Court File and Parties

COURT FILE NO.: CR-19-003423 DATE: 2021-02-22

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – YOUSSEF MESSOUDI Defendant

Counsel: Joseph Selvaratnam and Ian Bell, for the Crown Mitchell Worsoff, for the Defendant

HEARD: November 16, 17, 18, 2020

Reasons for Decision

EDWARDS RSj.:

Overview

[1] Mr. Messoudi was arrested on July 10, 2018 in connection with various drug and firearm offences including importation, possession for the purposes of trafficking, and possession of a prohibited firearm.

[2] Mr. Messoudi initially applied for an order staying the prosecution of these offences on the basis that his rights, pursuant to s. 7 and s. 12 of the Charter of Rights & Freedoms (“the Charter”), had been infringed as a result of alleged excessive use of force by police. That aspect of his application was abandoned. Mr. Messoudi proceeded with his application to exclude evidence on the basis that his Charter rights had been infringed pursuant to s. 10(a) and s. 10(b) of the Charter.

[3] As it relates to Mr. Messoudi’s application, this court must first determine if he was “promptly” informed of the reasons for his arrest or detention. The second issue is when and by whom he was advised of his right to instruct and retain counsel. Mr. Messoudi argues this did not happen until well after he was detained, when Officer Cambia read him his rights from a police script. The Crown argues that Officer Bowyer gave Mr. Messoudi his rights from memory (without the aid of a police script), shortly after he arrived on the scene and took over the arrest and detention of Mr. Messoudi.

The Evidence

[4] There is no dispute that on June 21, 2018, two Canada Post shipments were intercepted by the Canada Border and Security Agency (“CBSA”) officials at the Vancouver International Mail Centre. It was subsequently discovered that these shipments contained 754 grams of fentanyl which were concealed in plastic and foil bags. The shipments had originated in China and were destined for an address in Richmond Hill, Ontario – 15 Hunters Point Drive (“the address”). The package was addressed to an Angus Belleau who was residing as a basement tenant at the address. Mr. Belleau was arrested and subsequently released.

[5] The fentanyl within the package was removed and on July 10, 2018, the Royal Canadian Mounted Police (“the RCMP”) conducted a controlled delivery at the address. The package contained an inert substance and was received by Mr. Belleau. Outside the address was a Cadillac SUV (the Cadillac) occupied by Mr. Messoudi and two co-accused, Asena Foto and Haben Kebedom. While counsel for Mr. Foto and Mr. Kebedom were present during the course of this application, they did not participate, nor did they make any submissions.

[6] After the package had been delivered to Mr. Belleau, Mr. Messoudi exited the Cadillac SUV and grabbed the package from the owner of the residence, Mangu Nanda. Ms. Nanda was also arrested, but ultimately the charges against her were withdrawn.

[7] After Mr. Messoudi grabbed the package from Ms. Nanda, he ran back to the waiting Cadillac driven by Mr. Foto. Police then followed the Cadillac to a local strip mall where it was effectively cornered and the occupants fled.

[8] Numerous police officers were involved in pursuing the three occupants of the Cadillac including various police officers of the RCMP Emergency Task Force (“the ETF”).

[9] While the aforesaid facts are not in dispute as far as this application is concerned, they do not represent findings of fact in relation to the trial proper which is scheduled to take place at a later date.

[10] Mr. Messoudi acknowledges that on July 10, 2018, he was running in the area of the strip mall where he was ultimately arrested. Prior to his arrest, it was his evidence that he recalls hearing someone say, “Stop running or I will shoot”. Mr. Messoudi testified that he was then told to place his hands in the air and to go to the floor. Mr. Messoudi then went into what he described as a “plank position”, flat on his stomach with his hands out front and his legs out back. Mr. Messoudi testified that the first officer who commanded him to stop remained where he was, while a second officer came from behind and placed his foot on his right hand. While the officer reached for his handcuffs, Mr. Messoudi testified that his left wrist was first handcuffed, at which point the weight of the police officer then moved and he heard a “crack”.

[11] Approximately 10 minutes after these initial events, Mr. Messoudi testified that he felt dehydrated and asked to be put in the shade. At this point, a Dodge Journey (the Dodge) came into the parking lot. Mr. Messoudi described the occupants of the Dodge as one African and one white. He believed that they were Officers Bowyer and Johnson. They arrived approximately 15 to 20 minutes after he was handcuffed.

[12] Significantly, Mr. Messoudi testified in-chief that during the period of time that he was with Officer Bowyer, there was no conversation between the two of them. It was not until a Toyota Venza (the Toyota) came into the parking lot, occupied by a female (Officer Cambia) and a brown male, that his rights were read to him by the female officer. Mr. Messoudi testified that the brown officer did not say anything.

[13] Mr. Messoudi testified that the female and white officer then escorted him to the Pearson Airport RCMP police station, where after his arrival 10 to 20 minutes later he was able to speak with his lawyer Sam Goldstein. He testified that his hand was hurting him and he asked for medical care. An ice pack was provided to him by a firefighter. He was subsequently taken to hospital.

[14] In his evidence in-chief, Mr. Messoudi testified that neither of the two officers who were initially involved in his arrest gave him his Charter Rights or informed him what he was charged with. He also testified that neither the third or fourth officer on scene (Officers Bowyer and Johnson) gave him his Charter Rights or informed him about the charges. Mr. Messoudi maintained that until he was formally arrested and read his rights by Officer Cambia, he was not told why he was being detained.

[15] In cross-examination, despite the fact Mr. Messoudi had abandoned his application under s. 7 and s. 12 of the Charter, (an application based on an alleged infringement of his rights due to the use of excessive force by police), Mr. Messoudi still maintained that the injury to his wrist was caused by one of the arresting officers applying unnecessary force.

[16] The first police officer on the scene that had confronted Mr. Messoudi was Officer Kuhn. Shortly after Officer Kuhn confronted Mr. Messoudi, Officer Jason Avery who is a member of the RCMP ETF joined him. Officer Avery testified that he secured Mr. Messoudi’s wrists with handcuffs. The only conversation between Officer Avery and Mr. Messoudi, was a conversation in which Officer Avery asked him for his name and advised him that the investigating police officers would be attending shortly. Neither Officer Avery nor Officer Kuhn advised Mr. Messoudi of the reason why he was being detained/handcuffed, nor did they give him his rights to counsel.

[17] As for the use of force, Officer Avery confirmed in his evidence that from his perspective he used a very low level of force and he denied stepping on Mr. Messoudi’s hand or wrist.

[18] Officer Avery testified that Mr. Messoudi was in his custody for between 15 and 20 minutes, after which Officer Bowyer attended. By inference, if Officer Avery’s evidence is accepted then Mr. Messoudi was detained without any information about the reasons for his detention, nor was he informed of his rights to counsel or other Charter rights.

[19] The evidence of Mr. Messoudi as to when he was advised of the reason for his detention and given his rights to counsel, is in sharp contrast with the evidence of Officer Bowyer. Mr. Messoudi testified that he was read his rights to counsel from a script when Officer Cambia arrived on the scene. He denies being given his rights to counsel by Officer Bowyer.

[20] In contrast, Officer Bowyer testified that when he arrived at the location where Mr. Messoudi was being detained, he immediately advised Mr. Messoudi that he was being arrested for importing a narcotic and possession for the purposes of trafficking. He also testified that he gave him his rights to counsel, with further information that if he did not have a lawyer one could be provided to him by Legal Aid. He further cautioned Mr. Messoudi that he did not have to speak to him but that anything that he did say could be used against him.

[21] Officer Bowyer could not recall the exact wording that he used in his discussion with Mr. Messoudi. He also confirmed that he would normally use a written script found in his notebook, but that the script was not available to him as he had left it in the police vehicle at the point in time when the Cadillac was boxed in and the occupants fled.

[22] What is troubling from Officer Bowyer’s evidence, is the absence of any notation in his notebook about what occurred at the point in time when Mr. Messoudi was initially arrested and given his rights to counsel. The evidence that Officer Bowyer gave about what happened between him and Mr. Messoudi is based solely on his independent recollection, without any foundation from his actual notes.

[23] There is no dispute on the evidence that Mr. Messoudi was provided his Charter rights and the reasons for his arrest upon the arrival of Officer Cambia. Officer Cambia had been specifically requested to attend at the location where Mr. Messoudi was being detained so that she could, in fact, read from the script typically used when a person is arrested and given his or her Charter rights. This evidence was not just confirmed by Officer Cambia, but also by Mr. Messoudi himself.

[24] In argument, it was suggested that Mr. Messoudi - when he was given his rights to counsel on scene, should have been given an opportunity to speak to counsel and this could have been fulfilled by giving Mr. Messoudi his cell phone. This argument is pursued despite Mr. Messoudi’s own evidence that he told Officer Cambia that he would wait to speak to his lawyer when he had the opportunity to do so in private at the police station.

[25] Undoubtedly, there was a delay from the time that Mr. Messoudi was either given his rights by Officer Bowyer or from the time when the script was read to him by Officer Cambia, to when he was ultimately transported to Pearson International Airport and then afforded the opportunity to speak to counsel. By any estimate, approximately 45 minutes would have elapsed in that regard.

Factual Findings

[26] Mr. Messoudi maintains in his evidence that the first two police officers on the scene where he was detained did not read him his rights, nor was he advised as to the reasons for his detention. Officers Avery and Kuhn essentially confirm this evidence. Officer Kuhn testified that the only conversation he had with Mr. Messoudi was to get his name. Officer Avery testified that it was not his role to give someone he had detained his or her rights to counsel because he was involved in securing the scene as a member of the Emergency Task Force.

[27] There is no dispute on the evidence that it was Officer Kuhn who initially detained or stopped Mr. Messoudi. There is also no dispute that Officer Avery placed the handcuffs on Mr. Messoudi. Clearly, with the use of handcuffs Mr. Messoudi was detained, albeit he was not informed of the charges he was facing or the reasons for his arrest.

[28] Officer Avery testified that Mr. Messoudi was in his custody for between 15 to 20 minutes before the arrival of Officers Bowyer and Johnson. It was Officer Avery’s evidence that Officer Bowyer arrived at 2:22 p.m. Mr. Messoudi himself testified that Officer Bowyer and his partner Officer Johnson arrived 15 to 20 minutes after Officer Avery handcuffed him, which confirms Officer Avery’s estimate of this period of detention. As such, based on the evidence of both Officers Avery and Kuhn, I have no difficulty in coming to the conclusion that Mr. Messoudi was not advised of the reasons for his detention for a period of 15 to 20 minutes.

[29] Officer Bowyer testified that because he did not have his police script with him that he gave Mr. Messoudi his rights to counsel by memory, and that he did this at 2:21 p.m. He also advised Mr. Messoudi he did not have to say anything. Officer Bowyer explained he did not have his police script with him to read Mr. Messoudi his rights as opposed to giving them by memory, because he had left the script in his notebook in the police vehicle when he jumped out to apprehend the occupants.

[30] It is noteworthy that nowhere in his notebook does Officer Bowyer record that he gave Mr. Messoudi his rights to counsel; nor is there any late entry made after the fact that he gave Mr. Messoudi his rights to counsel.

[31] Officer Bowyer’s evidence that he gave Mr. Messoudi his Charter rights is contradicted by Mr. Messoudi, who denies he was advised of his right to counsel until Officer Cambia read him his rights from her script. Officer Cambia read from her script at 2:45 p.m. There is, therefore, a complete divergence in the evidence between Officer Bowyer and Mr. Messoudi, as to whether Mr. Messoudi was advised of his right to counsel prior to Officer Cambia reading from her script.

[32] Officer Cambia confirms that when she read Mr. Messoudi his rights, that she asked him if he had a lawyer to which he replied yes, Mr. Sam Goldstein. She asked Mr. Messoudi if he wanted to speak to Mr. Goldstein, to which he replied no that he would wait until he got to the police station.

[33] Officer Cambia’s testimony was not attacked in cross-examination. I accept her evidence that not only did she read Mr. Messoudi his rights from her script, but she also asked Mr. Messoudi if he wanted to speak to his lawyer to which he replied no.

[34] After arriving at the police station, Mr. Messoudi was allowed to speak to Mr. Goldstein between 4:15 p.m. and 4:25 p.m. Officer Cambia confirmed that she left the scene with Mr. Messoudi and Officer Bowyer at 3:27 p.m., and arrived at Terminal One Pearson Airport at 3:53 p.m. She confirmed it is about a five-minute walk from the police parking area to the actual police station at the airport.

[35] Arising out of this summary of this evidence, this court has to make a factual determination as to whether Mr. Messoudi was advised of his right to counsel as testified to by Officer Bowyer, or whether in fact Mr. Messoudi was only given his Charter rights when Officer Cambia read from her script. I have already factually determined Mr. Messoudi was detained for 15 to 20 minutes without being advised of the reasons for his detention.

[36] Notetaking is a fundamental part of a police officer’s daily responsibility. In the context of a civil medical malpractice case it is sometimes said, “not noted not done”. While the absence of something material in a police officer’s notebook may lead to an attack on that police officer’s credibility, it does not follow that the absence of notes means an officer did not see, hear or do something. This is precisely the case with Officer Bowyer’s evidence, when he says he gave Mr. Messoudi his right to counsel but there is no notation in his notes that he did.

[37] Mr. Messoudi denies Officer Bowyer gave him his right to counsel. Mr. Messoudi initially testified in response to a question, that he “did not recall” when Officer Bowyer placed him in the police van that he was under arrest. Mr. Messoudi then quickly changed his answer and said this “did not happen”. There is, in my view, a significant difference in any answer that moves from “I don’t recall” to “it never happened”. Mr. Messoudi’s change in his evidence in this regard, calls into question his overall credibility as it relates to his evidence that Officer Bowyer did not give him his right to counsel when he was detained by Officer Bowyer.

[38] While Mr. Messoudi abandoned that part of his application as it relates to the injury he says he suffered while he was being handcuffed, nonetheless his evidence in cross-examination on this issue in my view lacks credibility. Mr. Messoudi testified that Officers Cambia and Bowyer took him to the local hospital where a history was provided to the attending doctor not by Mr. Messoudi, but according to his evidence by one or other of these police officers.

[39] The credibility of Mr. Messoudi’s evidence as to what happened at the hospital needs to be contrasted with the actual history provided and recorded by the attending doctor.

[40] Mr. Messoudi maintained in his cross-examination that the history provided as recorded in the hospital records (reflected in the agreed statement of fact, Exhibit 1), was a history provided by one or other of the attending police officers. Specifically, Mr. Messoudi maintained that he did not give that history. The history, as recorded, was that Mr. Messoudi “fell today onto closed fist…” That history, of course, is quite at odds with Mr. Messoudi’s evidence in-chief, that the injury to his wrist was caused during the process of being handcuffed when the officer shifted his weight onto his right hand.

[41] The medical history reflected in the agreed statement of fact also indicates that Mr. Messoudi was a “20-year-old male” and that he had “no known drug allergies”. It also confirms that he was “not on any medication”, nor did he have any “past medical history”. If Mr. Messoudi’s evidence in-chief is to be believed that the history as it relates to the injury to his wrist occurred as a result of a fall, it is difficult to reconcile the complete medical history reflected in the agreed statement of fact. It is difficult to believe that one or other of the attending police officers would have known that he had no known drug history; was on no medication; and had no past medical history. That information had to come from Mr. Messoudi, just as the history provided concerning his fall onto a closed fist was provided by Mr. Messoudi.

[42] In my view, Mr. Messoudi’s lack of credibility as it relates to the events at the hospital and the suggestion that he did not give the medical history but rather the police officers, reflects on his overall credibility as it relates to whether or not he was provided his Charter rights by Officer Bowyer.

[43] From the summary and analysis of the evidence, I have concluded that Mr. Messoudi was detained for a period of 15 to 20 minutes by Officers Avery and Kuhn without any information about the reasons for his detention. I have also concluded that after that initial period of detention. Officer Bowyer did give Mr. Messoudi a summary of his Charter rights and specifically his right to counsel. I have also concluded that Officer Cambia asked Mr. Messoudi if he wanted to speak to a lawyer, and Mr. Messoudi said he would wait until he arrived at the police station. It remains for this court to determine what flows from these findings.

[44] There can be no doubt that Officer Bowyer failed in his day to day police responsibility of making contemporaneous notes of everything of a material nature that occurred on the day in question. One of those material facts that should have been recorded was he gave Mr. Messoudi his right to counsel. Had he recorded this in his notes it would have been clear Mr Messoudi received his Charter rights well prior to when Officer Cambia read from the police script.

[45] Even making allowance for the fact that Officer Bowyer is an experienced police officer who undoubtedly has testified in court on numerous occasions, I find his evidence was straightforward and truthful. He did not seek to make excuses for his obvious error in not properly recording in his notes that he had cautioned Mr. Messoudi and given him his rights. Despite this material omission in his notes, I accept his evidence that he did provide Mr. Messoudi his right to counsel. For the reasons I set forth above as it relates to Mr. Messoudi’s credibility, I do not accept Mr. Messoudi’s evidence where it contradicts Officer Bowyer’s evidence as it relates to the issue of whether he was given his rights to counsel.

The Law and Analysis

[46] Mr. Messoudi was in a vehicle which had been under surveillance by the police, as a result of which there were reasonable grounds to suspect that the package which had been intercepted by the CBSA and found to contain fentanyl and subsequently delivered to the address, was in the possession of Mr. Messoudi. When the Cadillac was cornered at the local strip mall and its occupants fled, Mr. Messoudi was one of the individuals pursued by members of the RCMP ETF. Mr. Messoudi on his evidence, accepts that he ultimately stopped fleeing the scene when he heard someone state “stop running or I will shoot”. Mr. Messoudi was then detained and handcuffed. Mr. Messoudi was detained by Officer Avery. Other than a brief conversation in which Officer Avery asked him his name, there was no further discussion. Officer Avery did not explain the reasons for his detention.

[47] Section 10 of the Charter is engaged as a result of what occurred at the strip plaza. Mr. Messoudi, like all others, is guaranteed certain rights “on arrest or detention”. These rights include the right to be informed “promptly of the reasons therefor and to retain and instruct counsel without delay and to be informed of that right”.

[48] The Supreme Court of Canada in R. v. Evans, [1991] 1 SCR 869, provides a roadmap as to what section 10(a) of the Charter requires the police to do when someone is detained. The roadmap is dependent upon the circumstances, bearing in mind the underlying purpose of the guarantee. In that regard McLachlin J. (as she then was) stated at page 888 of her reasons:

When considering whether there has been a breach of s. 10(a) of the Charter, it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern. What the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline or submit to arrest, or alternatively, to undermine his right to counsel under section 10(b).

[49] In terms of when an accused must be informed of the information to which he or she is entitled under s. 10(a) and s. 10(b) of the Charter, it is clear that someone who is detained or arrested must be informed “promptly” of the reason or reasons for their detention. In the context of s. 10(a) the word “promptly” means “immediately (see R. v. Kelly, 1985 17 CCC (3d) 419, at 424).

[50] On the facts that are not in dispute even on the evidence of Officer Avery, Mr. Messoudi was detained and handcuffed for anywhere between 10 and 15 minutes without being informed of the reasons for his detention or arrest. Officer Avery explained why he did not immediately inform Mr. Messoudi of the reason for his detention. His explanation was simple. He was a member of the ETF and it was not his responsibility to inform Mr. Messoudi of the reasons for his detention. Informing an accused of the reasons for the detention from the perspective of Officer Avery is the responsibility of the investigating police officers.

[51] Officer Avery accepted in cross examination that when Mr Messoudi was handcuffed that he was “detained”. He further acknowledged that part of his rationale for not explaining to Mr Messoudi why he was detained was because he was not “privy to all of the facts” and because of “public safety”.

[52] The concept of “public safety” and its impact on an accused’s right to be informed promptly of the reasons for his or her detention is relevant not only to whether there has been a violation of an accused’s section 10 a) Charter right but is also relevant if the court has to undertake a s 24 (2) analysis. In this case the RCMP has a written policy as it relates to how an arresting officer is required to act with respect to the implementation of an accused’s S 10 Charter rights.

[53] Entered as Exhibit 4 was the RCMP “Directive” which defines both arrest and detention. Under the subheading “General” the directive states “The Primary objective of any intervention is public safety. Police officer safety is essential to public safety”. Officer Avery explained part of his rational for not informing Mr Messoudi of the reasons for his detention related to public safety which would be consistent with the Directive.

[54] On the facts presented to Officer Avery, there can be little doubt that Mr. Messoudi’s detention was fully justified. He had information that Mr. Messoudi may have been one of the individuals in the Cadillac that had been under surveillance by the police, and that these individuals had fled the vehicle once they were cornered. Mr. Messoudi was running from the general vicinity of where the Cadillac had stopped. Mr Messoudi was told to stop running or he could be shot. Mr. Messoudi complied with the orders of Officer Avery.

[55] While Officer Avery was tasked with the role of being one of the members of the ETF, nonetheless he is still a police officer and is bound by the law and the Charter. Specifically, Officer Avery had an obligation to promptly inform Mr. Messoudi of the reasons for his detention and arrest. This is particularly so given that the period of his detention was as much as 15 minutes.

[56] Some might argue that Mr. Messoudi must have implicitly understood the reasons for his detention, as he was fleeing “from the scene of the crime” and must have expected that he would be confronted by a police officer who would then detain him. Such implicit thinking, however, would be incorrect. Section 10(a) of the Charter imposes a positive obligation on the police to promptly advise a person who is detained of the reasons for the detention. The purpose of section 10(a) of the Charter is set forth by the Court of Appeal in R. v. Nguyen, 2008 ONCA 49, at para. 20:

It is clear, therefore, that while the main purpose of s. 10(a) is to inform an individual of why he or she is being detained, it also has an important secondary aspect as an adjunct to the right to counsel conferred by s. 10(b). Specifically, the purpose of s. 10(a) is also to inform an individual of the extent of his or her jeopardy such that he or she can exercise the right to counsel conferred by s. 10(b) in a meaningful way. The purpose of s. 10(b), in turn, is to ensure that an individual subject to detention or arrest understands his or her right to silence and can make a meaningful choice about whether to exercise it…

[57] To assume Mr. Messoudi must have understood why he was being detained ignores what s. 10(a) guarantees and that it is “the right to be informed”. In this particular case, Mr. Messoudi was informed of nothing other than to wait until the investigating police officers arrived. On the facts before this court and applying the legal principles, I am satisfied that Mr. Messoudi was not promptly informed of the reason for his detention and arrest by Officer Avery and as such, there was a violation of Mr Messoudi’s rights under Section 10(a) of the Charter.

[58] As it relates to s. 10(b) of the Charter, it is important to consider the following comments of Iacobucci J. in R. v. Borden, [1994] 3 S.C.R. 145, at page 166:

As this Court has previously stated, the rights in s. 10(a) and 10(b) of the Charter are linked. One of the primary purposes of requiring the police to inform a person of the reasons for his or her detention is so that person may make an informed choice whether to exercise the right to counsel, and if so, to obtain sound advice based on an understanding of the extent of his or her jeopardy…

[59] When Officer Bowyer arrived at the scene where Mr. Messoudi was being detained by Officer Avery, I accept the evidence of Officer Bowyer that he informed Mr. Messoudi of the reasons for his arrest and his right to speak to a lawyer. While Officer Bowyer did not read from the official police script, I am nonetheless satisfied that Officer Bowyer provided Mr. Messoudi with the essential component of his s. 10(b) Charter rights. I am also satisfied that Officer Bowyer informed Mr. Messoudi of these rights immediately upon arriving at the scene and taking over custody of Mr. Messoudi.

[60] As to the exercise of his right to speak to counsel, I am satisfied on the evidence of both Officer Bowyer and Officer Cambria that when Mr. Messoudi was asked whether he wanted to speak to a lawyer and whether he had a lawyer, Mr. Messoudi confirmed that he had a lawyer by the name of Sam Goldstein and that he would wait until he got to the police station to exercise his right to speak to Mr. Goldstein in private.

[61] The Supreme Court of Canada in R. v. Taylor, 2014 SCC 50, confirms that there is a duty on the investigating police officer to inform someone detained of his or her right to counsel “immediately” upon arrest or detention. Furthermore, the arresting officer has a duty to facilitate access to a lawyer immediately upon a request made by someone detained who wants to speak to counsel. On the facts of this case, I am satisfied that Officer Bowyer and Officer Cambia fulfilled the obligations that they had as set forth by the Supreme Court of Canada in Taylor.

[62] Having concluded that there was a violation of Mr. Messoudi’s s. 10(a) rights but not his s. 10(b) rights, engages a consideration of s. 24(2) of the Charter. The breach of Mr. Messoudi’s s. 10(a) rights is a serious breach. I am nonetheless satisfied on the basis of Officer Avery’s evidence that there was no deliberate misconduct on his part. He perceived his role as a member of the ETF was not to do anything other than perform the function of an ETF officer. I accept his evidence that he was legitimately concerned about public safety and as such his failure to inform Mr Messoudi of the reason why he was being detained was at least in part consistent with his training as understood by the RCMP directive Exhibit 4.

[63] Mr. Messoudi was ultimately advised of the reasons for his detention upon the arrival of Officer Bowyer. Put in the context of three individuals fleeing from the scene and the fact that at least one firearm had been discovered, it is important in the Grant analysis to consider these facts in the context of what actually happened in the very fluid 10 or 15 minutes after Mr. Messoudi was detained.

[64] At the beginning of the hearing of these motions the defence abandoned the application as it relates to any infringement of Mr Messoudi’s section 7 and 12 Charter rights. Having found a breach of his section 10 (a) but not his Section 10 (b) rights the court must consider the seriousness of the police conduct; the impact of the Charter breach on Mr Messoudi and the interest society has in the adjudication of this matter on its merits.

[65] The Court of Appeal in R. v. Mann, 2021 ONCA 103 confirmed at para 31 that “it is not up to the police to decide when they will get around to providing rights to a person whom they have arrested. The failure of the police to understand this basic proposition is a serious matter and must be treated as such when it is breached.” While those comments of Doherty JA were made in the context of a breach of section 10 (b) they are also informative as it relates to the Grant analysis in the context of the breach of Mr Messoudi’s section 10 (a) rights. While the failure of Officer Avery to inform Mr Messoudi of the reasons for his detention may not have been maliciously intended nonetheless it was a serious breach of Mr Messoudi’s basic Charter rights.

[66] While the conduct of the police in this case in failing to promptly inform Mr Messoudi of the reasons for his detention was serious, that conduct was not motivated as a result of any deliberate practice as was the case in R. v. Rover, 2018 ONCA 745 where the police intentionally withheld informing the accused of his right to counsel while the police where executing a search warrant. Had I concluded that Officer Avery failed in his responsibility to inform Mr Messoudi of the reasons for his detention because of some systemic failure in RCMP policy the Grant analysis may have been tilted in favour of exclusion.

[67] Mr Messoudi seeks to exclude the evidence of the gun recovered at the scene; the evidence of the controlled delivery and the observations surrounding the controlled delivery. None of this evidence is in any way directly linked to the breach of Mr Messoudi’s Section 10 (a) Charter rights. The discovery of the gun and the evidence as it relates to the controlled delivery exists completely independent of the breach. There is no statement made by Mr Messoudi that is linked to the breach. The approach the Court should follow in these circumstances is set forth in R. v. Pino, 2016 ONCA 389 at para 72 where Laskin JA provides this guidance:

“ Based on the case law, the following considerations should guide a court’s approach to the “obtained in a manner” requirement in s. 24(2) :

• The approach should be generous, consistent with the purpose of s. 24(2)
• The court should consider the entire “chain of events” between the accused and the Police
• The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct
• The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections.
• But the connection cannot be either too tenuous or too remote.”

[68] The evidence which the defence seeks to exclude arises out of observations and seizures that almost exclusively precede his arrest. Mr Messoudi abandoned the evidence which was found at the scene before he was detained. What actually happened at the scene in terms of how the detention and arrest occurred was caused as a result of Mr Messoudi’s own efforts to escape a lawful detention. In my view applying the factors suggested in Pino there is almost no connection between the evidence sought to be excluded and the breach of Mr Messoudi’s Charter right to be informed of the reason for his detention. Without in any way minimizing the impact on Mr Messoudi in the 10-15 minutes he was handcuffed with no explanation for his detention and arrest the evidence then establishes that Officer Bowyer almost immediately upon his arrival at the scene took over the custody of Mr Messoudi at which point he was given his Section 10 (b) Charter rights. Mr Messoudi was offered the chance to speak to his lawyer Mr Goldstein but specifically chose to wait until he was taken to the RCMP police station at the airport.

[69] This is not a case which in any way resembles the facts found in Rover where the failure to implement and provide the accused his section 10 (b) Charter rights was as a result of a deliberate policy on the part of the police. The comments of the Court of Appeal in R. v. Do, 2019 ONCA 482 are more readily applicable on the facts before me where at para 14 the court stated:

[14] However, the Grant factors (from R. v. Grant, [2009] 2 S.C.R. 353, 2009 SCC 32) lead us to a different conclusion than in Pino. In our view the s. 10 (b) breach was not strategic, nor was it serious or systemic. There was no deliberate police practice of the sort described in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135. The impact of the seizure of the house key from the appellant was minimal, because the validly obtained admissible evidence already connected her to the bungalow where the grow-op operated. As evidence, the key was real and reliable. Society has an interest in the appellant’s trial on the merits, which favours the admission of the key.

[70] The evidence that is sought to be excluded if admitted at trial is real evidence that links Mr Messoudi to the firearm and to the drug delivery. It is evidence that is not linked to the breach of his Charter right to be promptly informed of the reasons for his detention. The fact Mr Messoudi chose not to speak to his lawyer until well after he was informed of his right to seek legal counsel is some evidence that the failure to promptly inform him of the reasons for his detention did not have a significant ,if any, direct impact on Mr Messoudi.

[71] I am not satisfied that the facts as found by this court establishes police misconduct that reflects a flagrant disregard of Mr Messoudi’s Charter rights. There was a serious breach of Mr Messoudi’s right to be informed promptly of the reasons for his detention. Nonetheless to exclude the evidence now sought in this application would be quite contrary to society’s interest in having this matter adjudicated on its merits. Mr. Messoudi’s application is, therefore, dismissed.

Regional Senior Justice M.L. Edwards Released: February 22, 2021

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – YOUSSEF MESSOUDI REASONS FOR JUDGMENT Regional Senior Justice M.L. Edwards Released: February 22, 2021