COURT FILE NO.: CR-19-40000501-0000

DATE: 20201203

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

-and-

ISMAEL SAHAL

Mr. Joaquin Canton, for the Crown

Mr. Adam Newman, for the Defendant

HEARD: November 9 and 10, 2020

Justice J. Copeland

RULING ON CHARTER APPLICATION

[1] Ismael Sahal is charged with three counts relating to the possession of a loaded prohibited firearm without licence or registration. He brings an application under ss. 8, 9, and 10(b) of the Charter, seeking exclusion of evidence. The defence written materials had also raised a s. 10(a) claim; however, in light of the evidence during the hearing, the defence did not pursue the s. 10(a) claim in submissions.

[2] The firearm was found by police when Mr. Sahal was stopped, detained, and searched pursuant to information received from a confidential source.[^1] The central issues in the Charter application relates to the legality of the detention and search. In particular, I must decide two issues in relation to the detention: 1) when was Mr. Sahal detained? The defence argues that it was when Mr. Sahal was initially stopped by PC Mangiardi. The Crown argues it was slightly later, when Mr. Sahal responded to a question from PC Mangiardi about who he was with and where he was coming from; and 2) did the information the police relied on to detain Mr. Sahal (as available on the record before the court) amount to reasonable suspicion, viewed objectively?

[3] Both the Crown and the defence agree that the Charter application will be determinative of the result in this case. If the firearm is excluded from evidence, the Crown cannot prove the charges. If the firearm is admitted into evidence, counsel for Mr. Sahal has indicated that Mr. Sahal does not intend to contest the elements of the offences charged.

[4] Mr. Sahal bears the burden of proof on the Charter application on a balance of probabilities, with one exception. Because the search of Mr. Sahal’s person was a warrantless search, the Crown bears the burden to justify the search as reasonable on a balance of probabilities

[5] I will begin my analysis with the s. 9 arbitrary detention issue, because the outcome of that issue in large measure drives the result of the arguments under ss. 8 and 10(b).

Findings of Fact

[6] I will not summarize all of the evidence. What I outline here are the factual findings I make based on the evidence. The totality of the evidence was that of PC Greg Mangiardi and PC Jeremiah Rodriguez, as well as two short videos from the building security system showing the detention and events shortly before the detention from two different camera views. The videos have no sound. Mr. Sahal did not testify on the application.

[7] In the course of outlining my findings below, I state where I accept or reject certain evidence. But I make some general comments at the outset. In general, I find that PC Rodriguez was a credible witness. He was straightforward and not evasive in giving his evidence. And I find that his evidence was largely consistent with the building security videos.

[8] Unfortunately, I do not make the same finding with respect to PC Mangiardi. I found PC Mangiardi to be inconsistent in several important aspects of his evidence. I found him to be evasive on several issues central to the s. 9 and s. 8 issues. Further, I found aspects of PC Mangiardi’s evidence to be inconsistent with the building security video footage, and inconsistent with the evidence of PC Rodriguez. Some aspects of PC Mangiardi’s evidence are not in dispute. But I find that on several issues which are important to the s. 9 and s. 8 issues, I reject PC Mangiardi’s evidence. I will explain the specific areas where I reject PC Mangiardi’s evidence in my analysis and factual findings. But I flag some of them at the outset.

[9] PC Mangiardi consistently sought to downplay his initial interaction with Mr. Sahal – the touching of Mr. Sahal’s arm, the asking where he was in a building and whether he was with the other males. I found PC Mangiardi’s evidence on this issue to be evasive, and designed to suggest that PC Mangiardi did not intend to detain Mr. Sahal from the outset. For example, PC Mangiardi denied that when he reached out and touched Mr. Sahal’s arm he was trying to stop him, and claimed he was just trying to “get his attention”. Based on PC Rodriguez’ evidence and the security video I find that it was clear that PC Mangiardi was trying to stop Mr. Sahal by reaching out his hand. At one point in cross-examination, while continuing to deny an intention to stop Mr. Sahal by reaching out his arm to touch him, PC Mangiardi said that he was reaching out his hand to get Mr. Sahal’s attention, and Mr. Sahal “made contact with his hand”, or walked into his hand, but that he did not know if this was intentional or by accident. Having reviewed the security video, I find this to be an incredible explanation, again, designed to try and deny an intention to detain Mr. Sahal from the outset.

[10] PC Mangiardi denied that he told Mr. Sahal to stop, or used words to that effect. This was contradicted by PC Rodriguez, who, although he could not remember the exact words, agreed in cross-examination that in addition to reaching out and touching Mr. Sahal, PC Mangiardi verbally said something to him telling him to stop. PC Mangiardi denied that when he questioned Mr. Sahal about where in the building he had been and whether he was with the other men, it was his intention at that time to detain Mr. Sahal. He said repeatedly words to the effect that he was just trying “to orient [himself] to the situation”. It is hard for me to understand what PC Mangiardi meant by “trying to orient [himself]”. I find that it was meaningless language designed to obfuscate his intention, which, from the outset, was to detain Mr. Sahal and the other men.

[11] Further, I find that there are a number of contradictions on significant issues between the evidence of PC Mangiardi on the one hand, and the evidence of PC Rodriguez and the security video on the other. For example, on the issue of whether PC Mangiardi verbally said something to Mr. Sahal to the effect of telling him to stop at the time he reached out and touched his arm, and also on the issue of whether PC Mangiardi told Mr. Sahal to lift up his sweater at the time he started the pat search, PC Rodriguez’ evidence contradicts PC Mangiardi’s evidence. I believe PC Rodriguez, and reject the evidence of PC Mangiardi on these issues.

[12] Finally, I find that PC Mangiardi was inconsistent and flip-flopped in his evidence at trial, and in his evidence at the preliminary inquiry which was put to him in cross-examination as inconsistent with portions of his trial evidence, about significant issues. In particular, PC Mangiardi was not consistent in his answers either at trial, or at the preliminary inquiry about whether he verbally told Mr. Sahal to stop when he reached out and touched his arm. He was also inconsistent about whether, in PC Mangiardi’s mind, Mr. Sahal was free to go if he did not answer PC Mangiardi’s initial questions about where in the building he had been and whether he was with the other three males.

[13] For these reasons, where I find that PC Mangiardi’s evidence about the events of the detention was not consistent with the evidence of PC Rodriguez or the security video, I do not accept it.

[14] The following are my findings of fact.

[15] It is important to begin with the context that the Crown invoked informer privilege over the confidential source information the police were acting on in this case. Without questioning the invocation of the privilege, I note that it has the effect of limiting the court’s ability to review the grounds for the detention, and limiting the information the Crown has available to it to rely on to justify the detention. The requirement that investigative detentions be subject to independent judicial supervision means that the court must review the grounds for the detention based on what is on the record before the court. The court cannot speculate about other information that may have been available to police, but over which privilege is claimed.

[16] It was agreed at the outset of the trial that the totality of the information that the Crown would provide to the court (both by agreed facts, and through the witnesses) about the information from the confidential source was the following:

Information was received that there was a group of black males in the building in question (a specific address was given), one of whom had a firearm.

[17] I note that there is no information on the record before the court about the recency of the information provided by the source. There is none in the summary above that was agreed to by both parties. And this was clarified in the cross-examination of PC Mangiardi, who testified that he had received the information recently. But he had not received it directly from the source, and had not spoken directly to the officer who received the information from the source. PC Mangiardi agreed that he did not know when the officer who received the information from the source had received it. And he did not know when the source who reported the information to police had either observed or received the information.

[18] Based on the Crown’s position that this was all the information that could be disclosed without risking disclosing the source of the information, the defence did not seek to probe more details by way of cross-examination, since to do so would be contrary to the privilege.

[19] The building referred to in the tip is located on Jane Street near Wilson Avenue. PC Mangiardi testified it was approximately 25 stories tall. In cross-examination he was asked if it was 11 stories tall, and responded that he thought it was taller than that, approximately 20 stories. He agreed it was a large building, with hundreds of residents. I find that was a large residential apartment building. The building is run by Toronto Community Housing.

[20] PC Mangiardi testified that in his work on the Community Response Unit, in the year previous to the night at issue, he had attended at the building almost daily (when he was on shift). These attendances were related to issues there about non-residents engaging in drug dealing activity, and firearms, at the building. Typically, officers would attend the building in groups of three or four officers, and sometimes as many as six officers.

[21] Based on the information outlined at para. 16 above, four officers attended at the building at approximately 8:40 p.m., on the night of March 2, 2018. The officers were PC Mangiardi, PC Rodriguez, PC Fitkin, and PC Fagu. All of the officers were in uniform.

[22] The officers parked their unmarked van at a walkway that leads to the south door to the building. The building has at least four entrances. The south door is not the main lobby entrance. Residents need a key fob to enter by the south doors.

[23] The officers exited the van. PC Fitkin approached the building slightly before the other officers, because he had a fob to open the door. As PC Fitkin was about to open or was opening the door, Mr. Sahal came down the stairs and exited out the door.

[24] As Mr. Sahal was exiting, the other three officers were outside the door, behind PC Fitkin. PC Mangiardi reached out his arm and touched Mr. Sahal’s shoulder. Mr. Sahal completed his next step or two, but stopped almost immediately. I find as a fact that PC Mangiardi said words to Mr. Sahal telling him to stop as he reached out and touched his arm. I make no finding of the specific words spoken, but I find that he verbally conveyed to Mr. Sahal to stop. I based this finding on the evidence of PC Rodriguez, and the security video. PC Rodriguez testified that although he could not recall the exact words PC Mangiardi used, PC Mangiardi definitely communicated to Mr. Sahal his intention to have him stop. Although the security video does not have sound, I find that the actions of PC Mangiardi visible on the video support that he intended to stop Mr. Sahal. I do not accept PC Mangiardi’s evidence that he did not verbally tell Mr. Sahal to stop, or that he was touching his arm just “to get his attention”. I reject PC Mangiardi’s evidence that Mr. Sahal walked into his hand. The video is clear, as was PC Rodriguez’ evidence, that PC Mangiardi stuck out his arm into the path where Mr. Sahal was walking and touched Mr. Sahal with the intention of stopping him from leaving. Recall that this in a context where all of the officers were in uniform.

[25] PC Mangiardi touching Mr. Sahal’s arm is within a few seconds after Mr. Sahal is outside of the south door to the building.

[26] I find that prior to PC Mangiardi reaching out and touching Mr. Sahal, and saying something telling him to stop, the police made no observations of any unusual, suspicious or criminal-seeming behaviour on the part of Mr. Sahal (and there is no evidence of any such behavior by the other men). PC Rodriguez agreed in cross-examination that he did not observe anything unusual about Mr. Sahal’s walking or manner, and did not observe anything criminal or suggesting a weapon. He agreed that Mr. Sahal was cooperative and had a calm demeanour at up to and including when PC Mangiardi told him to take his hands out of his pockets. PC Mangiardi agreed that there was no unusual, suspicious or criminal-seeming behavior by Mr. Sahal as he exited the building; however, he did claim that he observed Mr. Sahal quicken his walking speed.

[27] I reject PC Mangiardi’s evidence that he observed Mr. Sahal quicken his walking speed as he exited. PC Rodriguez agreed that he did not notice anything unusual about Mr. Sahal’s walking. He did not suggest at any point in his evidence that Mr. Sahal quickened his pace as he was exiting the building. And on my review of the video I do not see Mr. Sahal quicken his pace. What is visible on the videos is that Mr. Sahal pauses slightly as he exits, because PC Fitkin is there. PC Fitkin then lets him by, and Mr. Sahal walks at a normal speed until PC Mangiardi reaches out his arm to touch him.

[28] Immediately after stopping Mr. Sahal, PC Mangiardi then asked Mr. Sahal where he had been in the building, and whether he was with the three other men (who were descending the stairs behind Mr. Sahal). Mr. Sahal responded that he had been with the three other men visiting someone on the eighth floor of the building. I note that this confirms that Mr. Sahal was with the other men, and not alone. I also note that the eighth floor detail adds nothing to the asserted grounds for the detention, as there is nothing in the tip information before the court that relates the tip or the men referred to in the tip to the eighth floor of the building.

[29] PC Mangiardi repeatedly said that he asked these questions of Mr. Sahal “to orient [himself] to the situation”, and denied that Mr. Sahal was detained at that point. He claimed that his initial contact with Mr. Sahal was “exploratory in nature”. In addition to rejecting that PC Mangiardi was just trying to get Mr. Sahal’s attention when he touched his arm. I am not quite sure what PC Mangiardi meant by saying he was trying “to orient [himself] to the situation” in asking Mr. Sahal questions about his whereabouts. I find that this was intentionally vague language designed to try to show that Mr. Sahal may have been free to go, at a time when, in fact, PC Mangiardi had no intention of letting him leave.

[30] I note that PC Mangiardi was inconsistent in his evidence on the issue of whether Mr. Sahal was detained as soon as the officer touched his arm. As I have noted above, PC Mangiardi repeatedly said things like he was trying to “orient [himself]”, and to get Mr. Sahal’s attention. However, at one point in the cross-examination PC Mangiardi agreed that Mr. Sahal was not free to leave once the officer touched him. However, when he was immediately then asked if that meant Mr. Sahal was detained, PC Mangiardi said that he asked Mr. Sahal a question, and he “engaged” Mr. Sahal and was trying “to orient” himself, and re-asserted that Mr. Sahal was not detained prior to answering the question about being in the building with the other males. But towards the end of the cross-examination, PC Mangiardi again agreed that Mr. Sahal was detained even before the officer asked him questions.

[31] I find that from the time PC Mangiardi touched Mr. Sahal’s arm, said words to him telling him to stop, and asked him where he was in the building, Mr. Sahal was not free to go – he was detained. PC Rodriguez testified that he was detained from that point, and I find that the videos support that finding.

[32] I find that the reason the officers detained Mr. Sahal was because he was a black male in a group, at the address in the tip. PC Mangiardi was asked near the end of examination-in-chief whether there was something about Mr. Sahal that matched the information he had received. He responded, “Yes, the initial information of a group of males that were black.” Although PC Mangiardi agreed in cross-examination that the tip that the police had received would not give him authority to detain any black male leaving the building, I find that what he was saying, in the context of his evidence as a whole, was that he believed he could not stop a black male who was alone (not part of a group). I find that his evidence as a whole was clear that his subjective grounds for stopping and detaining Mr. Sahal was that he was a black male, in a group, at the building in issue. This is clear from an answer PC Mangiardi gave near the end of his cross-examination, agreeing that the reason he believed Mr. Sahal was involved in the information from the tip was because he was a black male with three black males.

[33] PC Rodriguez evidence on this issue was clear. He was asked if the police could stop everyone who came out the building who fit the description (in the tip). He responded that if he was able to form suspicion, he would detain and investigate. He was then asked, “So, in this case it was a black male [i.e., Mr. Sahal]” who came out? PC Rodriguez responded, “Based on the information received, I’d say I’d be able to form reasonable suspicion to at least stop and speak to him.” I appreciate that in law there can be a distinction, depending on all the circumstances, between stopping someone to ask them questions which may not amount to a detention, and an investigative detention. In light of PC Rodriguez’ reference to the reasonable suspicion standard in his answer, I find that he was referring to investigative detention.

[34] I pause to address the issue of whether the other three men, or some of them, were visible at the time Mr. Sahal was stopped by PC Mangiardi. Both officers testified that they could see at least some of the other males coming down the stairs when they stopped Mr. Sahal. This evidence was challenged by the defence in cross-examination. In closing submissions, Crown counsel very effectively reviewed the two security videos and what was visible of the other men in relation to where Mr. Sahal was at specific times. I will not repeat all of the time stamps related to this. But I find that PC Mangiardi and the other officers would at least have seen the second man descending the stairs at the time Mr. Sahal was stopped. Based on reviewing the videos, I find that the second man would have been visible to the officers between the top and middle of the flight of stairs visible through the door either just before or contemporaneous with the stop of Mr. Sahal (and the other two men then follow closely behind). After that, the other men were just inside the door as the police interaction with Mr. Sahal continued. Thus, I accept that there was a basis for the police to have a belief (at least on the reasonable suspicion standard) that Mr. Sahal was with the other men (i.e., that he was not alone).

[35] PC Mangiardi then told Mr. Sahal that he was investigating in relation to a firearm at the building, and that he would do a pat search of Mr. Sahal. PC Mangiardi told Mr. Sahal to remove his hands from his pockets, both by words, and by gesturing with his own hands. This gesture is visible on the security video. Mr. Sahal removed his hands from his pockets, and had a cellphone in one hand.

[36] PC Mangiardi did not advise Mr. Sahal of his right to counsel at the time he told him he was being investigatively detained.

[37] Shortly after this, Mr. Sahal can be seen on the video lifting his sweater, while PC Mangiardi appears to look in the area of Mr. Sahal’s waistband. There is a dispute in the evidence as to whether Mr. Sahal began lifting his sweater on his own, or whether PC Mangiardi directed him to do so as part of the pat search.

[38] As I will explain below in relation to s. 24(2), the factual finding that PC Mangiardi told Mr. Sahal to lift his seater is not relevant to the manner of either the detention or search (that is, whichever version is true, if the detention were lawful, either manner of conducting the search would be reasonable). But the conflict in the evidence is relevant both to PC Mangiardi’s credibility, and also to the issue of discoverability.

[39] I reject PC Mangiardi’s evidence that Mr. Sahal began lifting his sweater of his own volition. Instead, I accept the evidence of PC Rodriguez that PC Mangiardi gestured to Mr. Sahal to lift his sweater, in order to check his waistband. I make this finding based on my general finding that PC Rodriguez is credible, as well as my concerns about PC Mangiardi’s credibility. Further, I find that the video supports PC Rodriguez’ evidence.

[40] On the video, one can see PC Mangiardi gesture in an upwards motion twice with his left hand immediately before Mr. Sahal lifts his sweater. Further, when Mr. Sahal lifts his sweater, PC Mangiardi bends forward slightly and appears to be looking in the area of Mr. Sahal’s waist. Although the video is not conclusive, it reasonably supports the inference that PC Mangiardi directed Mr. Sahal to lift his sweater, Mr. Sahal complied, and when he complied, PC Mangiardi looked at his waist to see if any weapon was there. And the video does not stand alone. PC Rodriguez testified that PC Mangiardi gestured to Mr. Sahal to lift his sweater and that was done for the purpose of checking his waistband.

[41] PC Mangiardi testified that he would never ask a suspect to lift an area of clothing if he thought there may be a firearm there, because it would be contrary to officer safety. This explanation is not implausible on its face. However, it is contrary to PC Rodriguez’ evidence that PC Mangiardi told Mr. Sahal to lift his sweater. PC Rodriguez made no mention in his evidence that this caused any safety concerns. Further, on review of the video, PC Mangiardi seems to be bending slightly to look at Mr. Sahal’s waistband as Mr. Sahal lifts his sweater. If PC Mangiardi was so concerned about the safety of Mr. Sahal lifting his sweater, one would expect he would have told Mr. Sahal to stop, and used his own hands to conduct the pat search.

[42] Thus, I reject PC Mangiardi’s evidence on this issue, and I find that he directed Mr. Sahal to lift his sweater.

[43] Based on my review of the video, when Mr. Sahal lifts his sweater, one can see on the video something weighted in the pocket of the sweater. Both PC Mangiardi and PC Rodriguez testified that when Mr. Sahal lifted his sweater, they saw something weighted in the right side pocket of his sweater. I accept this evidence both because of what I am able to observe on the video, and because I found PC Rodriguez to be a generally credible witness. However, both officers also testified that they did not see this weighted object prior to Mr. Sahal lifting his sweater, and that before that time they did not observe anything that made it appear that Mr. Sahal was carrying a firearm.

[44] PC Mangiardi testified that as Mr. Sahal continued to lift his sweater, he was able to observe an object start to protrude from his pocket, and it appeared to be the handle of a gun. PC Mangiardi testified that he reached for the firearm, and that as he did so, Mr. Sahal reached for the firearm with his right hand from inside his jacket pocket. I am unable to make a finding as to whether Mr. Sahal tried to reach for the firearm. The only evidence of this comes from PC Mangiardi, about whose credibility I have concerns. PC Rodriguez did not give any evidence about Mr. Sahal reaching for the firearm. He only testified that at some point Mr. Sahal put his hand back in his pocket, and at that point PC Rodriguez took control of Mr. Sahal’s right arm. PC Rodriguez testified that at that point, Mr. Sahal tried to pull away, and then PC Mangiardi took control of his left arm. I find that the video is unclear on the issue of whether Mr. Sahal tried to reach for the gun.

[45] From this point, the video shows PC Rodriguez take Mr. Sahal’s right arm, and then PC Mangiardi take his left arm. After a very brief scuffle the officers took control of Mr. Sahal. He was handcuffed and placed under arrest at approximately 8:42 p.m.[^2]

[46] PC Mangiardi then went inside the vestibule to where PC Fitkin and Fagu were with the other three men. PC Mangiardi directed that the three other men be placed under arrest for possession of a firearm (there was no suggestion in the evidence that any firearms were found on the other men).

[47] PC Rodriguez read Mr. Sahal his right to counsel at 8:48 p.m. Mr. Sahal said that he understood. PC Rodriguez asked him if he had a lawyer or if the wanted to speak to duty counsel. Mr. Sahal said he wanted to speak to duty counsel. Some time after that, and before Mr. Sahal had been provided with an opportunity to speak to duty counsel, PC Mangiardi asked Mr. Sahal if the firearm was loaded. Mr. Sahal replied that it was.

[48] PC Rodriguez arranged for another officer to transport Mr. Sahal to the division.

[49] One final fact, which I will return to in the s. 24(2) analysis, is that the other three men were detained at the building for approximately one hour and 15 minutes, until 9:55 p.m., while the police conducted investigation and inquiries within the building. At that time, two of the men were released without any charges.

Was Mr. Sahal arbitrarily detained?

(i) When was Mr. Sahal detained?

[50] There is no dispute that Mr. Sahal was detained by police. There is some dispute about when the detention commenced. The defence submits that Mr. Sahal was detained essentially from the start of his interaction with the police, from the time PC Mangiardi reached out his arm and touched Mr. Sahal, and at the same time spoke some words to Mr. Sahal telling him to stop. The Crown’s position was that the detention did not start until after PC Mangiardi asked Mr. Sahal whether he was with the other men, and where in the building he was coming from, and received and answer from Mr. Sahal which included that he was with the other men. The time difference between these two positions is measured in seconds. But in fairness to Crown counsel, his ultimate position was that in terms of assessing the grounds for detention, it did not matter which time the detention was found to have commenced.

[51] Ultimately, I agree with the defence that the detention of Mr. Sahal commenced as soon as PC Mangiardi reached out his arm to touch Mr. Sahal, and spoke some words to him to the effect of telling him to stop. However, as I discuss below regarding the grounds for detention, whether the detention happened then, or a few seconds later does not change my conclusion about whether there were sufficient grounds for the detention.

[52] In Grant, the Supreme Court held that detention refers to a suspension of an individual’s liberty interest by a significant physical or psychological restraint. Psychological detention exists where an individual has a legal obligation to comply with the restrictive demand by a police officer, or where the police conduct would cause a reasonable person to conclude that they no longer have the freedom to choose whether or not to cooperate with the police. This is an objective determination, made in light of all of the circumstances of the encounter: R. v. Grant [2009] 2 S.C.R. 353, 2009 SCC 32 at paras. 19-52; R. v. Le, 2019 SCC 34 at paras. 25-123; R. v. Suberu, 2009 SCC 33 at paras. 21-25; R. v. Thompson, 2020 ONCA at paras. 27-37.

[53] To determine if a reasonable person in the circumstances of the individual would have thought they were deprived of their liberty to leave, a court should consider all of the circumstances. The decisions of the Supreme Court group the circumstances into three sets of non-exhaustive factors:

(i) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual – This includes whether the police were (on one hand) providing general assistance or making general inquiries or (on the other hand) singling out an individual for focussed investigation;

(ii) The nature of the police conduct – This includes the language used, the use of physical contact, the place where the interaction occurred, the presence of others, and the duration of the encounter;

(iii) The particular characteristics or circumstances of the individual, where relevant – This includes age, physical stature, minority status, and level of sophistication.

[54] Considering the factors listed above at para. 53, I find that taken together, a reasonable person in the position of Mr. Sahal would have concluded that he was detained from the moment that PC Mangiardi touched his arm and said words to him telling him to stop.

[55] Looking at the first group of factors, the officers were not making general inquiries, they were singling out the group of men Mr. Sahal was with, and PC Mangiardi in particular was singling out Mr. Sahal. The police attended at the address specifically looking for a group of black men in reliance on the confidential source information. The officers subjectively believed that they had the right to detain the men because they were black males, in a group, and at the residential building at issue.

[56] Looking at the second group of factors, PC Mangiardi, an officer in uniform, reached out his arm into Mr. Sahal’s path, and touched Mr. Sahal with the intention of getting him to stop, and said words to him telling him to stop. It is clear from the video that Mr. Sahal stopped immediately after PC Mangiardi reached his arm out and touched him. PC Mangiardi also almost immediately began questioning Mr. Sahal about whether he was with the other men, and where in the building he had been. Under the second group of factors I also note the number of officers. Four officers, all in uniform, were on the scene, and two officers (PC Mangiardi and PC Rodriguez) were focusing their attention and actions specifically on Mr. Sahal. Although the encounter was brief, I find that it would have been clear to Mr. Sahal from the start that he was not in a position to leave. Further, as I have noted above, although PC Mangiardi flip-flopped in his evidence about whether Mr. Sahal was free to leave had he not answered the questions about whether he was with the other men and where in the building he had been, I find as a fact that Mr. Sahal was not free to leave without answering those questions.

[57] Looking at the third group of factors, although there is no evidence of Mr. Sahal’s specific age, it is not in dispute that he is a young black man. Although I cannot, as a middle-aged white woman, entirely put myself in his shoes, I find that a reasonable person in his circumstances would consider himself detained when four uniformed police officers approached him and the three other men, and two of the officers focussed their attention on him, while one of those officers stuck his arm out into Mr. Sahal’s path out to touch him to stop him walking, said words to him to stop, and then both officers stood very close to him, and one of the officers asked whether he was with the other men and where in the building he had been.

[58] Thus, I find as a fact that the detention started when PC Mangiardi reached out and touched Mr. Sahal, and at the same time spoke words telling him to stop, and began to question him about whether he was with the other men, and where in the building he had been.

[59] However, as I will explain in relation to whether or not there were grounds for an investigative detention, in my view, the answer is the same on the facts of this case, whether the detention started when PC Mangiardi reached out and touched Mr. Sahal and said words to him to the effect of telling him to stop, or if it started seconds later after Mr. Sahal responded to PC Mangiardi’s question about if he was with the other men and where he had been in the building.

(ii) Did the police have reasonable suspicion to ground the investigative detention of Mr. Sahal?

[60] The defence position is that the information in the tip (a group of black men, and one with a firearm, at a specific address that was a large residential building) did not provide reasonable suspicion to detain Mr. Sahal. The defence argues that Mr. Sahal did not appear to be with a group of black men when he was stopped. But even if the court finds that there was a basis to find he was with a group of black men, being a black male with a group of black males, at the building address did not amount to reasonable suspicion. There were no observations of any unusual or criminal behaviour by Mr. Sahal prior to the stop. And the defence argues that the bare tip was too generalized, in other words, not sufficiently particularized, to create reasonable suspicion to detain Mr. Sahal simply on the basis that he was a black male, with a group of black males, at the address. There was no detail in the tip such as physical or clothing description. There was no information about whether the tip was recent. There was no information about the reliability of the source of the information. And the geographic area of the tip was not confined, since it was a large residential building, with hundreds of residents. I note that the defence submission regarding arbitrary detention turns entirely on whether the reasonable suspicion threshold to detain was met. It is not argued by the defence that the manner of detention was arbitrary (for example that excessive force was used or that the detention was unreasonably prolonged).

[61] The Crown’s position is that there was reasonable suspicion to stop Mr. Sahal based on the tip, because he was a black male, with a group of black males, at the address in the tip. According to Crown counsel’s argument, it is the fact of being in a group, and the presence at the specific address that elevates the information to reasonable suspicion. Crown counsel cautions against raising what is required for reasonable suspicion to exist to a higher standard, such as reasonable and probable grounds. Crown counsel further submits that the manner of the detention was appropriate and reasonable.

[62] A detention will be arbitrary where it is not authorized by law, where the authorizing law is arbitrary (i.e., unconstitutional), or where the manner of the detention is unreasonable: Grant at paras. 53-56; Le at para. 124. As I have noted, the only issue raised by the defence in this case is whether the detention was authorized by law. The relevant law is the common law authorizing investigative detentions based on reasonable suspicion.

[63] The police may detain an individual for investigative purposes if they have reasonable grounds to suspect that the individual has committed or is committing a crime, and the detention is justified as reasonably necessary in all of the circumstances. In order to strike the right balance between the investigative duties of the police and the public interest in law enforcement on the one hand, and individual liberty on the other, the restriction on liberty caused by the investigative detention must be brief, and the manner of the detention reasonable and tailored to the totality of the circumstances. An investigative detention does not require the same strong connection between the detained individual and the offence being investigated as would an arrest: R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52 at paras. 24-35; R. v. McGuffie, 2016 ONCA 365 at paras. 35-38.

[64] Reasonable suspicion is an objective standard. The facts known to police (which the police assert as the basis for the detention), when considered together, must objectively support a reasonable possibility that the individual has committed or is committing a criminal offence. Reasonable suspicion differs from reasonable and probable grounds in that reasonable and probable grounds means credibly based probability that the individual has committed or is committing a criminal offence, while reasonable suspicion means credibly based possibility that the individual has committed or is committing an offence. Although reasonable suspicion is a lower standard than reasonable and probable grounds, its objective component is designed to allow judges to review detentions, and is an important safeguard of individual liberty: Mann at paras. 27, 34; R. v. Chehil, [2013] 3 S.C.R. 220, 2013 SCC 49 at paras. 22-36; R. v. Ahmad, 2020 SCC 11 at paras. 25, 45-47, 60, 82-83.

[65] Several propositions are evident in the case law regarding the reasonable suspicion standard:

(i) It is an objective standard. An officer’s subjective suspicion that an individual is connected to a crime under investigation cannot by itself justify an investigative detention. The suspicion must be objectively reasonable;

(ii) The reason for the objective standard is that the officer’s grounds for the detention must be reviewable by a court. Independent judicial supervision is an important aspect of the protection of constitutional rights in this context;

(iii) The choice of reasonable suspicion as the appropriate standard to justify an investigative detention represents the striking of a balance between the societal interest in detection and punishment of crime, and the societal interest in maintaining individual freedom. In other words, a balance between law enforcement on the one hand, and the individual right to liberty, privacy, to move freely, and be left alone by the state on the other;

(iv) The assessment of whether reasonable suspicion existed is to be based on the information available to the officer (at it appears in the record before the court) at the time of the detention. It is not an after the fact analysis based on evidence of criminality having been discovered;

(v) The reasonable suspicion standard is based on an objective assessment of the totality of the circumstances. The standard has been expressed in various ways:

• “The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation.” (emphasis added, Mann at para. 34).

• “Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime. As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard.” (emphasis added, Chehil, at para. 27)

• “Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernable facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience. . . . A constellation of factors will not be sufficient to ground reasonable suspicion where it amounts merely to a ‘generalized’ suspicion because it ‘would include such a number of presumably innocent persons as to approach a subjectively administered, random basis’ for a search [citation omitted]. The American jurisprudence supports the need for a sufficiently particularized constellation of factors [citation omitted]. . . . Indeed, the reasonable suspicion standard is designed to avoid indiscriminate and discriminatory searches.” (emphasis added, Chehil, at paras. 29-30).

[66] Crown counsel in submissions put some stress on the portions of the Supreme Court majority decision in R. v. MacKenzie, [2013] 3 S.C.R. 250, 2013 SCC 50, which support three propositions: (i) that reasonable suspicion must be assessed based on all the circumstances, and that conduct that standing alone might not be suspicious, may together with other factors rise to the level of reasonable suspicion; (ii) that courts must be careful not to inadvertently raise the reasonable suspicion threshold closer to reasonable and probable grounds (“upping the ante”); and, (iii) that the inevitable effect of using the lower standard of reasonable suspicion to justify some police conduct (rather than reasonable and probable grounds), is that more innocent people will be swept up in the particular police conduct (be it detentions or searches) (paras. 35-38, 71-74, 84-86). I note that similar comments are made by the court in the companion case of Chehil at paras. 27-30 (although these comments must be read in the context of the entire discussion of reasonable suspicion at paras. 22-36 of Chehil).

[67] MacKenzie is binding authority. I accept that the reasonable suspicion standard requires an assessment of all the circumstances, and that sometimes a number of factors in combination may provide reasonable suspicion, when each alone would not (this proposition is especially well-established in the context of impaired driving investigations). And I cannot deny the logic that if a standard for police to engage in a particular action (in MacKenzie, a sniffer dog search; here, investigative detention) is lower, the inevitable consequence of that is that more innocent people will be caught up in it. I also accept that in applying the reasonable suspicion standard, a court must be careful not to inadvertently hike the standard higher and closer to reasonable and probable grounds. I apply that caution in considering this case.

[68] However, the majority in MacKenzie expressly accepts the standard for assessment of reasonable suspicion of its companion case, Chehil, and of previous cases such as Mann. MacKenzie does not create a lower standard for assessing reasonable suspicion that those cases. Nor does MacKenzie say that sweeping up any number of innocent people is acceptable to achieve law enforcement goals. Put simply, the amount of sweeping up of innocent people that is acceptable is the amount that are swept up only when the reasonable suspicion threshold is applied.

[69] Defence counsel argued that because the detention at issue in this case is founded on information from a confidential source, the court should use the criteria from R. v. Debot, [1989] 2 S.C.R. 1140, 1989 CanLII 13, to assess whether it provided grounds for detention, but within the lower threshold of reasonable suspicion (reasonable possibility rather than reasonable probability). In particular, I refer to the “3 Cs” of considering whether the information in the tip is compelling, credible, and corroborated.

[70] Although this argument is initially appealing, I find that it is not appropriate to directly apply the Debot factors to assessing whether reasonable suspicion exists in the context of confidential source information. The appeal of the argument is that, as is clear from the case law, reasonable and probable grounds and reasonable suspicion both involve objective assessments of all the circumstances. The difference is that reasonable suspicion involves reasonable possibility, and reasonable and probable grounds involves reasonable probability. The logic of the defence argument is thus: that it is the same type of assessment, just a lower standard. The argument is based on conceptualizing the difference between the two standards as being quantitative, not qualitative.

[71] I understand the logic of the argument. But I reject it for three reasons. The first is that the case law in the context of reasonable suspicion provides its own language for the test. I have set out some of the formulations of the standard above at para. 65. Thus, that is the test I will apply.

[72] The second reason I reject a direct application of the Debot criteria is that I am concerned that directly transposing them to the reasonable suspicion context risks “upping the ante”, and raising the reasonable suspicion threshold closer to reasonable and probable grounds, contrary to the comments of the majority in MacKenzie discussed above.

[73] The third reason I reject a direct application of the Debot criteria is that although the cases talk about the difference between reasonable suspicion and reasonable and probable grounds in essentially quantitative terms (possibility vs probability), it seems to me that there is a qualitative difference as well, in the sense that an investigative detention is supposed to be brief and minimally intrusive, and does not have the same consequences as an arrest (unless evidence of criminality is found during the detention and an arrest ensues).

[74] Having made these comments about Debot, I want to focus back on Chehil, and what is or is not required to ground reasonable suspicion in the context of anonymous or confidential sources, and how it does or does not relate to the “3 Cs” from Debot. First, I find that the credibility factor from Debot does not fit well to the reasonable suspicion standard when dealing with confidential or anonymous information. Not infrequently, where police have confidential source or anonymous information that leads them to consider an investigative detention, it will be information which requires a quick response if a response it to be taken. In that context, and given the lower standard of reasonable suspicion, in my view the police are not required to confirm the credibility of the confidential or anonymous source. I find that para. 34 of Chehil, although dealing with a slightly different issue, provides support for the proposition that the police are not required to do further investigation of the credibility of the source (provided the information has a reasonable level of particularity – which I address below at para. 76). The one caveat I would place on this is that in a case where the police have some positive information that casts doubt on the credibility of the source, that must be considered in assessing if the reasonable suspicion threshold is met.

[75] Second, if the information provided by the confidential source has a reasonable level of particularity (which I discuss below at para. 76), the police are not required to corroborate the information in the sense of seeking out other evidence to support the information provided by the source. Again, I based this on the comments at para. 34 of Chehil. If there is corroborating information, that will be a factor in the assessment of all the circumstances. But if the tip has a reasonable level of particularity, corroboration will not be required.

[76] Third, what is required where police seek to base an investigative detention on a confidential or anonymous source is some reasonable particularity in the information provided. This concern bears some relation to the “compelling” aspect of the Debot factors. But I do not base it on Debot, or use the word “compelling” to describe this aspect of the assessment, because of the risk of inadvertently raising the standard for the reasonable suspicion test. Rather, I find the requirement for a reasonable amount of particularity of the information in paras. 29 and 30 of Chehil, and para. 34 of Mann. In particular, paras. 29 and 30 of Chehil provide that that the totality of the circumstances must be such as to provide reasonable suspicion that the individual who the police seek to detain is involved in the type of criminal activity under investigation. The basis for the reasonable suspicion cannot be based on factors that amount to “generalized suspicion”, because allowing investigative detentions on generalized suspicion would allow “indiscriminate and discriminatory” detentions. What is required it “a sufficiently particularized constellation of factors.”

[77] What this means is that where the police seek to justify an investigative detention based on information from a confidential or anonymous source, the information will have to have sufficient particularity so that it does not allow for indiscriminate and discriminatory detentions. If the confidential or anonymous source information is not sufficiently particularized to meet that standard, then the police will need something more, for example, some conduct by the person the police seek to detain that either alone or in combination with the confidential or anonymous source information rises to the level of reasonable suspicion.

[78] Before I turn to the application of the law to the facts of this case, I want to flag one other issue. It is, of course, tempting to reason that because the police found a firearm on Mr. Sahal’s person, the tip must have been sufficiently reliable information to constitute reasonable suspicion. But this type of after the fact justification is not sufficient. Our standards for protection of constitutional rights in relation to detention, arrest, and searches, whether in the context of reasonable suspicion or reasonable and probable grounds, rely on assessing whether at the time of the police action, the requisite legal standard was met.

[79] I turn then the evidence on the record before me of the information available to the police at the time of the detention. They had information that there was a group of black men, and one of them had a firearm, at a particular address, which was a large residential building. The police had no descriptive information whatsoever about the black men, except that they were in a group. Nothing about age, nothing about how many men, nothing about appearance, nothing about clothing. The police who detained Mr. Sahal had no information about whether the police officer who dealt with the confidential source had received the information recently, or whether the source had either observed or learned the information they provided to the officer recently. Mr. Sahal was a black male. He was observed leaving the address at issue, in circumstances where the officers could reasonably have believed he was with the other three black males. However, there were no observations by police of any unusual or suspicious behaviour by Mr. Sahal prior to the detention.

[80] Crown counsel argued that the information the police had at the time of the stop rises above generalized information because of two things: (i) that the black males were said to be in a group (i.e., not a single black male); (ii) and the address. The argument is that the facts of the specific address, and that the men were in a group were enough to provide reasonable suspicion to stop any group of black men at that building (but not a black man who was alone).

[81] I reject this argument.

[82] The case law is clear that reasonable suspicion is to be assessed considering all of the circumstances. The circumstances in this case were a very bare tip – group of black men, one had a gun, at a specific address – combined with the defendant being a black men exiting the building at the address in the tip, and observations based on which one could reasonably believe he was with other black men, but no observations whatsoever of any unusual or suspicious behaviour by the defendant (or the other men), of any criminal seeming behaviour by the defendant (or of the other men).

[83] I find that what makes the circumstances in this case fall short of the reasonable suspicion threshold is the absence of either any descriptive information whatsoever about the group of black men in the tip, or, any unusual behaviour or actions by the defendant which could support (even partially – since the assessment involves all the circumstances) grounds for investigative detention.

[84] There is nothing in the tip information to distinguish the group of black men in the tip from any other group of black men potentially present at the large residential apartment building at issue. In my view, in the absence of any information to distinguish the group of black men in the tip from any group of black men at the large residential apartment building at issue, this is “generalized” information of the type the Supreme Court cautioned against at para. 30 of Chehil. To find that there were sufficient grounds in this case for an investigative detention of Mr. Sahal would be to invite indiscriminate and discriminatory detentions of any group of black men at this large residential apartment building. Using the language from Mann at para. 34, there is not a sufficiently “clear nexus” between the information in the tip, and Mr. Sahal and the group of men he was with. The men in the tip could be any group of black men at the large residential apartment building.

[85] Hypothetically, if there was any information before the court that the tip contained information to distinguish the group of black men in the tip from any other group of black men at the building address – for example, description of clothing of even one of the men (for example, “a checked shirt” or “a Raptors shirt”), in my view that likely would rise to level of reasonable suspicion. Obviously, that type of description could still catch innocent people, since this type of clothing is mass-produced. But it would at least create some nexus between the group of black men in the tip, and a particular group of black men at the address of the building at issue, beyond being a black male in a group at a large residential apartment building.

[86] In my view, if the tip as given in this case is sufficient to stop Mr. Sahal and then other three men, then the court would be holding that it was sufficient to stop any group of black men at that address that night. The address was a large residential building. Allowing police to stop any group of black men at a large residential building on the basis of the tip in this case, and absent any unusual or suspicious behavior by the men stopped, would be too generalized to meet the threshold of reasonable suspicion. There is insufficient nexus between the group of men in the tip, and the particular men stopped.

[87] Crown counsel argues that the fact of being black males in a group and being at the specific address provide a sufficient nexus. I do not accept this proposition where, as in this case, the address is a large residential apartment building. Hundreds of people lived there. The tenants would have visitors as happens at any residential address. The effect of the Crown’s argument is that the bare information in the tip in this case would provide authority to stop any black male in a group of black males at that building. I have limited evidence regarding the ethnic or racial make-up of residents of the building. PC Mangiardi was asked about this in cross-examination if many of the residents were from the Caribbean and Somalia. He said it was hard to say, and it was “a mix of residents in the building”. He was asked if over 50% of the residents were people of colour. He responded that he was not sure. He ultimately said that the residents were “a mix of minorities and caucasians”. I find it surprising, given PC Mangiardi’s evidence that he attended at the building daily when he was on shift, that he would not know in general terms if a significant percentage of the building’s residents were racialized people. I have considered whether I can take judicial notice of the fact that a large residential building at Jane and Wilson is likely to have a higher proportion of racialized tenants (and their visitors) than in some other parts of the city. As a longtime resident of the city, I expect this to be the case; however, I do not find that it is an appropriate issue to take judicial notice of. However, the evidence before the court is that this building is 11 to 20 stories high, and houses hundreds of residents. Despite PC Mangiardi’s professed inability to speak to the racial make-up of the building in any detail, he did agree it was a mix of “minorities and caucasians” If the ethnic make-up of its residents is anything like the rest of the city, the residents and their potential visitors would be multiracial. The difficulty I see with the Crown’s position is it would provide authority to stop any group of black men in or around that building.

[88] As I outlined above, in my view, in circumstances involving confidential or anonymous information, if the tip itself is not sufficiently particularized to meet the reasonable suspicion standard, it could be combined with observations about the individual or individuals the police seek to detain, and together may meet the reasonable suspicion standard, depending on the full constellation of factors. However, on the record in this case, there is no behaviour by Mr. Sahal (or the other men) prior to the detention, that provides any support for reasonable grounds to suspect any involvement in any crime or the particular crime in the tip. The record does not support any unusual, or suspicious or suggestive of criminal behavior by Mr. Sahal or any of the men prior to the detention. The only possible suspicious behaviour could be the evidence given by PC Mangiardi of Mr. Sahal speeding up his walking (which I should add, even if I accepted that evidence, would be thin, at best). But as I have outlined above, I reject that evidence from PC Mangiardi, based on the security video, and on the absence of PC Rodriguez giving evidence that Mr. Sahal sped up his walking.

[89] I accept that suspicious or unusual behaviour by the person detained prior to the detention will not always be required for reasonable suspicion to exist in the context of police receiving a tip. But in a case like this one, where the tip the police are acting on is so bare that it is not sufficient in itself to support an investigative detention, then in my view it will often be necessary for the tip to be combined with some observations of the person or persons stopped that contribute to the grounds for detention. I reiterate, every case must be considered on its own facts, in the totality of the circumstances.

[90] For example, the investigative detention which was held to be lawful in R. v. Lewis (1998), 38 O.R. (3d) 540, 1998 7116 (ONCA), was based on a tip from an anonymous source, and did not involve any observations of unusual or suspicious behaviour on the part of the individual detained prior to the detention. But in Lewis the information that was the basis for the finding of reasonable suspicion was much more detailed and particularized than in this case.

[91] In Lewis, the tip from an anonymous source included the following information about the individual who the police ultimately detained: a man’s name, a physical description, a flight number and time the source said the man would be travelling on (boarding), and information that the man would be travelling with a two-year-old boy, and would be carrying cocaine concealed in a bottle of wine or rum. Police detained a man whose name and description matched the tip, and who arrived at the airport within an hour before the flight described in the tip, who was travelling with a small boy. Although the police had this detailed tip, they did not observe any unusual or criminal behaviour prior to detaining the man. The Court of Appeal held that although these circumstances did not amount to reasonable and probable grounds to justify an arrest at the outset, they were sufficient to constitute articulable cause (i.e., reasonable suspicion) for an investigative detention.

[92] In referring to Lewis, I am not suggesting that information with the level of detail in that case is always required to meet the reasonable suspicion threshold. What I am saying is that something more particular than the information in the tip in this case is required. The bare tip in this case (a group of black men, one with a firearm, at the address of a large residential building), combined with Mr. Sahal being a black man in a group of black men at the large residential apartment building in issue – which was the sum of the information available to police at the time of the stop on the record before the court – does not meet the reasonable suspicion threshold.

[93] Nor is this a case where a 911 call or emergency can justify police action which would otherwise infringe Charter standards: R. v. Godoy, [1999] 1 S.C.R. 311, 1999 709; R. v. Clayton, [2007] 2 S.C.R. 725, 2007 SCC 32.

[94] In Clayton, the police were acting on a 911 call from an agitated caller, at 1:22 a.m., who said he was inside a donut store across the street from a (specific, named) a strip club. The caller said there were about ten “black guys” in the parking lot at the front of the club, and that four of them had handguns “like glocks”. He said about their guns that “they had them and took them out and they put them back in all together”. He was able to identify four cars associated with the men with the handguns by make and model. The appellants, Clayton and Farmer, who were black males, were stopped in a vehicle leaving the strip club parking lot, four minutes after the 911 call was made. Prior to police stopping the vehicle, they observed no unusual or suspicious behaviour by either man (although some was observed once the vehicle was stopped). Although their vehicle was not of a make and model listed in the tip received by police, the court held that the combination of extreme urgency created by a 911 call about a very serious offence, a response within minutes of the 911 call, and that was very geographically circumscribed, justified the vehicle stop and detention.

[95] As I have noted, on the record before the court, the police who detained Mr. Sahal had no information about whether the tip information about the group of black males, one with a firearm, at the building, was recent information. PC Mangiardi had received it recently. But he did not know if the handler had received it recently, or if the confidential source had observed or learned the information recently. Thus, it did not have the temporal urgency of a 911 call.

[96] In pointing to the lack of any descriptive information whatsoever about the black men in the tip, or any unusual or suspicious behavior on the part of the defendant prior to the stop as the fatal flaws in this case, I do not want to be understood as saying that other hypothetical additional facts apart from a physical description could not be added to the information before the court to meet the reasonable suspicion threshold. For example, greater geographical specificity in the tip might in some circumstances contribute to a finding that the reasonable suspicion threshold was met. In this case, although a specific street address was given, the evidence is that it was a residential building of between 11 and 20 stories, and where hundreds of people live. In the absence of a more specific description of the group of black men in the tip, if the tip is held to provide sufficient information to constitute reasonable suspicion to stop any group of black men, anywhere in the building, it puts potentially a large number of black men at risk of being detained. By contrast, if the address was a single family residence, as a practical matter, the number of individuals at risk of being stopped is much narrower. The constitutional balance may be different. This is another factor which distinguishes this case from Clayton, where the 911 call tip was that four of about 10 black males had handguns out in the geographically circumscribed area of a strip club parking lot, in the middle of the night. The geographic specificity (as well as the urgency of the 911 call) was a significant factor in the Supreme Court holding that the vehicle stop, detention and search were justified in Clayton (at paras. 37-41).

[97] I find that the tip in this case, as put before the court, is so bare and generic that it does not amount to reasonable suspicion. If it did, it would amount to justifying the stop of any group of black men at that address that evening. That is not in accordance with the constitutional balance struck between the societal interest in law enforcement and the individual interest in liberty and being left alone struck in Mann and its progeny.

[98] My concern about the tip in this case not amounting to reasonable suspicion to stop Mr. Sahal and the other three men is not about the fact that the tip involved black men, as opposed to men of some other racial or ethnic group. I am, of course, alive to concerns about systemic racism in policing of racialized communities. And I will return to the issue of race in s. 24(2) analysis. But the argument that the police lacked reasonable suspicion to stop Mr. Sahal was not advanced on the basis of an argument about systemic racism. It was simply advanced on the basis that the information that the police had was not enough to meet the reasonable suspicion threshold in relation to Mr. Sahal.[^3]

[99] To illustrate this concern, I modify the tip in this case to be a different part of the city, and a different racial group, but otherwise with the same facts. Instead of the building being at Jane and Wilson, assume it is at St. Clair and Spadina, or at St. Clair and Avoca. The group of men in the tip are white males, not black males. Thus, the tip is:

Information was received that there was a group of white males in the building in question (a specific address was given), one of whom had a firearm.

[100] I ask rhetorically, could it be reasonably found that this version of the tip, changing only the targeted race and the location of the building, constitutes reasonable suspicion to stop any groups of white males exiting from a building in those locations? I find that it could not. There is nothing in the description of the white males in the tip to distinguish them from any other group of white males in a large residential building, nor is there any behaviour by the group of white males the police seek to detain that is suspicious or unusual. Indeed, it makes one wonder if the description of a person being “black” is somehow unconsciously (and incorrectly) considered as being somehow more distinctive than a description of a person being “white”.

[101] I accept that the reasonable suspicion is a relatively low threshold. But it is a threshold nonetheless. To allow the detention of any group of black males at the large residential building in this case, based on a tip of a group of black males, and one has a gun, with no further description of any of the males, and without any unusual or suspicious behavior by the detained males prior to their detention, would be inconsistent with the constitutional balance struck in Mann. It would be to invite the indiscriminate and discriminatory detentions based on generalized information that the Supreme Court cautioned against in Chehil. To allow such a detention would be to strike no balance between the societal interest in law enforcement and individual liberty, and to weight the scale entirely in favour of the law enforcement interest. That is not the societal balance we have struck under s. 9 of the Charter. In my view, to hold that the tip in this case would justify stopping any group of black men at the address at issue in the circumstances of the tip of this case would have a corrosive effect on society, and a corrosive effect on the relationship between the police and racialized communities.

[102] I understand and accept that police acting on confidential or anonymous source information regarding crime are in a difficult situation. I understand that street investigations and detentions are dynamic. I also acknowledge that the difficulty posed on review of the police grounds for detention in a case involving confidential source information (see post-script at the end of these reasons). But I must work with the record before the court. I cannot speculate about what other information may have been in the tip. The requirement for independent judicial oversight of investigative detentions means that the court cannot simply assume that the police had some other information which might justify the detention. Mann and its progeny set the constitutional minimum standard for these interactions, and that standard must be met based on evidence on the record before the court. Reasonable suspicion is a relatively low standard. But I find it is not met in this case.

[103] Before turning to the other alleged Charter breaches, I want to address one other aspect of the evidence, relating to problems of criminality at the apartment building at issue in this case. PC Mangiardi gave evidence that based on his experience attending at the building at issue in this case, there were ongoing problems with crime, in particular drug dealing and firearms in the building. He testified that it was not uncommon that residents of the building were “taken over” by “members of the criminal element” to conduct drug dealing activities.

[104] Crown counsel made no oral submissions about this evidence, but in his written submissions included “the officer’s familiarity and experience in the building” as a factor that supported the existence of reasonable suspicion to stop Mr. Sahal and the other males.

[105] Although I would not go so far as to say that evidence of the nature of a neighbourhood or building, and crime problems there, has no relevance to the assessment of whether the reasonable suspicion threshold is met, in my view giving this type of evidence anything more than minimal weight is fraught with pitfalls. Crime involving drugs and guns happens all over the city. Some neighbourhoods have worse problems than others. But the fact that someone lives in or frequents a neighbourhood or building with worse problems with drugs or other crime than some other neighbourhood does not mean that they are entitled to lesser protection of their Charter rights. The majority in Le expressed similar concerns over this type of analysis at paras. 132 and 165.

[106] Further, although PC Mangiardi described the problems with crime at the building, he did not testify that this contributed to his reasonable suspicion of Mr. Sahal and the other three males. I note that the fact of a problem with crime at that building, while providing some support for the credibility of the content of the confidential source information in this case, does nothing to particularize the information, or to support that any particular group of black males is more likely to be the group of black males in the tip.

Was Mr. Sahal’s right to be free from unreasonable search or seizure infringed?

[107] I will deal with the s. 8 issue briefly. In my view it, in the particular circumstances of this case, whether or not the search of Mr. Sahal’s person was unreasonable turns entirely on whether the detention was arbitrary.

[108] Not every investigative detention justifies a safety search. Police officers may search incident to a lawful investigative detention where they have a reasonable basis to believe that their safety or that of others is at risk. An officer’s decision to search cannot be justified on the basis or vague or non-existent concerns for safety, or premised upon hunches or mere intuition. The scope of the search is limited to searching for weapons, and does not allow searching for investigative or evidentiary purposes. Because searches incident to an investigative detention are warrantless searches, the Crown bears to burden on a balance of probabilities to show that the search was reasonable in the circumstances. In summary terms, a search incident to an investigative detention will only be justified if it is reasonably necessary, reasonably executed, and based on a reasonable belief by the police that officer safety or the safety of others is at risk in the totality of the circumstances: Mann at paras. 36-45; McGuffie at paras. 48-58; R. v. Peterkin, 2015 ONCA 8 at paras. 42-54.

[109] A reasonable suspicion that an individual has a handgun is a sufficient basis to conduct a pat search incident to an investigative detention: McGuffie at para. 51-52.

[110] I underline that a safety search in the context of an investigative detention has two conditions precedent. The first condition precedent is a lawful investigative detention. An officer safety search in this context is incidental to an investigative detention. If the detention is not lawful, there is no freestanding right to conduct a safety search. The second condition precedent is a reasonable basis for the officer to believe their safety or the safety of others it at risk. That is, a safety search is not justified in every investigative detention. I underline that reasonable basis is not the same as reasonable and probable grounds.

[111] As I have found that the police did not have reasonable suspicion to justify the investigative detention of Mr. Sahal, I find that the search cannot be justified as a safety search in the context of a lawful investigative detention. The detention was arbitrary, and therefore because the first condition precedent to the search is absent, the search is unreasonable.

[112] If I had found that the police had reasonable suspicion to conduct an investigative detention of Mr. Sahal, I would have found that the search was a justifiable officer safety search. If the detention had been lawful, in my view the fact that the tip included that a man in the group had a firearm would have provided a reasonable basis for a safety search.

Was Mr. Sahal’s right to counsel infringed?

[113] The defence alleges two s. 10(b) breaches. The first relates to the time of the initial detention. The second relates to PC Mangiardi questioning Mr. Sahal after he had been read his right to counsel (after the arrest), and asked to speak to duty counsel.

[114] Regarding the first alleged s. 10(b) breach, as with the search issue, in my view, in the circumstances of this case, whether or not Mr. Sahal’s s. 10(b) rights were infringed at the time of his initial detention turns on whether or not the detention was arbitrary.

[115] Section 10(b) requires that police implement the right to counsel without delay. This has been interpreted to mean immediately: Suberu at paras. 39-42. Suberu holds that the obligation to advise of the right to counsel immediately is subject to officer or public safety concerns (at para. 42; see also: R. v. Strachan, [1988] 2 S.C.R. 980, 1988 25; R. v. Rover, 2018 ONCA 745 at para. 26).

[116] It is not in dispute that the officers did not advise Mr. Sahal of his right to counsel immediately upon his detention. Thus, unless there was a safety concern to justify delay, the officers infringed Mr. Sahal’s right to counsel at the time of the investigative detention.

[117] As I have found that the police did not have reasonable suspicion to justify the investigative detention of Mr. Sahal, I find that there is not a basis to find that officer safety concerns justified delaying advising Mr. Sahal of his right to counsel.

[118] As I have explained above, if I had found that the police had reasonable suspicion to conduct an investigative detention of Mr. Sahal, I would have found that the search was a justifiable officer safety search. If the detention had been lawful, in my view the fact that the tip included that a man in the group had a firearm would have provided a reasonable basis for a safety search. In those circumstances, I would not have found a s. 10(b) breach at the time of the initial detention, because in the context of reasonable suspicion to conduct an investigative detention regarding possession of a firearm, the officers would have been justified in briefly delaying advising of the right to counsel until after they had conducted a pat search.

[119] Thus, I find that the police infringed Mr. Sahal’s s. 10(b) rights at the time he was initially detained because they did not advise him of his right to counsel immediately. Having made that finding, I note that no evidence was obtained relevant to the charges from that breach, because the only evidence directly resulting was the statements about where in the building Mr. Sahal had been and being with his friends. Further, in the particular context of this case, this s. 10(b) is somewhat technical, in that it is functionally not really distinct from the central issue, which is the arbitrary detention. I will assess the relevance of this in the s. 24(2) analysis.

[120] The second alleged s. 10(b) breach is both clearer, and exists whether or not the investigative detention was arbitrary. The defence alleges that by asking Mr. Sahal if the firearm was loaded after Mr. Sahal had said he wanted to speak to duty counsel (following the arrest and PC Rodriguez reading right to counsel), PC Mangiardi breached Mr. Sahal’s right to counsel, by eliciting evidence after he asked to speak to counsel. By the time of submissions, Crown counsel did not really contest the existence of this s. 10(b) breach, but rather took the position that in all the circumstances it was not significant, including that the Crown was not seeking to tender the statement elicited by PC Mangiardi during the second s. 10(b) breach.

[121] It is well-established, and has been for three decades, that once a detainee requests to speak to a lawyer, the police have an obligation to refrain from eliciting evidence until after the detainee has spoken to counsel: R. v. Manninen, [1987] 1 S.C.R. 1233, 1987 67; R. v. Ross, [1989] 1 S.C.R. 3, 1989 134; R. v. Bartle, [1994] 3 S.C.R. 173, 1994 64; R. v. Taylor, [2014] 2 S.C.R. 495, 2014 SCC 50.

[122] I find that PC Mangiardi breached Mr. Sahal’s s. 10(b) rights in eliciting evidence from him after Mr. Sahal said he wanted to speak to duty counsel. The chronology was clear on this issue. PC Rodriguez testified, and I accept his evidence on this issue, that he read Mr. Sahal his right to counsel at 8:48 p.m. PC Rodriguez testified that at that time Mr. Sahal asked to speak to duty counsel. Some time after Mr. Sahal asked to speak to duty counsel, PC Mangiardi asked him if the firearm was loaded, and Mr. Sahal responded that it was loaded.

[123] This is a clear breach of the obligation not to elicit evidence after a person under arrest has asked to speak to counsel. There was no evidence of any possible justification for this breach of Mr. Sahal’s s. 10(b) rights. I would add, hypothetically, if it the suggestion were made that the question was somehow related to officer safety concerns, one would expect that the officers would take steps to prove the firearm safe whatever Mr. Sahal’s response had been. So, asking whether the firearm was loaded cannot have been justified on a concern for officer safety.

[124] I will address Crown counsel’s argument about this breach not being serious under the s. 24(2) analysis.

Would admission of the evidence bring the administration of justice into disrepute?

[125] The analysis under s. 24(2) pursuant to the Supreme Court of Canada decision in Grant requires me to consider the following factors in assessing whether in all the circumstances, admission of the physical evidence would bring the administration of justice into disrepute: first, the seriousness of the Charter-infringing state conduct; second, the impact of the breach on the Charter-protected interests of the defendants; and third, the societal interest in a trial on the merits: Grant at paragraphs 71-98, 112-115.

[126] The seriousness of the breach inquiry requires the court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending the message that the courts condone state conduct in breach of the Charter by refusing to disassociate themselves from the products of that conduct. The more serious or deliberate the conduct, the greater the need for the courts to dissociate themselves from it in order to preserve public confidence in the justice system and the rule of law: Grant at paragraphs 72-75.

[127] The second branch of the Grant analysis focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the defendant, and the extent to which the breach actually undermined the interests the right at issue is designed to protect. The more serious the impact on the defendant, the more strongly this factor will weigh in favour of exclusion: Grant at paragraphs 76-78.

[128] The third branch of the Grant analysis requires the court to consider the societal interest in a trial on the merits. Admission of reliable physical evidence may be more likely to support the societal interest in the truth-seeking function of a trial that will admission of a statement: Grant at paras. 79-84; 89-98; 112-115.

[129] At the same time, I must consider the important societal interest in protection of the Charter rights of individuals and in ensuring that the police respect Charter rights in carrying out their duties: Grant at paragraphs 79-84. In the case of a serious Charter breach, the long terms impact on the administration of justice may favour exclusion of evidence.

[130] There is no dispute that the seizure of the firearm, and the statement about it being loaded obtained after Mr. Sahal asked to speak to duty counsel, were obtained in a manner that infringed Mr. Sahal’s Charter rights. The obtaining of both of these pieces of evidence is causally, temporally, and contextually related to the Charter breaches I have found above.

(i) The Seriousness of the breach

[131] I find that the arbitrary detention of Mr. Sahal is a serious Charter breach for several reasons. First, as I have outlined above, the reasonable suspicion standard for investigative detention represents a constitutional balance struck between the societal interest in law enforcement, and the societal interest in protection of rights, including the right to privacy, liberty, and security of the person. In light of my finding that the police failed to meet the reasonable suspicion threshold, Mr. Sahal had the right to be left alone. As I have noted, reasonable suspicion is a relatively low threshold. The fact that the detention in this case could not even meet that low standard, in my view, makes the s. 9 breach in this case a serious one. If the police cannot meet the constitutional threshold that justifies a detention, then the action of detaining someone and restricting their liberty is a serious breach.

[132] My conclusion regarding the seriousness of the section 8 breach is the same as for the section 9 breach, since on the facts of this case, the two breaches go hand in hand. Because the police did not have reasonable suspicion to detain Mr. Sahal, they also did not have a basis to do a safety search incident to the detention. A safety search cannot be justified as incident to an unconstitutional detention. The search is a serious breach, because Mr. Sahal had the right to be left alone.

[133] One might be tempted to reason that because the police were acting on confidential source information, they must have been acting in good faith, because they must have had some other information, not before the court, which justified the search. It would be wrong to reason this way. I do not know what, if any, other information the police had. The requirement of judicial supervision requires that the court be satisfied that proper grounds existed for the detention. I appreciate the difficulties that this may cause for the Crown where the police act in whole or in part on information from a confidential source. But grounds for detention must be justified on the record before the court. In this case they were not. Unknown information which may or may not exist cannot be the basis for a finding that the police acted in good faith. The standard for investigative detentions has been clear at least since Mann (in this province, prior authority from the Court of Appeal set out a similar standard even earlier): Le at para. 149. I find that the detention without sufficient grounds in this case was not in good faith.

[134] Second, my concern about the seriousness of the breach is aggravated by the particular circumstances in this case that the police theory of why they had grounds to detain Mr. Sahal would justify the detention of any black man in a group at that large residential building that evening.

[135] I find that it is important for the court to dissociate itself from the conduct of the police in this case of stopping this group of black males solely on the basis that they were black males at the address of a large residential building, in the absence of more particularized grounds. As I have discussed above, I find that this is the type of generalized information that leads to indiscriminate and discriminatory detentions, which the Supreme Court cautioned against in Chehil.

[136] The Supreme Court has recognized in Chehil and MacKenzie that investigative detentions with sufficient grounds will sweep innocent individuals into their purview. That is the constitutional balance our society has struck. But purported investigative detentions without sufficient grounds will sweep in more innocent individuals. Most of the time, these innocent individuals will not even come before the court (where nothing incriminating is found). Exactly that situation happened in this case with two of the detained men. I highlight their situation not to rely on a breach of their Charter rights (since Mr. Sahal can only rely on breaches of his own Charter rights), but as examples to illustrate the harm from detentions of racialized individuals conducted with insufficient grounds. The evidence in this case is that the three other men were all placed under arrest for firearm possession immediately after the firearm was found on Mr. Sahal. They were all searched (with no evidence before the court that anything incriminatory was found on any of them). They were held at the scene, under arrest, for approximately 1 hour and 15 minutes (from 8:42 p.m. to 9:55 p.m., according to PC Rodriguez). At the end of that time, two of the three of them were released without any charges. The mother of one of the men who was released without charges lived on the third floor of the building.

[137] The Supreme Court recognized in Grant (at para. 75) that for every Charter breach that is uncovered, there are others that will never be identified or redressed because they did not lead to a criminal charge. That is exactly what happened in this case to the two men who were detained, arrested, and held for approximately 1 hour and 15 minutes, on exactly the same basis as Mr. Sahal (black men in a group at the address of the particular large residential building), but then released without charges. I refer to the other men not to allow Mr. Sahal to rely on the breaches of their rights (which the law does not permit), but rather to illustrate the seriousness of detaining a group of racialized men, including Mr. Sahal, without sufficient grounds to justify the constitutionally justify the detention. I find that this aggravates the seriousness of the breach, and the need for the court to dissociate itself from police carelessness with Charter standards in this investigation.

[138] Third, I find that PC Mangiardi’s evasiveness and lack of candour in his evidence aggravate the seriousness of the breach.

[139] My fourth concern about the seriousness of the breach relates to one of the s. 10(b) breaches. I do not find the first s. 10(b) breach to be a significant factor in the s. 24(2) analysis. As I have noted above, it did not lead to the police obtaining any evidence relevant to the charges. Further, it does not really add anything to the s. 9 breach (because of my finding, above, that the s. 10(b) breach at the time of the initial detention is only a breach because of the absence of sufficient grounds for an investigative detention).

[140] But the second s. 10(b) is different. I find that the second s. 10(b) breach aggravates the seriousness of the breach because it shows a careless attitude towards protection of Charter rights on the part of PC Mangiardi. The law is well-settled that the police must not elicit statements from people under arrest or detention before they are given the opportunity to speak to counsel (if, as here, the detainee has said they wish to speak to counsel when given the informational component of the right). The law in this area has been well-settled for three decades. Ignorance of or failure to follow established Charter standards cannot be equated to good faith: Grant at para. 75.

[141] Thus, I find that considering the context of the breaches as a whole, the breaches in this case are serious, and favour exclusion of the evidence.

(ii) The Impact on the Charter-protected interests of the defendant

[142] I find that the impact on Mr. Sahal of the ss. 9 and 8 Charter breaches was significant. In circumstances where the police did not meet the constitutional threshold for an investigative detention, Mr. Sahal had a right to be left alone. The infringement on his liberty from the detention, and on his security of the person and privacy from the search, is significant. He was stopped from going on his way. He was searched. All because he was a black male with a group of black males, at a specific large residential apartment building – with nothing more. This is a significant infringement of the freedom of movement and privacy we all enjoy as citizens of a constitutional democracy: Le at paras. 152-53, 157.

[143] Crown counsel argues that if there was a breach of Mr. Sahal’s ss. 8 and 9 rights, it was a relatively brief detention up to the point the firearm was found, and the manner of the search was not inappropriate. While it is true that the detention (prior to the firearm being found) was brief, and the pat search was not done in an inappropriate manner, respectfully, it misses the point to focus on these factors. In the absence of the constitutional minimum standard to justify the detention and search being met, Mr. Sahal was entitled to be left alone by police. The breach of that right is serious, even if it was brief, and even if the manner of the search was not inappropriate: Le at paras. 154-57.

[144] Crown counsel argues that the firearm (and ammunition) are physical evidence, and thus reliable. Crown counsel also argues that the firearm was discoverable.

[145] It is true that the firearm is physical evidence, and thus reliable. However, I reject Crown counsel’s submission that it was discoverable. I find that the evidence is clear in this case that the firearm was not discoverable absent the ss. 8 and 9 Charter breaches. Neither officer saw the firearm or made any observations suggesting that Mr. Sahal had a weapon until he started lifting his sweater. This occurred after the arbitrary detention had commenced, and after PC Mangiardi had directed Mr. Sahal to lift his sweater. Thus, the observations the officers made of the weighted item in Mr. Sahal’s sweater pocket were only made after Mr. Sahal was arbitrarily detained, and after the unreasonable search had commenced: Le at para. 156. The record before the court does not support that the firearm was discoverable absent the ss. 8 and 9 breaches.

[146] Regarding the first s. 10(b) breach, at the time of the initial detention, I find that it did not have a significant impact on Mr. Sahal’s Charter-protected interests. As I have noted above, it did not lead to the police obtaining any evidence relevant to the charges.

[147] My conclusion regarding the second s. 10(b) breach is different. I find that PC Mangiardi asking Mr. Sahal if the firearm was loaded after Mr. Sahal had been informed of his right to counsel and asked to speak to duty counsel had a significant impact on Mr. Sahal’s right not to be conscripted to provide evidence against himself. PC Mangiardi eliciting evidence after Mr. Sahal had asked to speak to duty counsel led to Mr. Sahal making a self-incriminating statement that the handgun was loaded (i.e., that he knew the handgun was loaded).

[148] Crown counsel in submissions said that the Crown was not seeking to tender this statement at trial, and had not sought a ruling on its voluntariness. It is commendable that Crown counsel was not seeking to tender this statement as evidence. But that does not change the fact that it is a self-incriminatory statement obtained by PC Mangiardi breaching Mr. Sahal’s s. 10(b) right to counsel by eliciting evidence after he had asked to speak to duty counsel.

[149] For these reasons, I find that the impact of the breaches on Mr. Sahal’s Charter-protected interests was significant, and favours exclusion of the evidence.

(iii) The Societal interest in a trial on the merits

[150] The societal interest in a trial on the merits is the most difficult part of the s. 24(2) assessment in this case. There is no question that excluding the firearm and ammunition means that there will be no trial on the merits. The Crown cannot prove its case without the seized firearm.

[151] Illegal possession of firearms, and the other criminality it supports, are terrible problems in this city. It is would be difficult to overstate the harms that firearms cause in this city. Thus, there is a strong societal interest in a trial on the merits.

[152] But Grant instructs that the courts must also consider the important societal interest in protection of the Charter rights of individuals and in ensuring that the police respect Charter rights in carrying out their duties: Grant at paras. 79-84. Disrepute of the administration of justice can also result from the courts condoning unacceptable police investigatory practices: Le at paras. 158-59. I find that this factors has weight in this case in light of my finding that the police stopped Mr. Sahal solely on the basis that he was a black men, with a group of black men, at the large residential apartment in issue. As was recognized in Le (at paras. 162 and 165), public confidence of the community, and in particular of members of racialized communities, is adversely affected by police conduct that falls below constitutional thresholds, when it is based on racial considerations.

[153] On balance, I find that the interest in a trial on the merits supports admitting the evidence. But I bear in mind the adverse impact on public confidence in the administration of justice of police activity that causes racialized groups to disproportionately bear the impact of police activity that is not in compliance with Charter standards.

(iii) Conclusion on s. 24(2) analysis

[154] As the Court of Appeal noted in R. v. McGuffie at paras. 60-64, 73-74, the s. 24(2) analysis requires both fact-finding, and the weighing of various often competing interests. In terms of guidance for how to weigh the three Grant factors, the Court of Appeal observed that where the first two factors make a strong case for exclusion, the third factor will seldom tip the balance in favour of admissibility (see also Le at para. 142). Where the first two inquiries provide weaker support for inclusion, the third factor will usually confirm admissibility of the evidence. But the assessment under s. 24(2) is not a mathematical exercise.

[155] In this case, the first two factors strongly favour exclusion. Although the third branch favours admitting the evidence, there are concerns within the third branch that lean the other way.

[156] I find that the issue of the prominence of the race of Mr. Sahal – a black male with a group of black males, at a particular address – as the basis for the detention, in the absence of any particularized information in the tip to narrow the group down beyond any black men in a group at that address, and in the absence of any suspicious or unusual conduct by Mr. Sahal prior to the detention is a factor that gives me real concern for the perceptions of the administration of justice by reasonable members of the public, if the court does not dissociate itself from the detention and search in this case.

[157] In my view, the long term repute of the administration of justice favours the exclusion of the evidence. On balance, I find that it would bring the administration of justice into disrepute to admit the firearm and ammunition into evidence. I reach the same conclusion for the statement elicited by PC Mangiardi after Mr. Sahal asked to speak to counsel, in breach of Mr. Sahal’s s. 10(b) rights.

Conclusion

[158] For these reasons, Mr. Sahal’s Charter application is granted. I find that his rights under ss. 8, 9, and 10(b) of the Charter were infringed. I find that admitting the firearm into evidence would bring the administration of justice into disrepute. I reach the same conclusion about the incriminating statement made after Mr. Sahal had asked to speak to duty counsel; although I acknowledge that Crown counsel was not seeking tender the statement. The evidence is excluded.

Post-script

[159] As a post-script, I reiterate that according to the jurisprudence, I can only consider the record before the court in assessing if the necessary grounds (reasonable suspicion) existed for the investigative detention and search of Mr. Sahal. Because of the claim of informer privilege, I do not know whether the police had more information which could have supported the grounds for the detention. There may have been; there may not have been.

[160] Crown counsel did not ask the court, by analogy to the procedure in R. v. Garofoli, [1990] 2 S.C.R. 1421, 1990 52, step 6, to consider ex parte some additional portion of the information over which informer privilege is claimed (if any exists), in order to assess whether the detention could be justified on the reasonable suspicion standard (with the type of safeguards discussed in Garofoli). I am not suggesting any fault in this decision by Crown counsel. Difficult considerations must be balanced where confidential source information is involved.

[161] There is trial level case law supporting that the step 6 procedure can be used in the context of a warrantless arrest: R. v. DaCosta, 2014 ONSC 4126 at paras. 50-51; R. v. Douale, 2016 ONSC 3912 at para. 40; R. v. Learning, 2010 ONSC 3816 at paras. 90-109. I note that the context in which step 6 was applied in DaCosta and Douale was somewhat different than this case. In DaCosta, following a warrantless arrest based on confidential source information, a search warrant was obtained for the accused man’s residence. In Douale, warrantless arrests were conducted after the police had already obtained search warrants based on confidential source information for places associated with both accused men. The arrests were made just prior to executing the search warrants. Because of the fact that search warrants were obtained in DaCosta and Douale, the confidential source information which was the basis for the warrantless arrests in each of those cases was committed to writing essentially contemporaneously with the warrantless arrest (in the information to obtain the search warrant). [^4]

[162] It may be that the entirely warrantless context of this case makes a procedure similar to step 6 of Garofoli inappropriate, because of the absence of prior authorization for any aspect of the investigation, and the fact that the grounds were not committed to writing contemporaneously with the investigation. It may also be that given the already low standard to justify an investigative detention (reasonable suspicion) adding in the effect of step 6 of Garofoli of giving the defence less than full information to about the asserted grounds to justify the detention becomes unfair. I do not rule on this issue today, as Crown counsel did not seek to rely on step 6. But I flag the issue as one with potential relevance to cases where a detention (or an arrest) is based on information from a confidential source.

[163] I thank both counsel for their assistance, professionalism, and collegiality, in the hearing of this application.

Justice J. Copeland

Released: December 3, 2020

COURT FILE NO.: CR-19-40000501-0000

DATE: 20201203

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ISMAEL SAHAL

RULING ON CHARTER APPLICATION

Justice J. Copeland

Released: December 3, 2020

[^1]: In using the term “confidential source”, I mean only that the Crown has claimed informer privileged to protect the identity of the source. There is no information before the court about whether the source in this case had a previously history of providing information to police, or whether they were a one-time caller.

[^2]: Neither officer expressly testified about the time of Mr. Sahal’s arrest. But PC Rodriguez testified that the other three men were arrested at 8:42 p.m., and it is clear from the chronology that they were arrested immediately after Mr. Sahal was arrested.

[^3]: I am also alive to the reality that systemic racism is rarely expressly stated, and that it could be argued that an investigative detention in the absence of proper grounds is evidence of systemic racism. There may be merit to this argument in many cases. But I was not asked to draw that conclusion in this case.

[^4]: In Learning, although Justice Code commented favourably on the availability of the step 6 process in relation to a warrantless arrest, ultimately the Crown did not ask the court to rely on step 6, and he found that the redacted information did not provide reasonable and probable grounds for arrest. I note that the factual situation in Learning was similar to DaCosta and Douale, in that in Learning, the accused was arrested without a warrant, largely on the basis of information from a confidential informant, while a search warrant was being prepared. The confidential informant information was committed to writing very soon after the arrest in the information to obtain the search warrant.