residual category. He said that the unfairness to an accused caused by jury tampering by the police could probably be cured by a new trial. But a stay may well be necessary “to redress the threat to the integrity of the justice system.” (at paras. 46-47). This is analogous to the present case. There was also a grave distortion to the adjudicative function; it occurred at an earlier, preliminary stage but the liberty of the accused was on the line, just as liberty is at stake at trial. False allegations against an accused person by the police are totally unacceptable. This case exemplifies the harm that can be done.

85The truth was distorted and inflated by those entrusted with the integrity and reputation of justice. State misconduct contaminated the process at its very foundation. It is necessary to denounce what occurred. To continue the trial would condone the impropriety. This is the clearest of cases. A stay must be imposed.

THE DISPARAGEMENT OF COUNSEL ISSUE

86Counsel argued a Section 10(b) right to counsel issue arising from the police interview of Mr. Al-Adhami shortly after his arrest. Counsel’s position is that the police impermissibly disparaged counsel and the advice to remain silent at the beginning of the interview. Since it was fully argued it should be canvassed. In the circumstances here, my opinion is that the police stepped over the line and violated Mr. Al-Adhami’s right to counsel.

87Upon his arrest in his dorm room, Mr. Al-Adhami was given his right to counsel and the primary and secondary cautions. Once at the station, he called his family law lawyer but had to leave a voice mail for her. He then was offered duty counsel as an alternative and called and had a brief conversation with duty counsel. Somewhat later, he was able to speak more fully to his personal lawyer. The police did an admirable job of facilitating the opportunity to consult with counsel.

88D.C. Morrison interviewed Mr. Al-Adhami. He had no prior involvement in the investigation and read only the synopsis to familiarize himself with the case. Mr. Al-Adhami claimed that the officer made a comment disparaging counsel as he was taken out of the cell in the police station but I do not have to decide whether this took place.

89At the beginning of the interview, after telling Mr. Al-Adhami that he was charged with obstruct justice, intimidation, criminal harassment and mischief, and ensuring that he had been given his right to counsel and spoken to a lawyer, this exchange took place:

OFFICER: … Do you have any questions for me before we get started?

Al-ADHAMI: Me, um, I just-, that my lawyer told me not to, you know, make any statements and...

OFFICER: Was that...

Al-ADHAMI: ...that's all.

OFFICER: ...Duty Counsel or is that a actu-, your lawyer?

Al-ADHAMI: No...

OFFICER: 'Cause you said...

Al-ADHAMI: ...my lawyer.

OFFICER: ...you just sp-, you s...

Al-ADHAMI: I spoke with two people.

OFFICER: So you did speak...

Al-ADHAMI: Duty Counsel...

OFFICER: ...to a lawyer.

Al-ADHAMI: ...and both of them said the same thing.

OFFICER: Okay. All right. Um, well, that's what they say to everybody. I'm not gonna lie to you, right?

Al-ADHAMI: Mm-hmm.

OFFICER: Um, so you're here obviously for a reason.

Al-ADHAMI: Mm-hmm.

OFFICER: And you were-, were you explained why you're here?

(Emphasis Added)

90About a minute later, the interview continued on the same theme:

OFFICER: So the way this works is like I said, well, I wouldn't be doing my job if I didn't at least come down and talk to you, right?

Al-ADHAMI: Mm-hmm.

OFFICER: 'Cause basically your mom's given her side of the story, and we've arrested you based on that, right? Because we have ground to believe that you committed those offences. You know, it's our job as Criminal Investigators to speak to everybody involved. Now being including you, 'cause you're arrested, right?

Al-ADHAMI: Okay.

OFFICER: So I'm not-, that's why I'm giving you the opportunity to speak and just to explain. I mean, I know your lawyer and the Duty Counsel said not to speak, which is fine, that's the advice they give to everybody, right? They're not the ones sitting in jail. They're the ones at home taking a phone call from you, and that's what they tell people, right?

Al-ADHAMI: (Nods head yes).

OFFICER: So we don't have to get into detail of what actually transpired, but I mean obviously there's a, a history, right, between y-, within your family, right, with your mother and your father?

(Emphasis Added)

91Since the time of R. v. Broyles, 1991 15 (SCC), [1991] 3 S.C.R. 595, 120 A.R. 189 (S.C.C.) (para. 38) and R. v. Burlingham, 1995 88 (SCC), [1995] 2 S.C.R. 206, 124 D.L.R. (4th) 7 (S.C.C.), the law has been clear that the police cannot disparage counsel, the primary source conveying to a detainee their constitutional right to remain silent. Up to the point where the accused’s will is overborne, persuasion and manipulation can be used to prompt an accused to give up his right to silence and talk to the police: R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405. But to allow law enforcement authorities to directly denigrate defence counsel, a vital pillar of our adversarial system both at the investigatory stage and at trial, has never been tolerated. If the police, in their privileged and powerful position over a detainee, could neutralize defence counsel in this way, the equilibrium between the individual and the state maintained by defence counsel’s constitutional role as a “lifeline” to the accused would be thrown out of balance (R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, 366 C.C.C. (3d) 103 (Ont. C.A.), at para. 45). The police power over the accused would be without an effective counterbalance.

92The only real question in these type of situations is whether the conduct of the police amounts to disparagement or belittlement. This is an interpretative task. Perhaps part of the problem has been that the facts of Burlingham and Broyles were so egregious that subsequent cases raising the same issue have paled in comparison. But that approach is a misreading of Justice Iacobucci’s clear words. It is no where said in Burlingham that the police conduct must rise to the level of the facts of that case in order to violate Section 10(b). The conduct in Burlingham ought not to define what is impermissible and what is not. Instead, Justice Iacobucci’s words describe a sweeping prohibition:

14 … s. 10(b) specifically prohibits the police, as they did in this case, from belittling an accused's lawyer with the express goal or effect of undermining the accused's confidence in and relationship with defence counsel.

It makes no sense for s. 10(b) of the Charter to provide for the right to retain and instruct counsel if law enforcement authorities are able to undermine either an accused's confidence in his or her lawyer or the solicitor-client relationship.

93No court in Ontario has ever approved of conduct like that of the police officer in the case at hand. It is true that an accused’s statement was not excluded at trial based on police conduct in the high-profile murder prosecution of R. v. Papadopoulos [2006] O.J. No. 5402, 73 W.C.B. (2d) 455 (Ont. S.C.), affirmed on this point by the Ontario Court of Appeal in R. v. Mujku, 2011 ONCA 64, 226 C.R.R. (2d) 234. But it is simply not possible to read the judgments in that case as approving of the practice.

94The Court of Appeal said this in Mujku:

36 The police tread on dangerous ground when they comment on the legal advice tendered to detainees. In our view, however, the trial judge did not err in finding that the impugned comment made by the police officer did not violate, or undermine to the point of breach, Chak's s. 10(b) right to counsel. It was open to the trial judge to find that the police officer simply made the point that it was up to Chak, not his lawyer, to decide whether or not to make a statement. The circumstances here are distinguishable from R. v. Burlingham, 1995 88 (SCC), [1995] 2 S.C.R. 206, at para. 14, where the court held that "s. 10(b) specifically prohibits the police, as they did in this case, from belittling an accused's lawyer with the express goal or effect of undermining the accused's confidence in and relationship with defence counsel."

(Emphasis Added)

95At trial in Papadopoulos, Justice Dawson suggested that his conclusion that Section 10(b) was not violated ought not to encourage police to continue the practice. The police had used similar language to what D.C. Morrison had, saying that the accused’s lawyer was at home having dinner and watching TV. Justice Dawson held,

112 In my view, what occurred here fell far short of what happened in Burlingham. In that case the police seriously disparaged the accused’s lawyer by suggesting that he did not really care about the accused and was only interested in money. … Viewed in context, I am satisfied the impugned comments amounted to an ill advised way of telling the accused that it was his neck on the line and that he was an adult and had to make his own decision about whether to follow the advice of his lawyer. This falls just short of a breach in the circumstances of this case. However, I stress that similar comments in a slightly different context might well lead to a different conclusion. Here, the lawyer the accused had spoken to was in Toronto. The accused was in Montreal. The suggestion the lawyer was at home with his family could not reasonably be interpreted as meaning his lawyer did not care about him. The reference was fleeting and Detective Britton did not go back to it. No other comments of this sort were made during the interview.

(Emphasis Added)

96The warning from Justice Dawson and from the Court of Appeal was unmistakable. Although no violation was found, this finding was highly fact specific. As Justice Dawson said, the situation “fell just short of a breach” and another instance of similar but “slightly different” conduct may well lead to a Charter violation.

97There were major differences between this case and Papadopoulos. Here, unlike in that case, D.C. Morrison’s comments could only be interpreted as meaning that the lawyer did not care about him. There was no geographic distance between the lawyer and the accused as there was in Mujku which could explain the officer’s comment. The officer here could only have meant that the accused was in a better position than his lawyer to make the decision as he was present and the lawyer was not “on the spot.” This directly denigrated the lawyer and his constitutional function. Of course, this argument from the officer was specious despite its surface appeal: the lawyer had the training, knowledge and experience, including the necessary psychological distance, to better appreciate what was in the accused’s best interest.

98Crucially, the police officer admitted on this voir dire that his comments were “dismissive” of counsel and should have been relayed differently. “Dismissive” in context is tantamount to belittling or disparaging. Furthermore, unlike in Mujku, the comment was repeated twice in this case and could not be called fleeting. It was at the beginning of the interview.

99There were other points of distinction. No primary caution was given by the interviewing officer. The primary caution, like the advice of counsel, alerts the accused to his right to silence. The lack of a primary caution went hand and hand with the denigration of counsel and was an attack on the accused’s silence. Furthermore, methods were used to attack the right to silence, which did not in and of themselves cross the line but taken with the disparagement of counsel, took on a different hue. For example, Mr. Al-Adhami was curious to know what the factual allegations against him were. The officer said that he would tell him but refrained from doing so for the entire course of the interview, slowly drawing him out. The officer also told him that this was Mr. Al-Adhami’s opportunity to tell his side of the story. This type of remark can step over the line and become an inducement, but it did not here. It did, however, contribute to the sacrifice of the accused’s right to silence. The fact is, Mr. Al-Adhami was very young and naïve at the time.

100Most judges who have considered the disparagement issue over the years have found police conduct commenting negatively on counsel to be a Section 10(b) Charter violation: R. v. Thind, 2011 ONSC 2054, [2011] O.J. No. 6397 (S.C.J.), at paras. 124-125, aff’d on other grounds R. v. Sidhu, 2013 ONCA 719; R. v. McKnight, [2018] O.J. No. 6491, 2018 ONCJ 870 (Ont. C.J.), at paras. 92-102; R. v. Fulton, 2016 ONSC 2510, [2016] O.J. No. 1896 (Ont. S.C.), at para. 13; R. v. Armishaw, 2011 ONSC 5624, [2011] O.J. No. 4662 (Ont. S.C.J.) at paras. 100, 111; R. v. Chapple, 2012 ABPC 229, [2012] A.J. No. 881 (Alta.P.C.) at paras. 89-93; R. v. Gyles, 2015 MBQB 21, [2015] M.J. No. 95, (Man.Q.B.) at para. 52; R. v. James, [2004] O.J. No. 3539 (Ont.S.C.J.) at para. 32; R. v. Pike, 2017 NLTD(G) 41, 140 W.C.B. (2d) 222 (N.L.S.Ct.) at paras. 85-98, 105, 108, 255; contra R. v. Crichton, 2016 ONSC 5693, [2016] O.J. No. 4785 (S.C.J.) at paras. 11-15.

101There may be instances of more serious denigration than occurred in this case but it must be remembered that a 19 year-old accused in police custody with no experience in the system was is in an especially delicate and vulnerable position.

102It is for these reasons that, in my opinion, a Section 10(b) violation was committed by the disparagement of counsel. It is unnecessary to go through a full Section 24(2) analysis in the circumstances. Ms. Prihar accepted that the Section 24(2) analysis would be difficult for the Crown. This was a serious breach and led to a self-incriminating statement. I would only add that the authorities, rather than authorizing the police approach, made it clear going back to Broyles and Burlingham almost 30 years ago that it should not be used. The officer took a similar line as the police officer did in Papadopoulos, suggesting that the lawyer was at home while he, the accused, was in police custody. Officer Morrison denied that he had ever had training or instruction on this issue of any kind. Many of the disparagement cases involve this type of statement by the police. From the similarity in approach, I think it likely that Officer Morrison sub-consciously picked up this line of interviewing in his work or training. In any case, it is disappointing that this interviewing tack remains in use long after it was disapproved by the Supreme Court.

103In the result: Order to go in accordance with these reasons, staying the proceedings on the four count indictment before the court.

Footnotes

1. 1Some of the specific release provisions referred to above have also been amended and simplified (An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts (S.C. 2019, c. 25 assented to June 21, 2019. 2020 ONSC 4383, in force December 18, 2019)