Court File and Parties

Court File No.: CR-19-40000246-0000 Date: 2021-03-02 Superior Court of Justice - Ontario

Re: R. v. Ivan Lira

Before: Justice Spies

Counsel: K. Batorska, for the Crown J. Casey, for the Defence

Heard: February 8, 9, 11, 12, 15-18, 22, and 24, 2021

RULING ON DEFENCE Charter APPLICATION TO EXCLUDE EVIDENCE

Introduction

[1] The defendant Ivan Lira is charged with six sets of robbery offences, including pointing a firearm and disguise with intent, arising out of six robberies that occurred between January 19, 2018 and February 28, 2018. In addition, he is charged with offences relating to possession of a firearm – a rifle, a magazine, and ammunition, which were found inside a suitcase that Mr. Lira was pulling at the time of his arrest on March 1, 2018 – and one charge of possession of a weapon contrary to a prohibition order.

[2] Mr. Lira re-elected trial by judge alone and pleaded not guilty to all charges. Mr. Lira and the Crown consented to conducting this trial entirely by Zoom.

[3] William Snyder, Mr. Lira’s co-accused, was charged with three sets of offences arising out of three of the six robberies. Mr. Snyder pleaded guilty on November 18, 2019.

[4] At the outset of trial, Mr. Lira brought an application to exclude all the seized evidence, alleging breaches of his rights under ss. 8, 9, and 10(b) of the Charter of Rights and Freedoms. After his arrest, Mr. Lira was transported to 13 Division. A search warrant was sought for both a residence associated to Mr. Lira and a residence associated to Mr. Snyder. Mr. Lira’s right to call a lawyer was suspended until the search warrant of his residence was executed and there was a further delay in his speaking to counsel of choice thereafter. Counsel agreed to a blended voir dire and the Crown called most of the officers involved in the investigation of the robberies, and officers involved in the arrest and search of Mr. Lira and Mr. Snyder. In addition, a few witnesses to the robberies were called. Surveillance videos relevant to the robberies, including still shots from those videos (“stills”), and an Agreed Statement of Fact were entered into evidence. Mr. Lira did not testify on the voir dire.

[5] At the conclusion of the voir dire, and after hearing the submissions of counsel, I advised Mr. Lira and counsel on February 24, 2021 that I had decided to dismiss the Defence Charter application to exclude evidence and that I would provide written reasons for my decision. These are those reasons.

The Issues

[6] It is the position of Ms. Casey, counsel for Mr. Lira, that the police did not have reasonable grounds to make a warrantless arrest of Mr. Lira. As such, his arrest breached his s. 9 Charter rights and the search incident to arrest was unreasonable and contrary to s. 8 of the Charter. It is also her position that Mr. Lira’s s. 10(b) Charter rights were breached by the police decision to suspend his right to call a lawyer and the subsequent delay before he was able to speak to counsel. As a result of these Charter breaches, she argues that the evidence – namely the firearm, magazine, ammunition, and a cell phone found on Mr. Lira’s person at the time of his arrest – should be excluded pursuant to s. 24(2) of the Charter.

[7] The position of Ms. Batorska, counsel for the Crown, is that Detective (“Det”) Manan Nasser, the officer who issued the order to arrest Mr. Lira, had reasonable grounds to order his arrest and that the arrest was therefore lawful. She also submits that the search incident to arrest was valid and lawful. It is the Crown’s position that Mr. Lira’s right to counsel was justifiably suspended because of concerns about the destruction of evidence and officer and public safety, given that a handgun that was used in four of the robberies was outstanding at the time of his arrest. The Crown also states that the further delay in calling counsel following the execution of the search warrant rests with Mr. Lira; by refusing to speak to duty counsel when his counsel of choice was unavailable, he was not reasonably diligent in exercising his right to consult counsel. Ms. Batorska submits in the alternative that if any of Mr. Lira’s Charter rights were breached, no evidence should be excluded pursuant to s. 24(2) of the Charter.

[8] Ms. Casey concedes that if Mr. Lira was lawfully arrested, the searches that were conducted were lawful searches incident to his arrest and those searches resulted in the discovery of the firearm, magazine, ammunition, and cell phone. She did not suggest that any of the searches were carried out in an unreasonable manner.

[9] For reasons I will come to, it was agreed that the onus is on the Crown to establish on a balance of probabilities that Mr. Lira’s arrest was lawful, and that the onus is on Mr. Lira to establish on a balance of probabilities that there was a breach of his s. 10(b) Charter rights.

[10] The issues therefore are:

a) Has the Crown proven that Mr. Lira’s arrest was lawful?

b) Has Mr. Lira proven that his s. 10(b) Charter rights were breached?

c) If there was a breach of any of Mr. Lira’s Charter rights, should any evidence be excluded from the trial pursuant to s. 24(2) of the Charter?

The Evidence

[11] In each of the six robberies, two suspects entered the premises in question. Consistently, only one suspect was armed with a firearm and the other carried a reusable shopping bag or another type of bag to place stolen items into. It is the position of the Crown that Mr. Lira was the suspect who carried the firearm in all six robberies. That will be an issue for the trial. However, since the police witnesses generally referred to the suspect with the firearm as Suspect #1, for the purpose of these reasons that is how I will refer to the suspect with the firearm. I will refer to the other male, who is only seen with a firearm at the first robbery at a McDonald’s restaurant, as Suspect #2.

[12] On the issues before me on this application, the main witnesses were Det. Nasser, who made the decision to have Mr. Lira arrested, and Detective Constable (“DC”) Daniels, who agreed with that decision and, along with Det. Nasser, decided to suspend Mr. Lira’s right to call a lawyer. Counsel were careful to have Det. Nasser in particular distinguish in his evidence what he knew before he decided to arrest Mr. Lira and what he learned thereafter.

[13] I heard a lot of evidence about what the suspects in the robberies were wearing, as described by witnesses and shown in the surveillance videos. I have not repeated that evidence because Det. Nasser testified that he did not rely on any particular piece of clothing worn by the suspects as a way of linking the robberies, save for what he described as a black, three-hole balaclava that had two round holes for eyes and one for a mouth (the “3-hole balaclava”). That type of balaclava was worn by Suspect #1 during many of the robberies and by Suspect #2 on some occasions. As I will come to, Det. Nasser testified as to why he believed the 3-hole balaclava to be significant.

[14] I also heard a lot of evidence that will only be relevant to the trial. The nature of the issues on this application meant that I heard a lot of hearsay evidence, particularly as neither Det. Nasser nor DC Daniels attended the scene of any robbery to investigate shortly after it occurred. I also heard evidence from Det. Nasser about the developing beliefs the police had about the type of rifle being used in some of the robberies. This evidence was not admitted for its truth. It was admissible on the voir dire only because it was information that Det. Nasser and DC Daniels relied upon in making decisions with respect to the investigation of the robberies and the arrest of Mr. Lira.

The Experience of the Officers

[15] The Toronto Police Service (“TPS”) has five districts with hold-up squads (“HUS”), each comprised of one group of officers who investigate bank robberies and another group who investigate robberies of retail establishments. Each district covers a number of police divisions and each HUS investigates robberies that occur in any of the police divisions within its district. Generally, someone from hold-up goes to each robbery to do the initial investigation and then the robbery is investigated by the district in question. There are exceptions, as there were in this case, when multiple robberies are believed to be perpetrated by the same suspects; where such a connection is suspected, the HUS that investigates the first robbery will also investigate all the other robberies, regardless of type or which division they are in.

[16] Det. Nasser has been with TPS for a little over 15 years. At the time of this investigation, he had been with the HUS for eight months. He had a great deal of investigative experience, however, including just shy of three years with the Major Crime Unit (“MCU”), one year with National Security, and four years with Guns and Gangs. He and DC Daniels mainly investigated robberies in police Divisions 11-14 on the retail side. Another team was responsible for bank robberies in their district. DC Daniels has also been with TPS for 15 years. At the time of this investigation, he was a Detective Constable, but he has since been promoted to Detective. I will refer to him as DC Daniels given that was his position at the time of this investigation.

The Start of the Investigation

[17] Det. Nasser and DC Daniels were responsible for investigating a robbery that took place at a McDonald’s in 13 Division on December 17, 2017, as it was a retail robbery in their district. After this, a robbery at a Shoppers Drug Mart (“SDM”) on January 11, 2018 and a robbery at a Canadian Imperial Bank of Commerce (“CIBC”) on January 19, 2018 all seemed connected, in that it was believed that the same suspects robbed all three places. As a result, because Det. Nasser and DC Daniels had investigated the first robbery at the McDonald’s, they were put in charge of the larger investigation, which ultimately included nine robberies all believed by police to be related and to have been committed by the same two suspects.

[18] Det. Nasser was the lead on this investigation and, according to DC Daniels, had the final say in all decisions. DC Daniels also testified that Det. Nasser split the duties involved in this investigation quite evenly with him. Neither attended the scene at the time of the robberies but were made aware of them either shortly thereafter or as much as many days later if they were on holiday. Once they took charge of an investigation, they had the information for the entire occurrence available to them, which included the notes of officers who attended the scene and took witness statements, surveillance videos, stills from those videos, and other information. Det. Nasser testified that he reviewed the surveillance videos from each of the robberies within days of their occurring. Information Bulletins were prepared that Det. Nasser and DC Daniels approved of. They were issued across the TPS in the hope that another officer might have information that would assist in the investigation.

[19] As already stated, Mr. Lira is charged with six of those nine robberies. I heard evidence about the robberies Mr. Lira is not charged with as they are relevant to what Det. Nasser and DC Daniels believed when Det. Nasser decided to have Mr. Lira arrested.

December 17, 2017 – Robbery at the McDonald’s at 2781 Dufferin Street

[20] A McDonald’s at 2781 Dufferin Street was robbed on December 17, 2017. Det. Nasser did not hear of this robbery until December 29, 2017 because he had been on holiday. DC Daniels learned of this robbery on December 19, 2017and began the investigation.

[21] Det. Nasser understood that there were at least three suspects – two in the McDonald’s and one who stayed in the getaway vehicle. Both suspects seen in the McDonald’s were wearing a 3-hole balaclava. Suspect #1 had a large assault rifle in his right hand, which he discharged; no one was hit. The other suspect had a black handgun. The getaway vehicle was believed to be a white 1993 Honda Civic with licence plate AYYX284, that had been stolen on December 14, 2017. The vehicle was recovered after the robbery on December 17, 2017, about one and a half kilometers away.

[22] On January 3, 2018, Det. Nasser contacted Yorkdale Mall to see if the vehicle with licence plate AYYX284 had been seen there, as the mall is relatively close to the McDonald’s. He had no luck.

January 11, 2018 – Robbery at the Shoppers Drug Mart at 701 Sheppard Avenue East

[23] On January 22, 2018, Det. Nasser was assigned to investigate the robbery of an SDM at 701 Sheppard Avenue East that occurred on January 11, 2018. He collected surveillance videos and saw that there were two male suspects. Both had gym bags and were wearing 3-hole balaclavas. Suspect #1 had a rifle in his right hand that looked similar to the rifle seen in the surveillance videos of the McDonald’s robbery. Because these two events appeared to be linked, the SDM robbery was assigned to Det. Nasser and his team even though it was not in their district.

[24] Police had no information about a vehicle. Det. Nasser explained that there is no parking lot in front of this SDM and no exterior camera, so if a vehicle had been used in the robbery it could not be seen. DC Daniels searched for a vehicle that had possibly been used but did not find one.

Counts 1-3 – January 19, 2018 – Robbery at the CIBC at 201 Lloyd Manor Road

[25] On January 22, 2018, Det. Nasser was made aware of the robbery of a CIBC at 201 Lloyd Manor Road. The bank section of hold-up had done the initial investigation. This was believed to be related to the other two robberies, so Det. Nasser and his team were tasked to investigate. Suspect #1 held what was believed to be the same large rifle used in the earlier robberies and was wearing a 3-hole balaclava. Suspect #2 was wearing a bandana. Det. Nasser believed Suspect #2 was white because, as he entered the bank, he adjusted his mask and some of his face was not covered. Det. Nasser also noted that Suspect #2 was carrying two or three reusable shopping bags and put something in the door to the bank to keep it from closing. That item was left behind and turned out to be a burgundy jacket.

[26] Det. Nasser testified that he has seen robbers put something in the door to prevent it from closing in robberies in jewelry stores where customers need to be buzzed in and out. Det. Nasser believed the suspects were doing this to prevent being locked in because the doors to this kind of jewelry store lock automatically if closed. Prior to the robberies in issue, Det. Nasser had never seen this done at a bank or retail robbery other than a jewelry store.

[27] Det. Nasser commented on stills taken from the surveillance video inside the bank that show Suspect #1 holding the rifle. He could see that Suspect #1 was holding the rifle in his right hand and turning it sideways so that his palm was facing downwards. Det. Nasser pointed out the grip of the rifle, which looked like a pistol grip because it was missing a piece where the rifle would rest on one’s shoulder. Without this piece, the rifle is smaller. Det. Nasser also pointed out the angled piece that protruded from the middle of the rifle, which he said was the magazine where bullets could be stored. Regarding a still showing the entire rifle, Det. Nasser testified that the barrel looked to be a normal length. He also identified the front sight protruding from the of top of the barrel and the piece protruding from the bottom of the rifle, just behind the sight, which he said could be used to attach the rifle to something like a tripod. Det. Nasser testified that during the investigation, there was a debate among the officers as to what type of rifle Suspect #1 was holding. The majority view at the time was that he was armed with an AK47. Later, there was general agreement among the officers that it was an SKS rifle, and the suspects of these robberies became known to police as the “SKS bandits”.

[28] Det. Nasser testified that he learned that a witness inside the bank heard Suspect #1 say, “Fuck, fuck, it broke–it broke”, as he was holding what the witness thought was a machine gun. It is clear from the video evidence that the length of the barrel did not change when Suspect #1 carried the rifle in and out of the bank. Det. Nasser admitted in cross-examination that there is confusion in the occurrence report for the January 19, 2018 robbery as to whether it was Suspect #1 who yelled “it broke”. Det. Nasser did not draft the report and could not definitively say which suspect made the comment, but at the time he believed it was Suspect #1. Det. Nasser believed it was the rifle that broke because there was nothing else in Suspect #1’s hand. Again, he could not say definitively what broke, but after this robbery the rifle was not used again until February 28, 2018. As I will come to, Det. Nasser believed the same rifle was used then, but the length of the barrel had been shortened.

[29] A witness to the robbery thought the suspects were in a Toyota Corolla but did not get the make or model. I heard no other evidence about a vehicle on the voir dire.

Counts 4-6 – January 29, 2018 – Robbery at the Royal Bank of Canada at 415 The Westway

[30] Det. Nasser was told about a January 29, 2018 robbery at a Royal Bank of Canada (“RBC”) at 415 The Westway on February 13, 2018. He learned that there were two male suspects. Suspect #1 had a silver or chrome handgun in his right hand and was wearing a 3-hole balaclava. Suspect #2 was wearing a one-hole balaclava, with the opening at his eyes, and he put a piece of cardboard in the door as the suspects entered to keep it from closing. Suspect #2 was carrying red reusable shopping bags that Det. Nasser believed were from SDM.

[31] Det. Nasser pointed to some stills from this robbery in which Suspect #1, as he walked into the bank, was holding the handgun to the side in his right hand, pointing at people. From stills showing the handgun, Det. Nasser testified that he believed Suspect #1 was “racking” the handgun because it looks like it has two barrels. He explained that you have to pull the top of the handgun back to load it properly; racking allows a bullet to go into the chamber. Det. Nasser also pointed out a still where you can see that the hammer at the back of the firearm is pulled back, so it is ready to fire – you only have to pull the trigger.

[32] Det. Nasser testified that he believed that, even though this time a silver handgun was used and not a rifle, the robberies were similar. It was his belief at the time of the investigation that as a result of the previous robbery at the CIBC at 201 Lloyd Manor Road and based on what the witness said he heard Suspect #1 say, the rifle may have been damaged and therefore was not used in this robbery.

[33] No witness saw a vehicle used in this robbery, but surveillance video from a Tim Hortons located in the same plaza shows what appears to be a silver or grey four-door car travelling in the direction of the bank at approximately 1:23 p.m. that day. The passenger appears to be wearing a red or orange top that Det. Nasser thought was consistent with what Suspect #1 wore during the robbery. Based on the surveillance videos, Det. Nasser believed the getaway vehicle was an older-model, silver Honda Civic, licence plate CDDR919, that had been stolen two days earlier on January 27, 2018. This vehicle was recovered within a few hours of the robbery at a location only 230 metres away from the bank as the crow flies.

[34] In cross-examination, it was put to Det. Nasser that it made no sense that the suspects would hold onto a stolen vehicle for two days before the robbery. Det. Nasser responded that he did not know that the suspects had the vehicle on January 27, 2018 and that all he could be sure of is that they accessed it at some point between January 27 and 29, 2018. Det. Nasser also testified that it would be a mistake to try to make sense of this, as these things do not always make sense. What did make sense to him is that the suspects would want to scout out the location of the robbery in some way by walking or driving by.

[35] The investigators reviewed surveillance video from 53 Callowhill Drive, just east of the plaza where the RBC is located, taken on January 29, 2018 at approximately 1:20 p.m. Det. Nasser testified that it shows what looks like Suspect #1 walking on Callowhill Drive, followed by a man that looks like Suspect #2. Det. Nasser said that, although based on the video the suspects appeared to walk by 53 Callowhill Drive towards the RBC, if the time on the video was off a little when it was seized that could make a difference. In fact, Det. Nasser testified that he believed the suspects were walking away from the robbery or going to a different vehicle. He said he was almost certain that they used a different stolen vehicle to leave the area of the robbery and that they did this for a number of the robberies. It was his belief that they would not leave on foot with a firearm and stolen property in their possession. He believed these suspects had access to several stolen vehicles.

[36] Det. Nasser noted that in slides of the Honda with licence plate CDDR919 and slides of other recovered vehicles believed to be used in these robberies, the right side of steering column is “punched”, which he explained is something that is done to the outside of the ignition as an easy way to start older cars that do not used a chipped key.

[37] To this point the police had no forensic evidence. They had sent a bag dropped during the McDonald’s robbery and a red toque found in the Honda with licence plate CDDR919 in for forensic analysis, but there was no DNA on the bag and the DNA on the toque was female – likely belonging to the rightful owner of the Honda.

February 5, 2018 – Robbery at 7125 Woodbine in York Region

[38] I did not hear much about this robbery as it is not one that Mr. Lira is charged with. It was considered at the time to be related and is one of the nine robberies that Det. Nasser was investigating. Det. Nasser learned that a silver or chrome handgun was used in this robbery and that both suspects wore a scarf covering the lower portion of their faces. The getaway car was reported as a light blue or greenish Honda. A Honda Civic that had been stolen from a street in North York was recovered and was believed to be the getaway vehicle.

Counts 7-9 – February 12, 2018 – Robbery at the Bank of Montreal at 57 Provost Drive

[39] Det. Nasser received information on February 13, 2018 about a robbery that had occurred a day earlier at a Bank of Montreal (“BMO”) at 57 Provost Drive. The robbery involved two male suspects, both wearing a 3-hole balaclava. Suspect #1 had a silver or chrome handgun and Suspect #2 was carrying a multi-coloured reusable shopping bag from Metro.

[40] A witness saw the suspects getting into a blue, older-model Honda with licence plate ARZY313, which was recovered in a Green P parking lot within a few hundred metres of the robbery on the same day. This vehicle had been reported stolen from 361 Ridelle Avenue on February 12, 2018, a few days after the owner last saw it on February 7, 2018. Det. Nasser explained, based on photographs of the stolen vehicle, that the ignition had been punched.

[41] Det. Nasser pointed out that surveillance video from the BMO at approximately 4:51 p.m. shows Suspect #1 holding the handgun in his right hand. This time, instead of tilting the gun inwards and down, he was tilting it outwards and down. Det. Nasser noted that the hammer of the handgun showed that it was ready to fire and the black rectangular marking that can be seen on the side of gun is consistent with what can be seen on the surveillance video from the RBC of the robbery on January 29, 2018.

[42] Det. Nasser also testified that one can tell from the footage that Suspect #1 has longer hair that is tied back in a ponytail. He believed Suspect #1’s hair was braided, given how it was tied in a thick bun at the back of his head. Det. Nasser also pointed to what he referred to as distinct bumps or peaks and valleys that can be seen across the top of the balaclava worn by Suspect #1, which he believed was consistent with three cornrows. Det. Nasser denied the suggestion that he was seeing seams in the balaclava itself. He explained that he believed these were cornrows because of the piece of hair that can be seen in one of the stills sticking up at the top of the bun at a weird angle. He believed that this piece of hair would not stay up like that if the hair were loose.

[43] Det. Nasser said that Suspect #1 had a plastic bag in his hand, but he did not think he used it. Det. Nasser believed that Suspect #2 was likely a white male based on the colour of some of his skin that can be seen during the video when he is adjusting his mask on the way into the bank. Det. Nasser also believed that Suspect #2 is a bit heavier in build than Suspect #1.

[44] Det. Nasser testified that he believed this robbery was connected to all the earlier robberies I have referred to because of the use of a stolen older-model Honda, the fact that there were two suspects, and the fact Suspect #1 wore a 3-hole balaclava.

[45] By this time, with the exception of one or two robberies, Det. Nasser was fairly certain that the suspects were using stolen older-model Hondas as getaway cars. The police had not yet found any forensic evidence that could help identify the suspects and it had become clear to Det. Nasser that had he had to go “out of the norm” to solve these crimes. He testified that a number of Hondas were stolen from 13 Division and he wanted to be proactive and investigate them. He was looking at stolen Hondas with model years from the early 1990s to the early 2000s, as these vehicles could be stolen by punching the ignition. He did not make any official request – he just checked regularly on the Intergraph Computer-Assisted Dispatch system. Det. Nasser also went to 361 Ridelle Avenue and asked for surveillance video from the property manager, hoping to see the theft of the vehicle. There was one way in and out of the underground parking lot and he watched three days of video to see the car after the date the owner last saw it, February 7, 2018, but did not see the car leaving the parking lot.

February 14, 2018 – Information About a Honda Stolen from 655 Briar Hill Avenue

[46] On February 14, 2018, Det. Nasser received a radio call that a Honda Civic with licence plate AHWK412 was stolen from 655 Briar Hill Avenue. There was also damage done to lobby of the building. Det. Nasser went to the building to speak to the officers investigating this theft and was told that three males had been seen stealing the car and driving around the building. Det. Nasser asked Forensic Identification Services (“FIS”) to attend the building and check for fingerprints on surfaces the suspects were believed to have touched with their bare hands. He was also given surveillance video from inside the building, which showed the three males going through the building. There was one clear image of the face of one of the men going up the stairs; Det. Nasser sent this still to FIS on February 15, 2018, although he had no reason to believe these unidentified suspects were involved in the robberies he was investigating.

Counts 11-13 – February 14, 2018 – Robbery at the CIBC at 3420 Finch Avenue East

[47] On February 14, 2018, Det. Nasser received information about a robbery at a CIBC at 3420 Finch Avenue East that had occurred earlier that day, around 3:45 p.m. Two males had entered the bank, both wearing a 3-hole balaclava. Suspect #1 had a silver handgun in his right hand and entered the bank first. Suspect #2 came in after him and was carrying a multi-coloured reusable Metro bag that Det. Nasser believed looked the same as the one seen in the robbery of the BMO on February 12, 2018.

[48] In the video surveillance, Det. Nasser saw Suspect #2 put something in the door to keep it from closing. This item was left behind and turned out to be a sling or sleeve for a broken arm. Det. Nasser also observed from the video surveillance that Suspect #1 was holding the gun pronated – tilted to the side and down – and he was giving instructions in what appeared to be crowd control while Suspect #2 came into the bank and collected the stolen items.

[49] Witnesses saw the suspects getting into a green, older-model Honda, but did not get the licence plate. As it leaves the area, the front driver-side panel and rear part of the car can be seen in the surveillance video through the front doors of the bank. Det. Nasser was able to identify the vehicle from the video as a green Honda Civic made between 1997 and 2002. He was certain of this based on his experience in surveillance and from knowing the shape of the vehicle because he has owned multiple Hondas. There is no question that Det. Nasser is correct in his opinion of the make of this vehicle when the images are compared to photographs of other Honda Civics recovered by police during the investigation of these robberies.

[50] On February 16, 2018, Det. Nasser arranged for FIS to analyze the sling or sleeve left in the door of the bank in the hope of getting a DNA profile. He did not get the results until after March 1, 2018, and no DNA was found on the sleeve.

[51] Around this time, Det. Nasser testified that he started running “wild card searches” on Versadex for Hondas with model years from the early 1990s to the 2000s that had been reported stolen anywhere in the city of Toronto.

February 20, 2018 – Results from Facial Recognition

[52] On February 20, 2018, Det. Nasser was advised that one of the males allegedly involved in the theft of the Honda with license plate AHWK412 from Briar Hill Avenue had been identified through facial recognition software as Emerson Valdez.

Counts 15-17 – February 22, 2018 – Robbery at the Shoppers Drug Mart at 51 Underhill Drive

[53] Det. Nasser received information about a February 22, 2018 robbery at an SDM at 51 Underhill Drive the day after it occurred. He was told that the two male suspects were both wearing a 3-hole balaclava. Suspect #1 had a silver or chrome handgun in his right hand and Suspect #2 was carrying a reusable bag. Based on the stills, Det. Nasser described this as a grey duffle bag. Det. Nasser observed from the surveillance video that Suspect #1 was more in charge of crowd control. However, he also noticed that that this was one of the few times when Suspect #1 also went behind the counter. This was also the first time that Det. Nasser saw Suspect #1 use a bag during a robbery, although, as already stated, Det. Nasser had seen Suspect #1 with a bag in his possession before. Det. Nasser pointed out that at times during the robbery, Suspect #1 was holding the gun in a tilted manner.

[54] Det. Nasser testified that in the video surveillance, the manager of the SDM, Henry Kuzniak, can be seen by the main entrance observing the suspects when they leave. Det. Nasser also learned that Mr. Kuzniak reported to officers on that day that he saw the suspects get into a gold or beige sedan with licence plate AJHJ014.

[55] Det. Nasser testified that officers checked the licence plate AJHJ014 on the day of the robbery and discovered that it was connected to a black SUV with a registered owner at an address in Scarborough. On the same day, a uniformed offer checked the Scarborough address; the SUV was there with the same plates still attached. Det. Nasser therefore believed that the black SUV was not the vehicle involved in this robbery and that the plates had not been stolen and put onto a different vehicle. He disagreed with the suggestion that the licence plates could have been removed from the black SUV and then put back on by the time the officer checked the car. He agreed this was possible but testified that he had never seen this happen before and did not believe it happened in this case.

[56] Det. Nasser did not attend at the SDM on the day of the robbery but testified that he went there to pick up the surveillance video the next day, February 23, 2018. According to Det. Nasser, when he walked into the SDM and identified himself, staff brought the manager, Mr. Kuzniak, to him. Det. Nasser was not looking for the manager – he was looking for the video. Mr. Kuzniak introduced himself and walked Det. Nasser over to the lady who had the video. In that time, they had a brief conversation. At this point, Det. Nasser knew Mr. Kuzniak had given police a licence plate number that was incorrect. According to Det. Nasser, Mr. Kuzniak told him that he was there at the time of the robbery and saw the car. He said he was not great with cars but if he saw it again or if he were shown a picture he could say: “that’s the car”. He told Det. Nasser that the car was gold or beige and he thought it might be a Toyota. Det. Nasser did not take this conversation to be another statement from Mr. Kuzniak. He did not ask Mr. Kuzniak any questions. Mr. Kuzniak was just very eager to help and, according to Det. Nasser, gave the description of the car that I have already set out.

[57] When asked by Ms. Batorska, Det. Nasser said that he has never read the witness statement of Mr. Kuzniak. In cross-examination, he testified that he did not review all the witness statements and did not note which ones he did review. He remembered the names of a number of witnesses, which he stated, and said they stood out in his mind. Those names did not include Mr. Kuzniak.

[58] In cross-examination, Det. Nasser testified that he stated in his notes that he reviewed the “Go,” a reference to the occurrence statement, which includes officers’ notes with respect to the February 22, 2018 robbery. He also confirmed, as stated in his notes, that he reviewed witness statements, although his notes do not identify which ones. When asked by Ms. Casey if he read Mr. Kuzniak’s statement, Det. Nasser testified that he could not definitively recall reviewing it and that it did not “jump out at me”. He did not know if he reviewed this one because he spoke to Mr. Kuzniak in person the day after the robbery. When Ms. Casey suggested to Det. Nasser that Mr. Kuzniak’s statement would have been the most obvious one to read, he agreed that it would be reasonable to believe that. However, with the other witnesses he “kinda remembered specifically their name”, and he repeated that he did not recall reviewing Mr. Kuzniak’s statement in detail. When Ms. Casey put to Det. Nasser that before he spoke to Mr. Kuzniak, he knew Mr. Kuzniak had described the vehicle as blue or light blue and like a sports car, similar to a Mazda Miata, Det. Nasser expressed surprise. He testified that he did not know that, that it would have been “good to know”, and that, when he spoke to Mr. Kuzniak in person, this was “absolutely not the description he gave me”.

[59] In cross-examination, Det. Nasser said the documents that best reflect the information he had at the time of the decision to arrest Mr. Lira are his handwritten notes and printouts of the occurrence statements, which are different than a typical two-page occurrence report. These statements gave Det. Nasser access to everything, including officer notes, witness statements, surveillance videos, and stills. Det. Nasser testified that although he had the witness statements, he could not say he read them all. He read important ones where witnesses saw the suspects getting into cars. He did not make a note of the ones he read, although when he testified, he listed a few he recalled reading. Det. Nasser stated that if he reviewed officers’ notes for a particular robbery, he would have looked at all the notes.

[60] I heard from three witnesses to this robbery, including Mr. Kuzniak. He testified that he was at the back of the store at the time of the robbery, unloading a truck and moving merchandise into the store. He was called and told there was a robbery, and he went into a side entrance to look through an opening. He saw the suspects behind the pharmacy counter. They had their backs to him, so they did not see him. When they ran out, he ran out after them.

[61] Mr. Kuzniak testified that the car the suspects ran to was just outside the entrance, parked in front of the store and facing the same direction as a black police car in the photograph of the front of the SDM that he was shown. The car was parked parallel to the curb so that Mr. Kuzniak could see straight into the driver’s side. The suspects were still wearing masks and were very intent, looking forward and at each other. Mr. Kuzniak started walking along the sidewalk towards the back of the car so he could look at the rear licence plate. When he turned around, he focused on getting the licence plate, as he knew this was the most important thing. Mr. Kuzniak testified that he wrote the licence plate number on the palm of his hand with a pen as AJHJ014.

[62] In his examination in chief, Mr. Kuzniak testified that the car was low to the ground, a “smallish vehicle”, and blue in color. He said that he had described it as a Miata, which I took to mean that this is what he told the officers at the time he gave his statement. But he went on to testify that it could have been a Corolla or “something like that”, that it was a small type of vehicle that was “not very big at all”, and that it was “a sub-compact car that I saw”. It had four doors. In cross-examination, Mr. Kuzniak denied that the vehicle was gold.

[63] Mr. Kuzniak provided a statement to police and, sometime after that, spoke to other officers. He said that there were “so many at different times”. He testified that, as he started thinking more about what he saw, he told the officers later that he remembered seeing a white stripe going down the back hood of the car, from the windshield to the licence plate on the trunk, which was about 18 inches wide.

[64] In cross-examination, Mr. Kuzniak testified that he spoke to multiple officers and that he could not remember speaking to officers other than on the day of the robbery. When asked if he remembered speaking to an officer in plainclothes the following day, Mr. Kuzniak testified that he could not honestly say that he did. He was not asked if he remembered providing the video to a police officer on the day after the robbery. I wonder if that might have refreshed his memory.

[65] As for his knowledge of cars, Mr. Kuzniak testified that it is quite good; he has gone to car shows in the past, has friends with “souped up cars”, and could tell the difference between a Chevrolet and a Pontiac Parisienne “in those days”. He went on to state that his knowledge of cars was “ok”; not fantastic, but good. Mr. Kuzniak testified that he could identify the more common cars on the street. When asked if he could tell the difference between a Honda, a Corolla, a Prius, and a Miata, he responded that he could definitely identify a Miata because it is quite low to the ground, rounded on the sides and does not really have a rear bumper. As for the other makes, Mr. Kuzniak testified that so long as the symbol of the car is there, such as the “H” for Honda, then it is very easy. I note that he did not say whether he saw the symbol for the make of the car the suspects went into. When asked if it would surprise him to learn that an officer said that he had told him the following day that the car was gold and that he did not know anything about cars, Mr. Kuzniak testified that he would not change his testimony from one day to the next and agreed that this was not possible. He volunteered, however, that the officer might have thought he was talking about the stripe on the back of the car and there was a misinterpretation; he might have said that the stripe was gold, but he believes it was white. He said that maybe the officer thought he meant that the car was gold, but it was definitely not gold.

[66] Kaylee Anstey was almost 16 when she testified, so I presume she was almost 13 at the time of the robbery. Ms. Anstey was on the sidewalk outside the SDM at the time of the robbery and testified that she saw two people carrying shopping bags and wearing ski masks over their faces run out of the store to a car parked out front. She remembers that it was nighttime. She described where she was standing on the sidewalk – about ten steps from the car – and stated that there was nothing obstructing her view. She was firm that the car was a “beige/gold colour”. When asked if it was a sedan, Ms. Anstey said she was not good with cars, but she thought it had four doors. She went on to describe something black on the front of the car by the headlights, which looked maybe like black tape. It was just on one side. She could not remember which, but said it was no bigger than the headlight. When asked by Ms. Batorska which way the car was facing, Ms. Anstey testified that it was facing away from her, but she could still see the black area on the front side of the car.

[67] In cross-examination, Ms. Casey put to Ms. Anstey that she had said she was looking at the trunk of the car. Ms. Anstey agreed. She stated that she could see what she believed was the whole passenger side and back of the car. She could not see the full front of the car and could not tell if the black tape went fully around the car. She did not remember seeing black tape on the back of the car. Ms. Anstey disagreed with the suggestions that the car was not gold but rather blue or bluish, or that it was blue with a gold stripe across the trunk.

[68] Stephanie Deepnarine was inside the SDM during the robbery and encountered the suspects in the aisle. She testified that she noticed a car parked right in front of the SDM, parallel to the sidewalk, as she went inside. The driver and passenger doors were open, which drew her attention to the car. She recalled it as a Toyota but added that she was not too sure what kind of car it was. She testified that the front of the car was facing her, like the black police car in the photo of the front of the SDM she was shown. She could not recall the colour of the car at first. After her memory was refreshed by the statement she gave police that night, she testified that the car was gold. In cross-examination, she disagreed with the suggestion that the car was actually blue. Ms. Deepnarine needs contacts for distance vision that she was not wearing at this time. However, she testified that she does not need to wear contacts or glasses to drive; without them, her vision is a little blurry, but only from far away.

[69] Det. Nasser believed that this robbery was connected to the earlier robberies I have referred to because he saw a similar pattern: there were two suspects, each wearing a 3-hole balaclava, and Suspect #1 held the silver handgun in a tilted manner. Although no reusable bag was used, and descriptions of the getaway vehicle were inconclusive, Det. Nasser testified that he believed the suspects in this robbery were the same two suspects from the previous robberies. No evidence of forensic value was found for this robbery.

Follow-Up Investigation

[70] Det. Nasser still had no forensic evidence to assist in the investigation of these robberies. He decided to identify Mr. Valdez’s associates, people he believed were stealing vehicles. Through police databases and officers familiar with Mr. Valdez, he was given the names of the Saludares brothers, John and Lurk. Although he believed two people were using stolen older-model Hondas in the robberies, Det. Nasser testified that he did not think Mr. Valdez and his associates were involved as they were black, did not have long hair or cornrows, and their builds did not match (Lurk Saludares is very thin and Mr. Valdez is quite short). Nor did they have criminal records for robbery or possession of firearms; they were just guys stealing cars. Det. Nasser could not say that they stole the vehicles used in the robberies. Their lack of record for robbery was important to Det. Nasser because the suspects he was looking for were taking a lot of steps to conceal their identities and prevent being caught, including wearing masks and gloves, changing clothing for each robbery, and changing stolen vehicles almost every time.

[71] On February 25, 2018, the vehicle stolen from Briar Hill Avenue, which had licence plate AWHK412 when it was stolen, was recovered with a different plate – CACA728. Det. Nasser knew it was the same vehicle from the vehicle identification number. Identity documents (“ID”) and property in the name of E. Valdez and ID of a female were found inside. Although Det. Nasser believed Mr. Valdez stole the vehicle, in his view it was sloppy to leave ID in the car and this did not square with what he had seen of the two robbery suspects.

[72] On February 26, 2018, Det. Nasser planned to investigate Mr. Valdez and his associates to see where it would lead. On this date, DC Daniels learned that a silver, two-door, 1998 Honda Civic, licence plate BWDK521, had been stolen on February 23, 2018 from 131 Lyon Court.

[73] Det. Nasser asked Mobile Support Services (“MSS”) to surreptitiously follow Mr. Valdez and his associates to photograph and identify them and their addresses. He gave MSS licence plate numbers and addresses of interest, as well as photographs and images of the robbery suspects and Mr. Valdez. MSS was just to do surveillance and someone from the HUS was always with them.

[74] By February 27, 2018, another licence plate of interest – AWNA544 – was identified and associated with a vehicle stolen in this period. MSS also came up with a list of addresses of interest based on their surveillance, including 3888 and 3905 Bathurst Street. MSS had followed the vehicle with licence plate AWNA544 all day on February 27, 2018 until midnight, when the vehicle was parked at 3905 Bathurst Street. Det. Nasser was there, along with DC Daniels and possibly Det. Miron, also from hold-up. They were also watching this vehicle and continued to do so after MSS left the scene. When the vehicle left this address, Det. Nasser and his officers attempted to follow, but they lost it. They decided to check other addresses for the vehicle but did not find it.

[75] Around this time, on February 27 or 28, 2018, Det. Nasser learned that a beige or gold 2000 Honda Civic with license plate AYHJ014 was allegedly stolen on Friday, February 19, 2018, and reported stolen on February 23, 2018. He realized this plate number was very similar to the one given by Mr. Kuzniak on February 22, 2018 and the car fit the suspects’ pattern. He believed Mr. Kuzniak had said car was beige or gold. It also made sense to Det. Nasser that this was the getaway vehicle used in the SDM robbery as it was stolen from 4455 Bathurst Street, not far from the SDM. As a result, this plate number was also given to MSS. I note that the licence plate was off by one letter from what Mr. Kuzniak had reported.

Counts 16-19 – February 28, 2018 – Robbery at the Sheppard Warden Pharmacy at 3410 Sheppard Avenue East

[76] On February 28, 2018, MSS set up in the area of 3905 Bathurst Street. At approximately 3:50 p.m., while checking the area for any vehicles of interest, DC So located the Honda with licence plate AYHJ014 in the rear parking lot of 3886/3888 Bathurst Street. The car was empty. On his way back to work at 3:48 p.m. on February 28, 2018, Det. Nasser heard on the police radio that DC So from MSS had located AYHJ0I4, which Det. Nasser believed was used in the February 22, 2018 robbery at the SDM at 51 Underhill Drive. MSS officers were going to continue to watch this vehicle.

[77] At approximately 3:55 p.m., DC Shreeram began watching the Honda with licence plate AYHJ014. He observed a man approach. The man was seen at the trunk area, walking around the car, standing by the driver’s side door, and generally in the immediate vicinity of the vehicle. DC Shreeram continued to observe the man around the Honda from 3:55-4:13 p.m. At approximately 4:15 p.m., he and another male were observed by DC Shreeram walking east between 3886 and 3884 Bathurst Street, each carrying a red bag.

[78] At 4:09 p.m., Det. Nasser heard on the police radio that MSS had last seen the Saludares brothers in the area of 3905-3808 Bathurst Street and that this is where they set up to see if vehicle from day before – AWNA544 – would return. Det. Nasser did not know if Mr. Valdez was even there, but at this point MSS was watching Mr. Valdez and the Saludares brothers. At no point had Mr. Lira been seen with them.

[79] At about this time, Det. Palermo, who was attending at the scene, told Det. Nassar about the robbery at the Sheppard Warden Pharmacy at 3410 Sheppard Avenue East that had occurred about an hour earlier. It is agreed that this robbery occurred between 3:10 and 3:13 p.m., when a 911 call was made. Det. Palermo informed Det. Nasser of this robbery because there were two suspects, one of whom had what was likely an SKS rifle. Det. Nasser was not given a description of the suspects because Det. Palermo only had witness accounts and was having trouble with the surveillance video of the robbery.

[80] Det. Nasser testified that at 4:34 p.m., he heard on the police radio that MSS saw two males come to the vehicle with licence plate AYHJ014 pulling suitcases and carrying reusable shopping bags. He was then told that this vehicle was moving. The two men parked the vehicle at 490 Wilson Avenue and exited. This address is within walking distance of Wilson Subway Station and the two males were seen by MSS officers, each pulling a suitcase and one carrying a bag, travelling on foot to the station.

[81] I heard from various MSS officers who followed the two males into the Wilson Subway Station and onto the subway platform. They took a southbound train two stops to Lawrence West Station, exited the subway, and walked along Lawrence Avenue West to 22 Varna Drive. This is a two to three story community housing building. The two males were seen entering 22 Varna Drive.

[82] Det. Nasser spoke to Det. McIntosh from MSS and asked for the pictures he took of the two males. When Det. Nasser saw these pictures, he recognized one of the men as Mr. Lira. He did not recognize the man Mr. Lira was with. Det. Nasser explained that he believed this was Mr. Lira because very early on in the investigation of these robberies, sometime in January 2018 when they did not have too many leads, Det. Sgt. Di Passa told Det. Nasser that he had dealt with an Ivan Lira when he was with hold-up and that Mr. Lira had done similar robberies using older Hondas.[^1] Det. Nasser then looked at some images of Mr. Lira taken at the time of his arrest in December 2010. At that time, DC Daniels had also checked what was believed to be Mr. Lira’s address, Unit #3, 55 Faywood Boulevard (“Faywood”), for stolen vehicles. None were found.

[83] The fact that Mr. Lira had parked the vehicle with licence plate AYHJ014 at 490 Wilson Avenue became important because Det. Nasser realized this was within 100 metres of Faywood. Det. Nasser also testified that he saw from the MSS photos that Mr. Lira was wearing glasses and his hair was braided. He believed that the pattern of Mr. Lira’s braided hair was consistent with what he saw in the surveillance video of the February 12, 2018 BMO robbery. This is the first time Mr. Lira became a person of interest in this robbery investigation. Det. Nasser confirmed that there is no mention of Mr. Lira in his notes until February 28, 2018.

[84] Det. Nasser testified that, given that the vehicle Mr. Lira had been seen in was stolen, he and the other male were arrestable for being in a stolen vehicle. He said that he regrets that he did not arrest them for possession of a stolen vehicle, but he was very focused on the robbery aspect of the investigation.

[85] Det. Nasser testified that in a second conversation with Det. Palermo later on February 28, 2018, well after the two men went inside 22 Varna Drive, he found out that the suspects in the robbery of the pharmacy earlier that day had used black and red Metro bags and a rifle. That was really important to him and tied the suspects into the MSS surveillance where two males can be seen carrying black and red Metro bags. In his mind it also tied them to the two prior robberies where the suspects were seen carrying multi-coloured Metro bags.

[86] When, much later that day, Det. Nasser saw some of the photographs and video taken by MSS officers of the two males they were watching, he noticed that they were each carrying red and black Metro bags and were later seen pulling black suitcases. Det. Nasser testified that the builds of the men in the images, one of whom he believed to be Mr. Lira, were consistent with those of the two males who had robbed the pharmacy earlier that day. He believed Mr. Lira was the suspect referred to as Suspect #1.

[87] Det. Nasser testified that if he had had access to the surveillance videos and stills from the robbery of the pharmacy earlier, he would have made the decision to arrest the men before they went into 22 Varna Drive. Det. Nasser testified that, by this time, a number of specific things from the prior robberies stood out. The fact that Mr. Lira’s hair was long and braided and tied back into a bun was similar to the hairstyle of Suspect #1 and, in particular, Det. Nasser’s belief based on the video surveillance and stills from the February 12, 2018 robbery of the BMO that Suspect #1’s long hair was braided. This time, Suspect #1 had a different mask on but Suspect #2 was wearing a 3-hole balaclava. Suspect #1 was doing crowd control while Suspect #2 was collecting stolen items and putting them into the Metro bag. Det. Nasser testified that even if Mr. Lira had left 22 Varna Drive during the night, it would not have made a difference to his grounds for arrest. He could have come and gone five times and it would have made no difference, as all his grounds for arrest were established once Mr. Lira entered 22 Varna Drive.

[88] Det. Nasser testified that, although no witnesses observed a vehicle during the robbery of the pharmacy earlier that day, he believed the beige Honda with licence place AYHJ014, which he also thought was used in the robbery of the SDM on February 22, 2018, was used during the robbery on February 28, 2018. He explained that he formed this belief because a very short time after the latter robbery, this vehicle was seen being operated by two males who, as they entered and exited the car, were seen carrying black and red reusable Metro bags. Det. Nasser believed these were very much consistent with the bags the two men used in the pharmacy robbery.

[89] Det. Nasser also explained from the stills from the pharmacy robbery earlier that day that, although Suspect #1 was wearing a different mask than in previous robberies, the rifle he was carrying had a curved magazine, no stock, a pistol grip, and was consistent with the long rifle used in the earlier robberies, save that the barrel was shorter and did not have the sight at the top. Det. Nasser testified that he had never seen a rifle with a barrel that short before. Since a witness had heard Suspect #1 say that something broke during the robbery of the CIBC on January 19, 2018and since, after that, a rifle was not used in these robberies until February 28, 2018, Det. Nasser inferred that the barrel of the rifle was likely cut or sawed off.

[90] Det. Nasser testified that he believed that the rifle used in the robbery on February 28, 2018 was the one used in the first three robberies. He admitted that he could not say what had broken during the January 19, 2018 robbery, but noted that the rifle was not used again until it reappeared on February 28, 2018. Det. Nasser relied on more than the fact he believes something on the rifle broke. All the other characteristics of the rifle were the same: its pistol grip, the fact there was no stock, the angle at the end of the rifle, the curved magazine, and that it was black. The only difference was that the barrel was shorter. Det. Nasser therefore believed that because something broke, the barrel was modified; either the barrel broke off or was sawed off. Whatever part of the rifle broke prevented its use in the robberies between January 19 and February 28, 2018.

[91] Det. Nasser did not seize the surveillance video from the Sheppard Warden Pharmacy, so he had not been able to verify the time stamp on the video. He testified that he believes the time on the video is wrong and that the robbery in fact took place at about 3:10 p.m.

[92] Because Det. Nasser and DC Daniels both believed Mr. Lira was arrestable, and since Mr. Lira and Suspect #2 were now inside 22 Varna Drive with MSS officers watching the building, the plan was that Det. Nasser would start typing a warrant to search 22 Varna Drive, although they did not know what apartment Mr. Lira was in or who Suspect #2 was. There was further surveillance by MSS officers at 22 Varna Drive until 11:40 p.m. that night, but police did not see either individual leave the building.

[93] At around midnight on February 28, 2018, Det. Nasser sent some of the stills of Suspect #2 to the FIU.

March 1, 2018 – The Day of Mr. Lira’s Arrest

[94] Surveillance by MSS at 22 Varna Drive resumed very early the following day, March 1, 2018, in an effort to locate the two suspects. MSS officers also continued surveillance of the car with licence plate AYHJ014 until it was seized and towed at about 3:00 a.m. on March 1, 2018. Mr. Lira and the man he was with had not been seen coming back to the vehicle.

[95] Det. Nasser received an email from the FIU at 7:15 a.m. that identified Suspect #2 as William Jason Snyder. Det. Nasser learned at 10:21 a.m. that Mr. Snyder had an association to Unit #206 in the building at 22 Varna Drive.

[96] Det. Nasser testified that he was told by Det. McIntosh’s team at MSS at about 1:00 p.m. that Mr. Lira had left 22 Varna Drive with a suitcase. This was the first time Mr. Lira was seen leaving 22 Varna Drive. He was followed by MSS officers. Det. Nasser was informed that Mr. Lira got off the subway and did not get on a train. Det. Nasser formed the belief, based on his experience and based on what Mr. Lira was doing, that Mr. Lira may have realized he was being watched by police and was using what Det. Nasser described as “counter-surveillance measures”. He was travelling on foot and using public transportation. Det. Nasser did not know where Mr. Lira was going – it was to an unknown area, not Faywood, where he was believed to live. As a result, Det. Nasser’s concern about losing Mr. Lira or the suitcase grew. DC Daniels also testified that he was concerned by the possibility that Mr. Lira had seen police and was doing some counter-surveillance and had called Mr. Snyder. He also did not know where Mr. Lira was going. As a result, Det. Nasser asked Det. McIntosh to arrest Mr. Lira when it was safe to do so.

[97] DC Daniels learned that Mr. Lira had been arrested at 2:14 p.m. and that he had been on his cell phone at the time of his arrest. DC Daniels arrived at the scene of arrest shortly afterwards. Officer Shreeram turned over the black suitcase Mr. Lira had been pulling. DC Daniels opened the case in the trunk of his car and saw the long gun on an angle inside the main compartment. In a zippered compartment at the top of the bag, he found the magazine or clip with ammunition – 17 bullets – that fit the bottom of the firearm.

[98] Det. Nasser learned that Mr. Lira had been arrested from DC Daniels, who was at the scene at the time of the arrest or shortly afterwards. There is no dispute that Mr. Lira was arrested on the subway platform at Fairview Mall at 2:14 p.m. on the afternoon of March 1, 2018. Det. Nasser also learned that what was believed to be an SKS rifle and a magazine had been recovered from the suitcase Mr. Lira was pulling.

[99] DC Daniels and Det. Nasser then discussed having the Emergency Task Force (“ETF”) go to Unit #206, 22 Varna Drive to do the entry for the arrest of Mr. Snyder. Det. Nasser believed Mr. Snyder was inside Unit #206. There was a possibility of destruction of evidence if Mr. Snyder had contacted Mr. Lira. Det. Nasser knew that a rifle had been recovered, but the silver handgun used in four of the robberies was still outstanding and possibly in the possession of Mr. Snyder, as was cash, stolen pills, and the clothing worn in the robberies. As a result, he and DC Daniels were concerned for officer safety or that someone would get rid of this firearm, given that Mr. Lira had been on his cell phone at the time of his arrest.

[100] DC Daniels testified that he learned that Mr. Snyder was arrested at 4:15 p.m. that day.

Evidence from Det. Nasser and DC Daniels as to the Grounds for the Arrest

[101] According to Det. Nasser, he formed reasonable and probable grounds for the arrest of Mr. Lira and would have directed that he be arrested on February 28, 2018, after he had the opportunity to review the video and photographs taken by MSS and the surveillance video from the Sheppard Warden Pharmacy robbery. However, by that time, Mr. Lira had entered 22 Varna Drive.

[102] At the end of his evidence in chief, Det. Nasser was asked to state his grounds for the arrest of Mr. Lira. He gave his reasons for why he believed the nine robberies I have referred to were all related, and his reasons for why he believed Mr. Lira was Suspect #1 in these robberies. He testified that his grounds to arrest Mr. Lira were as follows:

a) One or both suspects were wearing a 3-hole balaclava and this was fairly consistent in the robberies. Det. Nasser testified that a 3-hole balaclava may seem very general and agreed in cross-examination that it is not an exclusive item in any way. But he stated that when you look at different types of robberies across the city, you start to see a lot of variations in the kinds of balaclavas and masks worn; they are not all 3-hole balaclavas. There is no evidence of Mr. Lira wearing a 3-hole balaclava save for the connection Det. Nasser made between Mr. Lira’s cornrows on February 28, 2018, just before his arrest, and what he believed were cornrows under the balaclava that Suspect #1 was wearing during the robbery on February 12, 2018, based on the peaks and valleys I have already referred to.

b) Although his notes and the Information to Obtain (“ITO”) to search Faywood made no reference to Suspect #1 having cornrows, Det. Nasser insisted that this was one factor why, once he saw Mr. Lira on February 28, 2018, he believed Mr. Lira was involved in the robbery of the BMO on February 12, 2018. He explained that at the time of his arrest, Mr. Lira had thicker braids with fewer cornrows. He admitted that one can have any number of cornrows and that they can be in any pattern. He could not say if the cornrows on Mr. Lira were in a common style but testified that he usually sees more rows. In re-examination, Det. Nasser added that the images of Mr. Lira from his earlier arrest from 2010 also show his hair in cornrows.

c) The manner in which Suspect #1 held the firearm was relevant to Det. Nasser because, based on what he has learned about firearms, his experience with firearms, and what he has observed in past robberies, a person typically holds a gun straight up and down with their hand in the position used to shake someone’s hand. Numerous times in the video surveillance and stills, Det. Nasser pointed out that Suspect #1 was holding the firearm, be it the rifle or the handgun, pronated or pointing down, which was not normal in his experience observing other robberies. Mr. Lira was never seen holding a firearm and so this did not connect Mr. Lira to Suspect #1, but it was one of the reasons why Det. Nasser linked these nine robberies together.

d) Early in the investigation, a pattern of the suspects using stolen older-model Hondas emerged. The stolen Hondas were mainly from North York and a lot were stolen in 13 Division. There was no connection between any stolen Hondas and Mr. Lira until February 28, 2018, when he was seen in the vicinity of and inside the stolen Honda with licence plate AYHJ014, which Det. Nasser believed had been used in the robbery on February 28, 2018 of the Sheppard Warden Pharmacy and in the robbery of the SDM on February 22, 2018. The fact that this vehicle had been left parked the previous day at 490 Wilson Street, near Faywood, which was believed to be Mr. Lira’s residence, was also relevant to Det. Nasser.

e) Det. Nasser believed that the rifle used in the first three robberies was the same as the rifle with the shorter barrel used in the last robbery on February 28, 2018, for the reasons I have already set out. The fact that a silver handgun was used in the robberies on January 29 and February 5, 12, 14, and 22, 2018 did not disconnect these robberies in Det. Nasser’s mind for the reasons I have set out. Before the arrest of Mr. Lira, there was no evidence he was in possession of a rifle or any firearm.

f) Det. Nasser testified that another reason he linked these nine robberies was the height and weight of Suspects #1 and #2, in comparison to each other and as between the suspects in each robbery. He believed this was consistent for each of the robberies, save that Suspect #2 appeared slightly heavier than Suspect #1. As for the connection to Mr. Lira, Det. Nasser testified that the stills he saw of the two males taken by MSS on February 28, 2018 showed two people with the height and build of the two suspects in the robberies. His comparison was always between the two suspects and he relied more on what he saw in the videos than what the witnesses described.

g) Det. Nasser also saw similarities in these robberies to the robbery offences that Mr. Lira had been convicted of in the past. This was a link specific to Mr. Lira once he became a suspect.

[103] In addition, Det. Nasser testified about the reasons why he believed Mr. Lira had been involved in the robbery earlier on February 28, 2018, which included the fact that the suspects in that robbery had red and black Metro bags that looked like the ones Mr. Lira and Mr. Snyder were carrying when they were observed walking that same day, and, of course, the fact that they were in the Honda he believed was used in two robberies.

[104] Although not mentioned by Det. Nasser, the various Information Bulletins, which included information about all the robberies up to February 14, 2018, except for the robbery on February 5, 2018, corroborate Det. Nasser’s evidence that he believed these nine robberies to be committed by the same suspects. When I asked him why the robbery on February 5, 2018 was not in the Information Bulletins, he seemed surprised and could not explain it.

[105] DC Daniels also testified that he absolutely believed there were reasonable and probable grounds for the arrest of Mr. Lira. He stated that Det. Nasser received photographs from the February 28, 2018 robbery of the Sheppard Warden Pharmacy and noted that there were two male suspects, and that a long gun and one or two reusable Metro shopping bags were used in the robbery. They also knew by this time that the Honda with licence plate AYHJ014 that Mr. Lira and the other male, later identified as Mr. Snyder, were seen in was stolen, and believed it had been used in the robbery of the SDM on February 22, 2018because the licence plate was only off by one letter from the one provided by a witness. Based on photographs from MSS, they saw Mr. Lira and Mr. Snyder carrying reusable Metro bags that appeared identical to those used in the robbery on February 28, 2018. They could also see that their stature matched the stature of the suspects in that robbery. Based on these facts, DC Daniels also believed the February 28, 2018 robbery was connected to the others and that Mr. Lira was arrestable for all these robberies.

Chronology After the Arrest of Mr. Lira

[106] Mr. Lira was placed under arrest for robbery at 2:14 p.m. on March 1, 2018 by Police Constable (“PC”) Dean Smith. He immediately gave Mr. Lira his right to counsel, although not from the card with the standard wording, as he did not have it with him. When PC Smith asked Mr. Lira if he understood that he could speak to a lawyer as soon as possible, he answered: “Yes”. PC Smith did not tell Mr. Lira that he had the right to speak to duty counsel. I understand from the evidence of DC Daniels that Mr. Lira told the transport officers that he wished to speak to a lawyer, but PC Smith did not give that evidence. I will assume this to be the case, however, for the purpose of the Defence application.

[107] PC Smith began transporting Mr. Lira to 13 Division at 2:46 p.m. He arrived there at 3:05 p.m. DC Daniels testified that he was still driving to 13 Division at 2:25 p.m., but I assume he arrived at 13 Division before Det. Nasser, who did not arrive there until 4:10 p.m.

[108] At 3:24 p.m., Mr. Lira was paraded before Sgt. Sinclair. Although it is difficult to hear, counsel agree that during his booking, when given the right to counsel, Mr. Lira stated: “I don’t know if I can get a hold of her, but I’ll try”. There is no evidence as to why Mr. Lira did not think he could reach his counsel of choice at this time.

[109] A three-level search of Mr. Lira was authorized. After it was complete, at 3:37 p.m., Mr. Lira was placed in a Youth Bureau room next to DC Daniels and under his supervision.

[110] DC Daniels testified that he knew that Mr. Lira had asked to speak to counsel from the transport officers. He and Det. Nasser discussed the matter and decided that Mr. Lira would have no phone calls until they determined if they were going to get a search warrant for Faywood. Det. Nasser testified that he discussed this with DC Daniels, but that the ultimate decision was made by DC Daniels. This may be because there is no dispute that it was DC Daniels who advised the officers at the station that no phone access was to be given to Mr. Lira pending the execution of a search warrant at Faywood.

[111] DC Daniels testified that a decision was made to suspend Mr. Lira’s call to counsel because they were determining whether to get a search warrant for Faywood, which was believed to be Mr. Lira’s residence. He said that this decision was very case-specific and based on the fact that the defendant was Mr. Lira. DC Daniels knew that at the time of his arrest, Mr. Lira was on his cell phone. Given his criminal history and the fact he had been convicted of robbery before, they believed he would know what to do. They believed Mr. Lira had thought about different things to do in these robberies and had planned things such as the use of a stolen car, changing clothing, except for the face masks, and getting rid of clothing. Mr. Lira was arrested by the HUS before and a search warrant had been executed at his place and clothing seized. He would therefore know that if he were arrested there would likely be a search warrant. DC Daniels testified that if Mr. Lira could make a call, he would know to get rid of evidence. If a phone call was made, given the silver handgun was outstanding, it was possible that there would be a loss of evidence or that the police would go to the door and someone, knowing police were coming, might have a firearm. It was an obvious officer safety issue.

[112] DC Daniels testified that learning at approximately 4:15 p.m. that Mr. Snyder had also been arrested did not alleviate his concerns because they were specific to Mr. Lira. DC Daniels testified that if Mr. Lira was allowed to speak to counsel, he believed the police would have no ability to stop counsel from talking to Mr. Lira’s family members to get ready for bail the next day or even just to let them know of the arrest. It was his position that Mr. Lira would be able to call counsel once his residence was secure and the search was conducted. At that point, the evidence would be secure and the officer safety issue would be taken care of.

[113] Det. Nasser also stated his concern about Mr. Lira’s criminal record for robberies, which meant he had been arrested in the past and was likely savvy enough to know there would be a search warrant executed. He believed Mr. Lira would want to find a way to destroy evidence. There was also a question about Mr. Lira’s address. With Mr. Snyder, police were sure he lived at Unit #206, 22 Varna Drive, as that is where he was arrested, and that address was secure. Det. Nasser testified that had the roles of Mr. Snyder and Mr. Lira been switched, he would not have suspended Mr. Lira’s right to counsel. The fact that both were in custody did not alleviate his concerns.

[114] Det. Nasser and DC Daniels decided to have ETF officers enter Unit #206, 22 Varna Drive while officers from 32 Division MCU stood by to freeze the residence until a search warrant was issued and completed. They knew Mr. Lira had been seen talking on his cell phone just before his arrest, but they did not know who he was talking to. They asked ETF to breach the door because they were concerned about an outstanding person – Mr. Snyder – who was possibly in the apartment, an outstanding firearm, and other evidence of things taken during any of the robberies.

[115] They had the same concerns about Faywood, given there was an outstanding firearm and possibly other evidence there. It was Det. Nasser’s understanding that there were other occupants at Faywood, although he did not know who.

[116] DC Daniels testified that he and Det. Nasser might have discussed having ETF go in and freeze Faywood, but they did not have ETF do so. He could not recall if this was discussed but believed that they would have considered this. DC Daniels did not know if Det. Miron was standing by at Faywood; Det. Nasser was taking care of that. DC Daniels believed he knew that Mr. Snyder had access to counsel at 6:25 p.m. because his premises were frozen, anyone who had been in his unit had been removed, and they had Mr. Snyder in custody. This meant they no longer had any concerns about the destruction of evidence.

[117] DC Daniels admitted that it would have been difficult to freeze Faywood, but they probably could have done so. They would have had to find out if ETF was available and ETF would have had to go in. DC Daniels and Det. Nasser would have had to find another MCU unit to freeze Faywood and stand by until the search warrant was executed, as the only MCU crew they had in 32 Division was busy at 22 Varna Drive. I understood this would be necessary as ETF officers are only responsible for the entry.

[118] DC Daniels testified that he could not say it would have been possible to do this, as they had not talked to ETF and did not know what they had going on at the time, nor had they spoken to other officers about this. They would have needed a minimum of four officers in addition to ETF. DC Daniels admitted that it was an option they could have explored but one that would have been difficult and would have put any other residents in Faywood outside for whatever time they were holding it. It is admitted that when officers attended later at Faywood to execute the search warrant, Mr. Lira’s mother and sister were in the apartment. DC Daniels admitted that this could have happened at 22 Varna Drive, as well, if the other person associated with that address was in the unit at the time ETF entered. He also admitted that being able to have ETF enter Faywood and other officers freeze it until the search warrant was prepared would have dealt with their concerns.

[119] Det. Nasser did not recall a discussion about having an officer attend Faywood to remove the occupants and freeze the home. He did admit that having the occupants of Faywood removed and the address frozen would have alleviated his concerns, and that Mr. Snyder got access to counsel because his apartment was frozen, and all occupants were removed. He added, however, that Mr. Snyder had no history of robberies. Det. Nasser was not asked whether he considered this or if it would have been possible to freeze Faywood.

[120] Det. Nasser spoke to DC Daniels sometime between 4:00-5:00 p.m. They reviewed the evidence that they had. Det. Nasser testified that a search warrant was always in the back of his mind, but that decision was not finalized until the day Mr. Lira was arrested. Det. Nasser testified that he and DC Daniels decided that he would prepare an ITO to get search warrants for Faywood and Unit #206, 22 Varna Drive. However, he testified that first he needed to confirm that these were in fact the residences of Mr. Lira and Mr. Snyder. He asked Det. Miron to attend 500 Gilbert Avenue to confirm the address for Mr. Snyder and to attend at Faywood to confirm the address for Mr. Lira. At 5:00 p.m., Det. Miron attended at 500 Gilbert Avenue. At 5:10 p.m., he departed for Faywood. At 5:40 p.m., Det. Miron was redirected to 8 Vinci Crescent to speak with the property manager for Faywood, who advised him that the tenant on the lease for Unit #3 was Maria Lainez and she had a roommate, possibly her son, named Ivan Lira. He also learned that Mr. Lira was listed as a resident on the lease for Unit #3. Det. Miron advised Det. Nasser of this at 5:48 p.m.

[121] At 5:50 p.m., Mr. Snyder was placed in a room next to Mr. Lira. Mr. Lira was heard speaking through the wall to Mr. Snyder, so Mr. Lira was moved to another room down the hall.

[122] DC Daniels testified that he received information from Det. Nasser that a search warrant would be sought for Faywood just before 6:00 p.m. He went to the holding room where Mr. Lira was and left the door open. He told Mr. Lira what he was charged with and advised him that he would not be able to make a phone call because they were worried about the destruction of evidence at his residence. DC Daniels did not know if Mr. Lira had been told this by any other officer earlier. When he told him this, Mr. Lira did not say anything in response.

[123] Det. Nasser had no dealings with either Mr. Lira or Mr. Snyder at 13 Division. He started typing the ITO for the search warrants at around 5:45 p.m. He testified that the drafting of the ITO was rushed because, unlike other cases, he had not kept a running log of notes with respect to the robberies on a draft ITO. He finished the ITO and sent it off at about 11:00 p.m. The search warrant was approved at 12:35 a.m. on March 2, 2018.

[124] It is admitted that on March 2, 2018, at 12:40 a.m., Det. Palermo received information from Det. Nasser that a search warrant had been authorized for Faywood. Det. Palermo and two other officers from the MCU from 32 Division were detailed to execute the warrant. The officers arrived at Faywood at 1:15 a.m. in the company of an FIS officer and a uniformed officer. At 1:20 a.m., the officers knocked on the door of Unit #3. Mr. Lira's mother answered. His sister was also present in the apartment. After speaking with Mr. Lira’s mother, the officers determined that the warrant would not be executed at the address. They exited the premises at 1:30 a.m.

[125] DC Daniels was told at 1:35 a.m. on March 2, 2018 that the search warrant at Faywood had been executed. Five minutes later, he spoke to Mr. Lira and asked him who his lawyer was. Mr. Lira told him it was Melody Izadi but that she would not be awake. DC Daniels asked him if he wanted to contact duty counsel and Mr. Lira said no. DC Daniels then offered to leave a message, to which Mr. Lira said: “No man – can you get me her number?”

[126] At 2:05 a.m., Mr. Lira was placed in the cells. By this time, DC Daniels had the number for Ms. Izadi from the Law Society website and asked Mr. Lira if he wanted him to call her. This time he said yes, so DC Daniels called the number at 2:11 a.m. He spoke to someone from an answering service and was put on hold for six minutes. No one came back on the line, so he hung up. He called the number again and left a message for Ms. Izadi with the person who answered the phone, advising that Mr. Lira had been arrested and was at 13 Division and wanted to speak to counsel. DC Daniels then told Mr. Lira that he had left a message with his counsel and had left her phone number with his property. Mr. Lira did not say anything or ask to speak to another lawyer or to duty counsel. DC Daniels did not ask him again if he wanted to speak to duty counsel. DC Daniels testified that in his mind he gave Mr. Lira the earliest opportunity to speak to counsel, in that he was in the room five minutes after the search of Faywood was completed. DC Daniels went back to the hold-up office to lock up the property and had no further contact with Mr. Lira.

[127] On March 2, 2018 at 7:42 a.m., Ms. Izadi called 13 Division and was put through to Mr. Lira.

[128] It is agreed that once DC Daniels left a voicemail for Ms. Izadi at 2:18 a.m. on March 2, 2018, no other officer contacted counsel of choice or duty counsel for Mr. Lira. No officer inquired of Mr. Lira if he had spoken with counsel. No officer inquired of Mr. Lira if he wished to speak with duty counsel. No officer inquired if Mr. Lira was satisfied with his communications with counsel.

[129] There is no dispute that no one tried to take a statement from Mr. Lira at any time.

Analysis

The Relevant Legal Principles – Lawful Arrest

[130] There is no disagreement between counsel as to the relevant legal principles governing s. 9 of the Charter in these circumstances.

[131] Section 9 of the Charter provides that “everyone has the right not to be arbitrarily detained or imprisoned.” Ordinarily, the onus would be on Mr. Lira, the Charter claimant, to demonstrate on a balance of probabilities that his arrest was unlawful. However, Mr. Lira also alleges a s. 8 Charter violation related to the warrantless search that occurred after his arrest, and the Crown seeks to rebut the presumption of unreasonableness by claiming the search was lawfully conducted incident to arrest. Counsel agree that, in accordance with R. v. Gerson-Foster, 2019 ONCA 405, at para. 75, the Crown carries the burden on the overlapping ss. 8 and 9 claims and must prove that the arrest of Mr. Lira was legal. This shift in onus to the Crown is meant to avoid inconsistent outcomes on the same issue caused by conflicting burdens.

[132] Section 495(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, provides legislative authority for a police officer to arrest a person without a warrant if the officer, on reasonable grounds, believes the person has committed an indictable offence. “Reasonable grounds” has both a subjective and an objective component. As Cory J. wrote in R. v. Storrey, [1990] 1 S.C.R. 241, at para. 17:

[A]n arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds, must in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case.

[133] As Paciocco J.A. stated for the court in Gerson-Foster, at paras. 78-79, with respect to this passage from Storrey:

As this passage suggests, the relevant inquiry is into the officer's grounds and the officer's basis for those grounds. Put otherwise, an arrest can be justified only on the officer's subjective purpose for the arrest. And since it is the officer's belief that must be objectively reasonable, that arrest can be justified objectively solely on the “facts known to the officer which were available to the officer at the time he or she formed the requisite belief”.

To be clear, the “facts” relied upon by the officer need not be true. “Reasonable grounds can be based on [an officer’s] reasonable belief that certain facts exist even if it turns out that the belief is mistaken”. [Citations omitted; emphasis added.]

[134] In R. v. Lawes, 2007 ONCA 10, at para. 4, the Court of Appeal stated that, when considering the lawfulness of an arrest, “[t]he totality of the circumstances relied upon by the arresting officer will form the basis for the objective assessment. It would constitute an error in law to assess each fact or observation in isolation.” In R. v. Golub (1997), 34 O.R. (2d) 743 (C.A.), at para. 21, the Court held that, in deciding whether reasonable grounds exist, “the officer must conduct the inquiry which the circumstances reasonably permit. He must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable.”

[135] The “reasonable grounds to believe” standard was distinguished from the standard of “reasonable grounds to suspect” in R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 26-27, citing R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at para. 75. The reasonable grounds standard involves a belief in the probability of crime, as opposed to an expectation of the possibility of crime. Karakatsanis J. wrote on behalf of the Court, at paras. 26-27:

Reasonable suspicion derives its rigour from the requirement that it be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny. This scrutiny is exacting and must account for the totality of the circumstances. In Kang-Brown, Binnie J. provided the following definition of reasonable suspicion, at para. 75:

The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable’ suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.

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.

[136] At para. 47, Karakatsanis J. went on to state:

An officer’s training and experience may provide an objective experiential, as opposed to empirical, basis for grounding reasonable suspicion. However, this is not to say that hunches or intuition grounded in an officer’s experience will suffice, or that deference is owed to a police officer's view of the circumstances based on her training or experience in the field. A police officer’s educated guess must not supplant the rigorous and independent scrutiny demanded by the reasonable suspicion standard. Evidence as to the specific nature and extent of such experience and training is required so that the court may make an objective assessment of the probative link between the constellation of factors relied on by the police and criminality. [Citations omitted.]

[137] As stated in R. v. Biccum, 2012 ABCA 80, 522 A.R. 310, at para. 21, “the fact that an experienced constable has an honest subjective belief, while not conclusive, is itself some evidence that the belief is objectively reasonable.”

[138] Finally, I would add that the Court of Appeal stated in R. v. Canary, 2018 ONCA 304, at paras. 21-22, citing Chehil, at paras. 45-47, that when considering whether an officer’s subjective belief is objectively reasonable, courts look at the objectively discernible facts through the eyes of a reasonable person “with the same knowledge, training and experience as the officer”. Determining whether sufficient grounds exist to justify an exercise of police powers is not a “scientific or metaphysical exercise”, but one that calls for the application of “[c]ommon sense, flexibility, and practical everyday experience” (Citations omitted; emphasis added).

Has the Crown proven that Mr. Lira’s arrest was lawful and that, as a result, his ss. 8 and 9 Charter rights were not breached?

[139] It is the position of Mr. Lira that the Crown has not proven that his arrest was lawful. In particular, Ms. Casey says that s. 495(1)(a) of the Criminal Code requires an officer have reasonable grounds for the arrest of the specific person – here, Mr. Lira – for the offences for which he is arrested. She submits that the officers did not possess reasonable grounds in this case because there were no eyewitnesses to any of the robberies capable of identifying Mr. Lira, no scientific or forensic evidence linking him to any of the robberies, and even though he was known to him before February 28, 2018, Det. Nasser did not consider Mr. Lira a suspect until that day. Additionally, Det. Nasser had identified Mr. Valdez and his associates as potential suspects with respect to stolen cars.

[140] In considering whether there were reasonable grounds to arrest Mr. Lira, I must first assess whether Det. Nasser subjectively believed that he had reasonable grounds for the arrest. As Ms. Casey points out, a number of facts that Det. Nasser and DC Daniels relied on linked the nine robberies to each other, but those links did not connect Mr. Lira to any of the robberies. The exception is that on February 28,2018, Mr. Lira was seen in a stolen beige Honda with licence plate AYHJ014. Ms. Casey says that I should not believe Det. Nasser’s evidence that he was not aware of Mr. Kuzniak’s statement to police that the getaway vehicle he saw at the robbery of the SDM on February 22, 2018 was blue. Nor, she says, should I accept that Det. Nasser believed that the Honda used in that robbery was the stolen beige Honda. However, Ms. Casey fairly concedes that if I do conclude that Det. Nasser honestly believed the Honda with licence plate AYHJ014 was the getaway vehicle in the robbery of the SDM on February 22, 2018, then he did, in fact, have reasonable grounds, both on a subjective and objective basis, to arrest Mr. Lira.

[141] I have no difficulty accepting the evidence that Det. Nasser and DC Daniels had an honest belief that the nine robberies I have described were linked in some way and committed by the same suspects or group of suspects. This connection, and the basis for their belief, will be important to the similar fact application brought by the Crown that will be heard at the end of the Crown’s case. But this proposition was not challenged by Ms. Casey on this Charter application. I will therefore focus my decision on whether Det. Nasser and DC Daniels had reasonable grounds to believe that Mr. Lira was Suspect #1 in the robbery of the SDM on February 22, 2018 and the robbery of the Sheppard Warden Pharmacy on February 28, 2018.

[142] In considering this question, Ms. Casey submits that the primary determination I must make is whether or not I believe Det. Nasser’s evidence that on February 28, 2018, when he decided Mr. Lira should be arrested, he was not aware of Mr. Kuzniak’s statement to police that the getaway vehicle he saw in the robbery on February 22, 2018 was blue; that he honestly believed the stolen beige Honda with licence plate AYHJ014, in which Mr. Lira was seen on February 28,2018, was used by the suspects in the robbery on February 22, 2018; and that he believed Mr. Lira had committed the robbery at the Sheppard Warden Pharmacy that occurred earlier that day.

[143] In contemplating this issue, I must consider the credibility and reliability of the evidence of Det. Nasser and Mr. Kuzniak. Dealing first with Mr. Kuzniak, I found him to be a credible witness with no motive to be untruthful. He did his best to give his evidence honestly and accurately. He was firm in his evidence that the car he saw was blue and that he would not have said anything different the following day. He also disagreed with the suggestion that he would have said that he was not good with cars.

[144] I have some concerns about the reliability of Mr. Kuzniak’s evidence. He was focused on the licence plate number when he was looking at the vehicle and, despite his best efforts, clearly made at least one error. I accept the evidence of Det. Nasser that the plate number Mr. Kuzniak gave belonged to a black SUV and that those plates were not stolen for a few hours and put on another vehicle. I do not fault Mr. Kuzniak for this, but it was dark, he only had a few seconds to see the car, and, of course, he did not want to be seen by the suspects. Furthermore, I have two other witnesses, both credible, who testified that the getaway vehicle was beige/gold. The fact that Mr. Kuzniak later remembered and told police about a white stripe is not surprising, as I accept he could have remembered this detail after he gave his first statement to police. I am concerned, however, that in evidence Mr. Kuzniak volunteered that he might have said it was gold if he had another conversation with another officer. I do not know why he would have said this if he believed the stripe was white and he was so sure about the colour of the vehicle and what he told police.

[145] As for Mr. Kuzniak’s knowledge of cars, the fact that he described the getaway vehicle as a Miata or a Corolla suggests to me that he is not as familiar with them as he believes. These are both types of vehicles that are fairly common on our roadways and it seems surprising to me that there could be any confusion between the two. At trial, the evidence that Mr. Kuzniak gave on this point was not that convincing. He seemed familiar with older cars through car shows and friends but suggested that for other cars on the road he would look for the logo on the back. He did not say that he saw a logo on the getaway vehicle, even though he looked at the rear side to write down the licence plate number.

[146] Although Mr. Kuzniak did not recall speaking to a plainclothes officer on February 23, 2018, I have no reason to doubt Det. Nasser’s evidence that they had a brief conversation. The fact that Det. Nasser was in plainclothes and did not consider it a statement, and so did not take out a notebook to record questions and answers, is a possible reason why Mr. Kuzniak did not recall the conversation. He was not asked if he recalled anyone asking for the video, which might have refreshed his memory.

[147] As for Det. Nasser’s evidence, I found him to be a very credible witness as well. He was fair in testifying that all the witness statements were available to him and explained why he did not recall reviewing Mr. Kuzniak’s. Ms. Casey argues that it was the obvious statement to review and it makes no sense that Det. Nasser did not review it. She submits that he must have and is not being truthful. I do not accept that. Det. Nasser readily agreed that it was reasonable to believe that he had reviewed the statement but said simply that he did not recall doing so. There was no suggestion in his evidence at any point that he was trying to distance himself from this statement. As Ms. Batorska submits, there would have been no reason at the time for him to lie about this. All he knew was that the licence plate Mr. Kuzniak gave was wrong, and he knew this before he spoke to him. When it was finally put to Det. Nasser in cross-examination that Mr. Kuzniak had said the getaway vehicle was blue, it was clear to me by his reaction that Det. Nasser was very surprised by that information. I note that both Ms. Casey and Ms. Batorska recalled his surprise, as well.

[148] In addition, I have the evidence of DC Daniels, who also subjectively believed that there were reasonable grounds for the arrest of Mr. Lira. I have no reason to doubt his evidence in that regard.

[149] For these reasons, I find for the purpose of this Charter application that Det. Nasser honestly believed that Mr. Kuzniak had described the getaway vehicle as gold/beige. I will leave for the trial proper what colour the getaway vehicle used in the robbery on February 22, 2018 actually was. It may be that Det. Nasser misunderstood what Mr. Kuzniak had said, as Mr. Kuzniak himself suggested, or that Mr. Kuzniak gave the information that Det. Nasser testified he did. Accordingly, I find that the subjective component of the reasonable grounds to arrest requirement was met.

[150] I turn now to the objective component of the test. Ms. Casey fairly concedes that if I conclude that Det. Nasser honestly believed the stolen beige Honda with license plate AYHJ014 was, in fact, used in the robbery on February 22, 2018, then objectively he had reasonable and probable grounds to arrest Mr. Lira after learning he had been seen in the same vehicle on February 28, 2018. Nevertheless, I will go through the steps that I find support that conclusion.

[151] There is no dispute that on February 27 or 28, 2018, Det. Nasser learned that a beige or gold 2000 Honda Civic with license plate AYHJ014 was allegedly stolen on February 19, 2018 and reported stolen on February 23, 2018. He realized this plate number was off by one letter from the plate given by Mr. Kuzniak, who witnessed the robbery of the SDM on February 22, 2018. This also fit the pattern he had observed, in that it was an older Honda stolen from 13 Division, like the cars being used as getaway vehicles in most of the robberies he believed were related. As well, as I have found, Det. Nasser believed Mr. Kuzniak had said car was beige or gold. It also made sense to Det. Nasser that it was the getaway vehicle used in the SDM robbery, as it was stolen from 4455 Bathurst Street, close to the location of the SDM.

[152] As a result, this plate number was given to MSS and officers who were watching persons of interest in the theft of vehicles associated to the addresses of 3888 and 3905 Bathurst Street. On February 28, 2018, about 45 minutes after the robbery of the Sheppard Warden Pharmacy, the Honda with licence plate AYHJ014 was in the rear parking lot of 3886/3888 Bathurst Street. Mr. Lira was seen by MSS officers waiting in the vicinity of the Honda until Mr. Snyder joined him. One of the two suspects in the February 28, 2018 robbery had been carrying a red and black Metro bag during the robbery; Mr. Lira and Mr. Snyder were also observed carrying red and black Metro bags about 45-60 minutes after the robbery. I appreciate, as submitted by Ms. Casey, that there is nothing unique about this type of bag that could assist police in concluding that Mr. Lira was involved in the actual robbery, but, in my view, it was a fact that could be considered with all the others.

[153] Having reviewed the surveillance videos and stills, I find it is objectively reasonable for Det. Nasser to have believed that the build and height of Mr. Lira and Mr. Snyder were consistent with the two suspects from the February 22 and February 28, 2018 robberies. The Honda with licence plate AYHJ014 was abandoned by Mr. Lira and Mr. Snyder near Faywood, an address believed to be associated to Mr. Lira. And Mr. Lira had, in the past, been associated to robberies in which stolen Hondas were used.

[154] Ms. Casey submits that neither Mr. Lira nor the white male later identified as Mr. Snyder were dressed in clothing similar to the suspects from the February 28, 2018 robbery. In fact, the clothing worn by Mr. Lira on February 28 and March 1, 2018 was in no way like the clothing worn by Suspect #1 in any of the previous robberies, with the exception of grey sweatpants, which are obviously not unique. However, Det. Nasser believed that this fact, in combination with the use of masks and gloves, was consistent with Mr. Lira’s past robberies in that he would know to change clothing to avoid detection. I should add that this was not a case where Det. Nasser used tunnel vision to make a case against Mr. Lira after he learned of his criminal history, as he only considered him to be a suspect on February 28, 2018. Finally, Mr. Valdez and the Saludares brothers, who were involved in the theft of vehicles, were not believed to be the suspects in the robberies.

[155] As for Mr. Lira’s hairstyle on February 28, 2018, I would say it was objectively similar to the hair of one of the suspects in the February 12, 2018 robbery, which was pulled back into a bun. Det. Nasser’s belief that Mr. Lira’s hairstyle was consistent with the bumps and peaks on the top of the balaclava is more difficult. I would certainly not say that his evidence in this regard was false or unreasonable. As this will be an important issue at trial, I will leave my final consideration to that time; it does not impact my assessment of Det. Nasser’s reasonable grounds on an objective basis.

[156] Although not necessary to my decision, I would add that even if Det. Nasser was aware of Mr. Kuzniak’s evidence that the car he saw was a blue Miata, in my view the Crown would have established reasonable grounds for the arrest of Mr. Lira on both the subjective and objective grounds based on other factors Det. Nasser and DC Daniels relied on, including other witnesses who reported the car was gold/beige and the discovery of the stolen beige Honda, which licence plate number was only off by one letter from Mr. Kuzniak’s recollection. I do not believe this conflict on the colour of the vehicle would have rendered the evidence of the other two witnesses unreliable, particularly when this stolen Honda was later seen with Mr. Lira and Mr. Snyder inside shortly after the robbery on February 28, 2018.

[157] Considering all of the evidence I have referred to, my finding that Det. Nasser and DC Daniels firmly believed that they had reasonable and probable grounds to arrest Mr. Lira, and given that there is no suggestion they were biased or prejudiced against Mr. Lira or acting pursuant to an ulterior motive, in my view no reasonable person in the shoes of those officers could logically come to another conclusion. I find that a reasonable person standing in the shoes of Det. Nasser would have had no hesitation concluding that these factors were sufficient in their cumulative effect to constitute reasonable grounds to arrest Mr. Lira.

[158] Given the concession of Ms. Casey and having found that the arrest of Mr. Lira was lawful and there was no breach of his s. 9 Charter rights, I find that the search of his person and the suitcase in his possession was lawful as a search incident to his arrest. The evidence was lawfully discovered and there was no breach of Mr. Lira’s s. 8 Charter rights.

The Relevant Legal Principles - Right to Counsel

[159] Section 10(b) of the Charter guarantees everyone “the right on arrest or detention ... to retain and instruct counsel without delay and to be informed of that right” (emphasis added). This guarantee of the right to counsel imposes both informational and implementational duties on the police. In accordance with the decision of the Supreme Court of Canada in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 2 and 42, the words “without delay” must only be interpreted to mean “immediately” for the purposes of s. 10(b), subject to concerns for officer or public safety or reasonable limitations prescribed by law and justified under the Charter. If an arrested person chooses to exercise their s. 10(b) right by contacting a lawyer, the police must immediately provide that person with a reasonable opportunity to do so. This obligation also requires the police to refrain from eliciting incriminatory evidence from the arrested person until they have had a reasonable opportunity to reach a lawyer or have unequivocally waived the right to do so: see Suberu, at para 38.

[160] There is no dispute that police complied with the informational obligations of s. 10(b) of the Charter when Mr. Lira was arrested and told that he had the right to speak to counsel. Each time rights to counsel were provided, Mr. Lira stated that he wished to speak to counsel. It is also agreed that no attempt was made to take a statement or elicit evidence from Mr. Lira until he had spoken to his counsel of choice.

[161] The Defence has raised two issues with the delay in Mr. Lira’s ability to speak to counsel of choice. The first is with respect to the decision by Det. Nasser and DC Daniels that Mr. Lira would not be able to call counsel until after the search warrant of his residence had been executed, which resulted in a delay of about 11 hours. The second is that the delay continued as the police failed to ensure that Mr. Lira spoke with another lawyer or duty counsel once counsel of choice could not be reached. There is no dispute that the onus is on Mr. Lira on a balance of probabilities to establish a breach of s. 10(b) of the Charter.

[162] The jurisprudence recognizes that specific circumstances may justify some delay in providing an arrested person with access to counsel. These often relate to police safety or the preservation of evidence: see R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Learning, 2010 ONSC 3816, at paras. 71-75. However, as pointed out by Doherty J.A., writing for the court in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 27, these cases also emphasize that concerns of a general or non-specific nature applicable to virtually any search cannot justify delaying access to counsel. The police may delay access only after turning their minds to the specifics of the circumstances and concluding, on a reasonable basis, that police or public safety or the need to preserve evidence justifies some delay in providing access to counsel. Even when those circumstances exist, the police must also take reasonable steps to minimize the delay in granting access to counsel. Doherty J.A. went on, at para. 28, to refer to R. v. Wu, 2017 ONSC 1003, at para. 78, for the principle that the “suspension of the right to counsel is an exceptional step that should only be undertaken in cases where urgent and dangerous circumstances arise or where there are concerns for officer or public safety.”

[163] In Rover, the officers followed a practice that routinely prevented arrested persons from accessing counsel where the police intended to obtain a warrant to search a place believed to be connected to the arrested person for drugs. The rationale behind such a practice appeared, to the Court, to be that there is always a possibility that allowing an arrested person to speak to counsel could put the officers executing the warrant at risk, alert other persons to the execution of the search warrant, or cause evidence to be destroyed. On this issue, Doherty J.A. stated, at para. 33:

In my view, to fall within the exception to the requirement that an arrested person be allowed to speak to counsel without delay, the police must actually turn their mind to the specific circumstances of the case, and they must have reasonable grounds to justify the delay. The justification may be premised on the risk of the destruction of evidence, public safety, police safety, or some other urgent or dangerous circumstance. Furthermore, if the police determine that some delay in allowing an arrested person to speak to counsel is justified to permit execution of the warrant, then they must consider whether it is necessary to arrest the individual before they execute the warrant. The police cannot create a justification for delaying access to counsel by choosing, for reasons of convenience or efficiency, to arrest an individual before seeking, obtaining, and executing a search warrant. Police efficiency and convenience cannot justify delaying an arrested person's right to speak with counsel for several hours. [Emphasis added.]

[164] Although there was no causal connection between the discovery of the drugs and the s. 10(b) breach, Doherty J.A. went on to consider remedy and s. 24(2) of the Charter, at paras. 35-49. He held that the almost six-hour delay, even though there was no attempt to question the defendant, was a serious breach reflecting police disinterest in the defendant’s rights. The delay had a significant impact on his rights and clearly compromised his right to security of the person. The systemic nature of the violation played a central role in Doherty J.A.’s assessment of its enduring impact on the proper administration of justice. He concluded that the long-term repute of the administration of justice required excluding evidence found in the defendant’s home that had resulted in his conviction for possession of drugs for the purpose of trafficking.

[165] In a more recent decision, R. v. Leonard, 2020 ONCA 802, at paras. 12-13, the Ontario Court of Appeal found that the trial judge did not err in finding that the police acted reasonably when they suspended access to counsel while they applied for a search warrant. The evidence in that case also pointed to a common practice of delaying access to counsel when preparing for the execution of a search warrant. The court found that, although it was a common practice, the police had demonstrated that they had considered specific concerns for officer and public safety during the discussions about delaying the defendant’s contact with counsel. Based on credible information about an outstanding firearm, the primary motivation in delaying contact between the defendant and counsel was public and police safety. The court went on to find at para. 14 that the facts in Leonard were distinguishable from Rover because there was no evidence in Rover that any of the officers turned their minds to the specific circumstances of the case when they denied access to counsel for several hours while police sought, obtained, and executed a search warrant.

[166] In the most recent decision from the Ontario Court of Appeal that deals with s. 10(b) that I am aware of, Doherty J.A. had the opportunity to consider the principles set out in Rover in a completely different factual situation. In R. v. Hobeika, 2020 ONCA 750, 153 O.R. (3d) 350, he found that the trial judge had erred and there was, in fact, a s. 10(b) breach because the defendant was held for over four hours before the police took any steps to put him in touch with counsel and the police witnesses offered no explanation for the delay. At para. 79, Doherty J.A. held that this unexplained failure to facilitate contact with counsel in and of itself spoke to a significant s. 10(b) breach. However, there was no evidence to permit any further finding, including no evidence of a police pattern of ignoring constitutional rights during the investigation. Doherty J.A. stated, at para. 80:

The failure to comply with s. 10(b) for over four hours reflects a troubling police indifference to Hobeika’s s. 10(b) rights. There can be no suggestion of any good faith by the police. There can be no suggestion the police were operating in an area of constitutional uncertainty. There are no circumstances that might ameliorate, to some degree, the failure to comply with s. 10(b). This was a clear violation of a long-established and well-understood constitutional obligation.

[167] Doherty J.A. went on to consider the remedy and the Grant factors, and stated:

[85] There is, however, one crucial difference between this case and Rover. In Rover, the police withheld access to counsel for several hours, pursuant to a police protocol which routinely denied access to counsel by arrested persons if search warrants were being obtained or executed in respect of the offence for which the person had been arrested.…

[86] The systemic nature of the s. 10(b) breach in Rover figured prominently in this court's finding that the evidence must be excluded….

[88] On the evidence adduced at trial, the breach of Hobeika’s s. 10(b) rights cannot be characterized as the product of an improper police protocol, or a systemic failure by the police involved in this investigation to meet their constitutional obligations. On the evidence, the breach was a situation-specific, isolated failure, albeit a serious one, by the officers who had custody of Hobeika during the relevant time period.

[89] In R. v. Harrison, 2009 SCC 34, at para 36, former Chief Justice McLachlin emphasizes the qualitative nature of the balancing process engaged under s. 24(2). The nature of the s. 24(2) inquiry means, in some cases, different judges will reasonably arrive at different conclusions with respect to admissibility. I think this case falls into that group.

[90] I come down on the side of admissibility. To exclude the evidence obtained in the searches of the condominiums and Hobeika’s vehicle strikes me as using s. 24(2) more to punish the offending police officers than to vindicate the long-term repute of the criminal justice process. The appellant has not established the admission of the evidence obtained in the searches would, in all the circumstances, bring the administration of justice into disrepute.

[168] Ms. Batorska also relies on a couple of decision of this Court. In R. v. Darteh, 2014 ONSC 895, a decision released before Rover, Code J. found that the defendant had not discharged his onus in establishing a s. 10(b) breach after an eight-hour implementational delay. At para. 208, he stated:

Particularly in gun cases where search warrants are being executed or where a warrant is anticipated, the authorities have consistently allowed the police to delay implementation of s. 10(b) rights until they are “clearly in control”, as Dickson C.J.C. put it in the root case, R. v. Strachan.… The phrase “clearly in control”, as I read the authorities, refers to control of the premises to be searched, control of the firearms-related evidence to be seized, and control of any potential accomplices who could destroy evidence or pose a danger to the police when executing a search warrant. In Strachan, supra, Dickson C.J.C. stated that the police were “justified in preventing any new factors from entering the situation until some of the unknowns had been clarified”. [Emphasis added]

[169] Code J. went on to state, at paras. 209-210, that the facts in the case before him were not as strong as some of the authorities in terms of justifying the decision to delay implementation of the defendant’s s. 10(b) rights: the police had seized the gun, conducted a “protective sweep” through the house to ensure no one else was present, and secured the house, which I interpret to mean what the officers in this case referred to as “freezing” the residence. Nevertheless, Code J. went on to state that the police had not seized any ammunition for the gun, did not know what they would discover upon executing a search warrant, and knew little about whether the defendant had accomplices or other premises where he stored contraband. These “unknowns” would only be “clarified” by a search of the house for evidence. Code J. concluded that it was a close case, but he was not satisfied that the defendant had met his burden of establishing a s. 10(b) violation, although he added that it would be a different matter if the police had elicited any evidence from the defendant during the period of delayed implementation or if the case had not involved a dangerous handgun with the obvious police and public safety concerns associated.

[170] In R. v. Bond, 2019 ONSC 4361, a 12-hour delay was held to be reasonable where the right to consult counsel was delayed until the officers had obtained and executed a search warrant of a locker believed to contain illicit drugs. In that case, it does not appear that Corbett J. was referred to Rover. In coming to his conclusion, Corbett J. held:

[64] Police did not afford Mr. Bond the opportunity to speak with anyone until they had obtained and executed a warrant to search the storage locker. They did this to protect their investigation and for officer safety. This is not to say that police feared that counsel would intentionally assist Mr. Bond to have someone destroy or remove evidence from the storage locker. But instructing counsel on potential sureties, for example, could be a way for Mr. Bond to alert confederates to his plight, thus enabling those confederates to enter the storage locker before police could obtain a warrant.

[65] I appreciate that police could have sent officers to guard the storage locker until a warrant was obtained. However, just because there were other policing techniques available to police does not render the choice made in this case an unreasonable one. Police resources are not infinite, and the minor delay in implementing Mr. Bond’s right to speak to counsel, which caused no prejudice beyond the delay itself, did not amount to an infringement of Mr. Bond’s right to counsel, given the context. [Emphasis added.]

[171] With respect to the delay in Mr. Lira speaking to counsel that occurred after the search warrant for Faywood was executed, Ms. Batorska also relies on cases that speak to the obligation of the arrested person to use due diligence in exercising their s. 10(b) rights. In R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 35, the Supreme Court of Canada concluded that:

Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation: If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended.… [Citations omitted; emphasis added.]

[172] In R. v. Richfield (2003), 178 C.C.C. (3d) 23 (Ont. C.A.), the Ontario Court of Appeal held at para. 12 that:

The appellant, upon being informed that the lawyer that he had asked the police to call had not called back, did not ask to make a further call to his counsel of choice or to another counsel. When asked if he wished the assistance of duty counsel, the appellant indicated that he did not. The appellant was not reasonably diligent in exercising his right to counsel in the circumstances. The fact that the police could have made greater efforts earlier does not detract from the appellant’s own lack of diligence at a later stage in exercising his right to counsel. [Emphasis added]

Has Mr. Lira proven that there was a breach of his s. 10(b) right to counsel?

[173] Ms. Casey submits that the practice under which the officers involved in this case operated demonstrates a disregard of Mr. Lira’s fundamental constitutional right to speak with counsel at the time of his arrest, when the police refused his request to speak with counsel.

[174] I have considered this issue in the two time periods already referred to. The first is from when Mr. Lira was first placed in an interview room at about 3:40 p.m. until the first call was made to his counsel of choice at 2:11 a.m., a period of a little under 11 hours. The second is from shortly after 2:11 a.m., when Mr. Lira was told that a message was left with his counsel of choice, until 7:42 a.m., when his counsel called the station and was put through to Mr. Lira, a period of about seven hours.

[175] In considering the first period, the issue is whether Mr. Lira has proven that the police were not justified in suspending his right to counsel while they ascertained that Faywood was his residence and the ITO for the search warrant of Faywood was prepared and executed.

[176] In my view, Rover is clearly distinguishable from the case at bar. The evidence of DC Daniels and Det. Nasser that they discussed the question of suspending Mr. Lira’s rights to counsel before coming to a unanimous decision to do so was not challenged. The speed with which DC Daniels began the process of contacting Mr. Lira’s counsel once the search warrant was executed is also consistent with this evidence; he was well aware of Mr. Lira’s right to counsel and his duty to implement it. There is no evidence before me to suggest that the decision to suspend Mr. Lira’s right to counsel was done as a matter of protocol, policy, or routine that was applied every time a search warrant was obtained or executed in respect of the offences for which Mr. Lira had been arrested.

[177] This was also not a situation, like the one referenced in Rover, where Det. Nasser could have reasonably delayed his decision to arrest Mr. Lira while he prepared and executed a search warrant. Mr. Lira had only just become a suspect and Det. Nasser was concerned that Mr. Lira was using counter-surveillance measures because he had noticed he was being followed by police. Given the use of two different firearms in the robberies, Det. Nasser’s decision to order Mr. Lira’s arrest when he did made sense. I considered whether Det. Nasser could have started the preparation of the ITO earlier on February 28, 2018, but he was not asked about that and so I have no idea if it would have been reasonable or possible. I do know he was working as late as midnight on February 28, 2018 and that he did not yet know who was with Mr. Lira or what apartment in 22 Varna Drive they might be in.

[178] Furthermore, even after police arrested Mr. Snyder at 4:15 p.m. on March 1, 2018, the silver/chrome handgun and other evidence was still outstanding. Ms. Casey submits that DC Daniels could have contacted Mr. Lira’s counsel and asked that she not advise anyone of the fact that Mr. Lira had been arrested, but I accept DC Daniels’ evidence that he believed he could not make such a request. I do not know that he could have, either. Setting aside the fact that, after the message was left, Mr. Lira’s counsel of choice did not call the station until morning, I have no evidence to suggest that counsel could have agreed to such a request without getting instructions from Mr. Lira. Furthermore, if DC Daniels had reached counsel, told her why he was calling, and requested that she not contact anyone, she could simply have refused and made any call to family members thereafter.

[179] The fact that there was an outstanding firearm in this case was an important consideration and, as the officers put it, an obvious concern for officer and public safety. Although the delay in Darteh was somewhat less than the first period of delay in the case at bar, in finding that the defendant had not met his onus, Code J. referred to Strachan and the fact that the authorities have consistently allowed the police to delay implementation of s. 10(b) rights until they are “clearly in control” of the premises to be searched, the firearms-related evidence to be seized, and any potential accomplices who could destroy evidence or pose a danger to the police when executing a search warrant. The facts in the case at bar are much stronger than the facts in the case before Code J., as it seems that in that case officers had frozen the premises to be searched.

[180] As already set out, in Rover Doherty J.A. stated that even when a suspension of the right to counsel can be justified, police must take reasonable steps to minimize the delay in granting access to counsel. He also held that police efficiency and convenience cannot justify delaying an arrested person’s right to speak with counsel for several hours. I considered these comments in light of the admissions of both DC Daniels and Det. Nasser that, once Mr. Snyder was arrested, if they had frozen Faywood they would not have had the concerns that led to the suspension of Mr. Lira’s right to counsel.

[181] It certainly would have been preferable if DC Daniels and Det. Nasser had expressly put their minds to the possibility of freezing Faywood. The first question is when they could have taken that action. This was not asked, but I expect that they could not have done so until they confirmed that Faywood was in fact Mr. Lira’s residence, as they would have had to breach the door and secure and remove anyone inside the unit. It certainly would have been reasonable to anticipate that there would be other people in the residence.

[182] I have set out the evidence from DC Daniels as to why it was not feasible to freeze Faywood, given that they would have needed another ETF team and another MCU team. I appreciate that the MCU officers were not essential, as officers from hold-up ultimately attended as well to execute the search warrant. DC Daniels was very fair in admitting that, however difficult it would have been, it would have been possible to freeze Faywood while the warrant was being prepared. It could be argued that the failure to consider this was a breach of Mr. Lira’s right to counsel. That, of course, is Ms. Casey’s argument. However, I do not make that finding in this case, as I would not want to set a general rule that this should be done in every case where an ITO for a search warrant to find a firearm is being prepared. As DC Daniels testified, and as is clear from what happened at 22 Varna Drive, there could well be persons in the place to be searched – “found ins,” as they are referred to by police. Once entry to a place has been made for the purpose of freezing a premise, any found ins are removed. I note that had that been done in this case, Mr. Lira’s mother and sister would have had to leave the apartment for several hours into the middle of the night.

[183] I have set out the conclusion that Corbett J. came to in Bond, which was decided after Rover but makes no reference to that decision. The facts in the case at bar are much stronger than that case, as the case at bar involves a firearm and a residence, not a locker. The locker could presumably have been secured by one or two officers. Although Corbett J. accepts this, he notes that police resources are not infinite and just because this could have been done does not make the decision not to do so unreasonable.

[184] In my view, a faithful application of the principles in Rover on the facts of the case at bar would have required the officers to at least consider freezing Faywood. However, had they done so, given that their only MCU squad was otherwise engaged and the reality of limited resources in manpower, not money, I could not conclude that a decision not to freeze Faywood in the circumstances would have been unreasonable. Therefore, the failure to consider the possibility of freezing Faywood in these circumstances did not impact on the right to counsel.

[185] Ms. Casey suggests that the suspension of the right to counsel could have gone on for days. That, of course, not only is unlikely but also would have been another matter. In my view, the delay of almost 11 hours makes this case a close call but, in the end, I find that Mr. Lira has not persuaded me that the suspension of his right to call counsel until the search warrant at Faywood was executed was unreasonable.

[186] I turn then to the second period – the time after DC Daniels first called counsel of choice for Mr. Lira until the time Ms. Izadi called back and spoke to him. On this issue, I find that Mr. Lira has not persuaded me that he exercised any due diligence in obtaining legal advice. In fact, his comments and lack of requests to speak to duty or other counsel suggest that he expected not to reach his counsel of choice for some unknown reason when he was booked in during the afternoon of March 1, 2018 and in the early hours of March 2, 2018, when one would expect his counsel of choice would be sleeping.

[187] There is no suggestion in the evidence that Mr. Lira did not understand that he had the right to speak to a lawyer and I have no doubt that he knew he could speak to duty counsel if he wished to. Although, again, it might have been preferable if DC Daniels had asked Mr. Lira a second time if he wished to speak to duty counsel, I do not find that his failure to do so breached Mr. Lira’s s. 10(b) Charter rights. As the Court of Appeal stated in Richfield, the fact that the police could have made greater efforts earlier does not detract from a defendant’s own lack of diligence in exercising his right to counsel. Mr. Lira knew a message had been left and no one returned the call over the next period of time. This is particularly so when there was no attempt by police to take a statement from Mr. Lira.

[188] For these reasons, I find that Mr. Lira has not proven that his s. 10(b) Charter rights were breached.

Exclusion of Evidence

If there was a breach of Mr. Lira’s ss. 8, 9 and/or 10(b) Charter rights, should the firearm and the phone evidence be excluded pursuant to s. 24(2) of the Charter?

[189] Having found that Mr. Lira’s Charter rights were not breached, a s. 24(2) analysis is not necessary. However, it is customary for a trial judge to do so in any event, should there be an appeal and the trial judge is found to have erred in determining that there was no breach of the Charter. Although the Court of Appeal would consider the s. 24(2) remedy de novo in those circumstances, I appreciate that I had the opportunity to see the witnesses and, if a factual finding were necessary, I am in a better position than an appeal court to make such a finding. Apart from that, however, it is virtually impossible to do a full s. 24(2) analysis in a case like this as it is not clear what alternative facts might be found or whether a court on appeal might find a breach of ss. 8 and 9 or a breach of s. 10(b), or, indeed, a breach of all these rights.

[190] Ms. Batorska submits that the rifle found in the suitcase and the cell phone found on Mr. Lira’s person were “not obtained in a manner” that infringed his Charter rights. That might be the case if there was only a breach of Mr. Lira’s s. 10(b) Charter rights: see, for example R. v. Thavakularatnam, 2018 ONSC 1687. But, in my view, that would not be the case if there was a breach of Mr. Lira’s ss. 8 and 9 Charter rights.

[191] In considering any remedy, I would, of course, have been guided by the decision of the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] S.C.R. 353, which sets out the factors to consider and balance in such a determination.

[192] The first factor requires the court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that courts effectively condone deviation from the rule of law: see Grant, at para. 72. This analysis involves a consideration of whether the Charter breach was, on the one hand, inadvertent or minor or, on the other hand, showed “willful or reckless disregard for Charter rights”: Grant, para. 74. The court must also consider whether there were “extenuating circumstances such as the need to prevent the disappearance of evidence” and whether the police acted in good faith: Grant, at para. 75.

[193] The second factor in Grant, which to some extent overlaps the first, requires a consideration of the impact of the breach on the defendant. When contemplating the impact on the accused person’s Charter protected interests, it is necessary to evaluate the extent to which the breach actually undermined the interests protected by the right that was infringed. A court should consider whether the impact of the breach was “fleeting and technical” or “profoundly intrusive” and consider the effect of the breach on the accused’s human dignity: Grant, at paras. 76 and 78. The more serious the impact on a defendant’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute: see Grant, at para. 76.

[194] The third factor is concerned with society’s interest in the adjudication of the case on its merits. Considering this last Grant factor, this is reliable evidence. Without it, the Crown has no case on the firearms’ charges and the case is severely diminished on the robbery charges. This is a strong factor favouring inclusion of the evidence. But the Supreme Court in Grant made it clear that reliable evidence is not automatically admissible. The view that reliable evidence is admissible regardless of how it was obtained is inconsistent with the Charter’s affirmation of rights: see Grant, at para. 80; see also R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63. Nevertheless, the Court went on to say that “exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute”: Grant, at para. 81.

[195] At this stage of the analysis, I would be required to weigh the various factors, understanding that there is no overarching rule governing how the balance should be struck: see Grant, at para. 86.

[196] I advised counsel during submissions of my tentative view that if Mr. Lira were unlawfully arrested and unlawfully searched, it would be a very serious breach of his Charter rights. The evidence would therefore likely be excluded, particularly if I had found Det. Nasser was not being truthful. That, in my view, is still the case. But if the finding on appeal is that Det. Nasser was acting in good faith and Mr. Lira was nevertheless unlawfully arrested and searched, in light of recent authority from the Court of Appeal and the Supreme Court of Canada, a court could order that the firearm at least not be excluded.

[197] As Ms. Batorska submits, the fact that Mr. Lira had a firearm and ammunition in his possession in public could shift the balance in favour of not excluding the evidence, even if he were unlawfully arrested, in light of the recent decision of R. v. Omar, 2018 ONCA 975, 144 O.R. (3d) 1, rev’d 2019 SCC 32, [2019] 2 S.C.R. 576, at paras. 122-3. In Omar, the majority of the Supreme Court of Canada endorsed the decision of the dissenting justice of the Ontario Court of Appeal, Brown J.A. In that case, the defendant was convicted of various firearms offences and possession of cocaine for the purpose of trafficking. He was stopped by two police officers and asked to identify himself while walking down the street late at night with an acquaintance. While one officer sat in the police car and ran their names through the Canadian Police Information Centre, the officer questioning the defendant saw the barrel of a gun in his pocket. The trial judge found that the stop amounted to a breach of the defendant's s. 9 Charter right not to be arbitrarily detained, that the search violated his s. 8 right to be secure against unreasonable search and seizure, and that the defendant had been denied his s. 10(b) right to be informed of his right to counsel without delay. However, she refused to exclude the evidence pursuant to s. 24(2) of the Charter. On appeal, there was no issue that the defendant had been detained. The majority of the Court found that the trial judge erred by refusing to exclude the evidence on the basis that the police acted in good faith and did not believe that they had detained the appellant.

[198] In dissent, Brown J.A. wrote that, although it is a matter of balancing under s. 24(2), the balance necessary to offer Canadians a peaceful community in which to live is not achieved by neutering the third Grant factor and treating illegal handguns as fungible with any other kind of evidence for the purposes of a s. 24(2) analysis. On appeal to the Supreme Court of Canada, a majority of the Court allowed the appeal, substantially for the reasons of Brown J.A.

[199] I am not in a position to apply these authorities given the facts I found, and, in my view, any analysis of mine would be of no assistance to a court on appeal if I erred in finding there was no breach of Mr. Lira’s ss. 8 and 9 Charter rights.

[200] In my view, the situation would be clearer if I only found a breach of s. 10(b). In that event, I would have permitted the evidence to be admitted at the trial. I have considered that DC Daniels and Det. Nasser put their minds to the decision to suspend counsel; the attitude of Mr. Lira and that he showed no real interest in speaking to counsel; the absence of any evidence that Mr. Lira was experiencing psychological pressure; that no attempt was made to take a statement; and that there is no connection between any such breach and the evidence sought to be excluded. Setting aside whether there was even standing to make an order excluding the evidence as a result of a s. 10(b) breach and notwithstanding the importance of the right to counsel, on the facts of this case, unless the evidence had established facts similar to Rover I would have followed the Court of Appeal in Hobeika, at paras. 85-90, and would not have excluded the evidence.

Disposition

[201] For these reasons, the application by Mr. Lira asserting a breach of his ss. 8, 9 and 10(b) Charter rights was dismissed.

SPIES J.

Date: March 2, 2021

Edited Decision Released: March 10, 2021

Court File No.: CR-19-40000246-0000 Date: 2021-03-02

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – IVAN LIRA Defendant

RULING ON DEFENCE Charter APPLICATION TO EXCLUDE EVIDENCE

SPIES J.

Date: March 2, 2021 Edited Decision Released: March 10, 2021

[^1]: This evidence was received on the voir dire only because it is relevant to the grounds Det. Nasser formed for the arrest of Mr. Lira. This evidence is not admissible on the trial proper.