COURT FILE NO.: CR-18-30000602-0000

DATE: 20210406

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

AAMALLAL MOOTOO

Defendant

Anna Gilmer, for the Crown

Aamallal Mootoo, Self-represented

Erin Dann, Amicus Curiae

HEARD at Toronto: March 25, 26, 29, 30, 31 and April 1, 2021

Publication Ban

Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way, pursuant to s. 486.4(1) of the Criminal Code, R.S.C. , 1985, c. C-46.

REASONS FOR DECISION ON VOLUNTARINESS AND s. 10(a) AND (b) OF THE CHARTER

DAVIES J. (Orally)

A. Overview

[1] Mr. Mootoo is charged with eight offences including sexual assault, sexual interference, possession of child pornography, luring a person under the age of 16 for the purpose of facilitating a sexual offence and procuring a person under the age of 18 to engage in prostitution.

[2] It is alleged that Mr. Mootoo met the complainant, H.J., online and communicated with her for a few days before they met in person on March 23, 2017. It is alleged that H.J. was 15 years old at that time. It is alleged that H.J. spent the night at Mr. Mootoo’s apartment. It is alleged that H.J. and Mr. Mootoo continued to communicate through various messaging applications and spoke on the phone in the days after she stayed at his apartment.

[3] On March 30, 2017, H.J. and her sister, K.J., went to the police. H.J. told the police that she was sexually assaulted by someone named “Jay.” H.J. show the police messages she received from “Jay” and gave the police consent to take over her online profile in several messaging applications. Between March 30 and April 19, 2017, the police exchanged hundreds of messages with the person that H.J. said sexually assaulted her. The Crown alleges that Mr. Mootoo is the person who the police were communicating with. The Crown also alleges that the messages and conversations exchanged between H.J. (herself or from her account by the police) and Mr. Mootoo make out the actus reus of possessing child pornography, procuring a person under the age of 18 to engage in prostitution and luring a person under the age of 16 for the purpose of facilitating an sexual offence.

[4] Mr. Mootoo’s trial has not started and he is presumed innocent of all charges. I have summarized the allegations simply to provide context.

[5] Mr. Mootoo was arrested on April 19, 2017. He was taken into custody and gave a statement to police. In the statement, Mr. Mootoo denies knowing H.J. However, he identified himself in still images taken from security video obtained by the police from March 23 and 24, 2017, which the Crown will allege shows H.J. and Mr. Mootoo together in his building and at a mall.

[6] The Crown seeks a ruling that Mr. Mootoo’s police statement is voluntary. Amicus raised several issues about the voluntariness of Mr. Mootoo’s statement and whether the police violated his rights under ss. 10(a) and 10(b) of the Charter. Mr. Mootoo objects to amicus participating in his trial. He did not adopt or endorse the submissions amicus made on this application. Mr. Mootoo also chose not make any substantive submissions on this application but confirmed that he wants his statement to be excluded. For the reasons that follow, I find that the police breached Mr. Mootoo’s rights under ss. 10(a) and 10(b) of the Charter and his statement is not admissible under either the voluntariness rule or s. 24(2) of the Charter.

B. Factual Overview

[7] The police planned Mr. Mootoo’s arrest for April 19, 2017. The officer in charge of the investigation, Detective Constable Braganza, held a briefing that day with the officers from the Youth and Family Violence Bureau, the Major Crimes Unit and a Primary Response Unit who would be involved in Mr. Mootoo’s arrest. The plan was that Mr. Mootoo would be arrested by the officers from the Major Crimes Unit and then turned over to the uniformed officers for transport back to 41 Division.

[8] I heard conflicting evidence about what Det. Cst. Braganza said at the briefing about the charges Mr. Mootoo should be arrested for. Det. Cst. Garrity testified that Det. Cst. Braganza said that Mr. Mootoo was to be arrested on charges of sexual assault, sexual interference and procuring. Det. Cst. Lee testified that they were told that Mr. Mootoo was being investigated and arrested for sexual assault and sexual interference. Det. Cst. Lee testified they were not told about a procuring charge. Police Constable Stratton testified they were told that Mr. Mootoo was arrestable for sexual assault and procuring. P.C. Haghshanes testified that they were told that Mr. Mootoo was arrestable for domestic assault. He also testified that he knew this was a sexual assault case so his notes of the briefing may be inaccurate.

[9] Despite the conflicting evidence on this point, I am satisfied that Det. Cst. Braganza told those present at the briefing that Mr. Mootoo was being arrested for sexual assault, sexual interference and procuring. This is confirmed by the content of the search warrant that was obtained earlier on April 19, 2017 by Det. Cst. Wester. The charges listed in the warrant are sexual assault, sexual interference and procuring a person under the age of 18 to engage in prostitution related offences

[10] Det. Cst. Lee arrested Mr. Mootoo shortly at 5:18 p.m. in the parking lot of Cedarbrae Mall. Det. Cst. Lee told Mr. Mootoo he was under arrest for sexual assault and sexual interference. Det. Cst. Lee also advised Mr. Mootoo of his right to counsel and his right to remain silent. Mr. Mootoo said he wanted to speak to a lawyer. Det. Cst. Lee told Mr. Mootoo that someone would make arrangements for him to speak to a lawyer as soon as practicable.

[11] Mr. Mootoo was turned over to P.C. Stratton at 5:30 p.m. P.C. Stratton was working in a uniformed capacity that day with his partner, P.C. Haghshanes. P.C. Stratton put Mr. Mootoo in the back of their marked police cruiser. P.C. Haghshanes advised Mr. Mootoo of his right to counsel. Mr. Mootoo again said he wanted to speak to a lawyer. P.C. Haghshanes also told Mr. Mootoo that he did not have to say anything in response to the charges but if he did say anything that could be used against him. P.C. Haghshanes also told Mr. Mootoo that if he had spoken to any other officer about the investigation, that conversation should not influence his decision whether to make a statement. P.C. Haghshanes testified that when he read the cautions to Mr. Mootoo, he told him that he was being charged with sexual interference. He could not recall if he mentioned any other charge during the caution.

[12] P.C. Stratton and P.C. Haghshanes drove Mr. Mootoo to 41 Division. They arrived at 5:45 p.m. Mr. Mootoo was paraded before the Sergeant at 6:13 p.m. During the booking process, in Mr. Mootoo’s presence, P.C. Stratton told the Sergeant that Mr. Mootoo was under arrest for “sexual assault, sexual interference and procuring.” P.C. Stratton told the Sergeant that Mr. Mootoo had been advised of his right to counsel and wanted to speak to a lawyer. The Sergeant told Mr. Mootoo that if he had any questions about the charges or the allegations, he should speak to the investigating officer.

[13] Mr. Mootoo was placed in a holding cell in the Youth and Family Violence Unit. Neither P.C. Stratton nor P.C. Haghshanes made any effort to put Mr. Mootoo in touch with a lawyer. Rather, they left to help with the execution of the search warrant at Mr. Mootoo’s apartment. There is no evidence that P.C. Stratton or P.C. Haghshanes told any other officer involved in the investigation that Mr. Mootoo wanted to speak to a lawyer but had not been given an opportunity to do so.

[14] Det. Cst. Wester left a message for duty counsel on Mr. Mootoo’s behalf at 7:12 p.m., almost two hours after he was first advised of his right to counsel and said he wanted to speak to a lawyer. Duty counsel called back at 7:54 p.m. and Mr. Mootoo was finally given an opportunity to speak to counsel.

[15] Det. Cst. Braganza returned to 41 Division after executing the warrant at Mr. Mootoo’s apartment at 8:25 p.m. and at 10:10 p.m. he took a statement from Mr. Mootoo.

C. Voluntariness

[16] A statement made by an accused person to a person in authority is inadmissible unless the Crown can establish beyond a reasonable doubt that it is voluntary: R. v. Spencer, 2007 SCC 11 at paras. 11 - 13. To decide if Mr. Mootoo’s statement is voluntary, I must consider all the circumstances, including whether any threats or promises were made to Mr. Mootoo, whether the circumstances in which he was detained were oppressive, whether the police engaged in any form of trickery to obtain a statement from him and whether he had an operating mind when he gave his statement: R. v. Oickle, 2000 SCC 38 at paras. 47 - 67. If the police breached Mr. Mootoo’s rights under s. 10(a) or 10(b) of the Charter, that could also undermine the voluntariness of his statement: R. v. Sinclair, 2010 SCC 35 at paras. 24 - 26 and R. v. Azonwanna, 2020 ONSC 5416 at para. 116. The purpose of s. 10(a) of the Charter is to inform the detainee of the extent of their jeopardy so they can meaningfully exercise their right to counsel. And the purpose of s. 10(b) of the Charter is to allow the detainee to get legal advice so they can make an informed decision whether to waive their right to silence and give a statement to the police.

[17] I heard from all the officers who had contact with Mr. Mootoo after his arrest on April 19, 2017. I also saw recordings of Mr. Mootoo being booked in at 41 Division and his interview with Det. Cst. Braganza. There is also a video of Mr. Mootoo in the back of the police cruiser during the drive from Cedarbrae Mall to 41 Division. Unfortunately, the in-car video has no audio. Mr. Mootoo can be seen speaking to P.C. Stratton and P.C. Haghshanes during the first few minutes of the video but their conversation was not captured. Neither officer could remember what they talked to Mr. Mootoo about but they both testified that they did not threaten Mr. Mootoo or offer him anything in exchange for giving a statement.

[18] In April 2017, it was standard protocol in the Toronto Police Service to record a suspect during transport. I heard evidence about how the recording system in the cruiser works. There is one button that turns on both the video and audio recording. Once the system is activated, it is possible to mute the microphone so the in-car audio is not recorded. P.C. Haghshanes testified that he activated the recording equipment when Mr. Mootoo was placed in the back of their cruiser. P.C. Haghshanes testified that the system appeared to be in working order. He cannot explain why there is no audio on the recording of Mr. Mootoo in the cruiser. Both P.C. Stratton and P.C. Haghshanes testified that they thought an audio recording was being made in the car when they transported Mr. Mootoo to 41 Division. Mr. Mootoo suggested to P.C. Stratton that Det. Cst. Braganza had instructed them not to record the audio of Mr. Mootoo during transportation. P.C. Stratton denied that suggestion. I find that the lack of audio from Mr. Mootoo’s transport to 41 Division was an inadvertent or technical error. I accept the evidence of P.C. Stratton and P.C. Haghshanes that they thought their conversation with Mr. Mootoo was being recorded during the drive.

[19] I also accept the evidence from all the officers involved in Mr. Mootoo’s arrest that they did not threaten him or make any promises to him or offer him anything in exchange for giving a statement.

[20] I find that the circumstances in which Mr. Mootoo gave his statement were not oppressive. I appreciate that Mr. Mootoo was in police custody for approximately 5 hours before he gave his statement. However, a 5-hour delay without more does not constitute oppression. Mr. Mootoo was provided with food and water during that time and an opportunity to use the washroom as necessary. Det. Cst. Braganza conducted the interview in a calm, respectful manner in a comfortable environment. Det. Cst. Braganza was not aggressive or intimidating in his questions.

[21] There is also no evidence that the police engaged in any form of trickery with Mr. Mootoo. Det. Cst. Braganza described the types of evidence they had gathered during their investigation. He did not mislead Mr. Mootoo in any way about the nature or strength of the evidence against him. Finally, it is clear from watching the video that Mr. Mootoo had an operating mind throughout the statement.

[22] The real issue is whether Mr. Mootoo’s Charter rights were breached and, if so, whether those breaches raise a reasonable doubt about the voluntariness of Mr. Mootoo’s statement or otherwise justify the exclusion of his statement under s. 24(2) of the Charter.

D. Right to be advised of the reason for detention

[23] Section 10(a) of the Charter guarantees arrested people the right to be informed promptly of the reason for their arrest. The purpose of s. 10(a) of the Charter is two-fold: it allows the arrested person to make a reasonable decision about whether to submit to his arrest and it ensures he can meaningfully exercise his right to counsel under s. 10(b) of the Charter; R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869 at pp. 886-888. Section 10(a) has been interpreted purposively with its dual purpose in mind. The focus is on what the accused would reasonably have understood, not the precise language used by the police. For example, the police are not required to tell the accused the technical charges they may ultimately face. Rather, the police must to give the accused information that is “sufficiently clear and simple to enable them to understand the reason for their detention and the extent of their jeopardy”: R. v. Roberts, 2018 ONCA 411 at para. 87.

[24] The Crown acknowledges that Mr. Mootoo was not initially told the full reasons for his arrest. Det. Cst. Lee did not tell Mr. Mootoo he was under arrest for procuring a person under the age of 18 to engage in prostitution. He only told Mr. Mootoo he was under arrest for sexual assault and sexual interference. P.C. Haghshanes did not tell Mr. Mootoo he was under arrest for procuring a person under the age of 18 to engage in prostitution either. When P.C. Haghshanes cautioned Mr. Mootoo, he told him he was under arrest for sexual interference.

[25] However, the Crown argues that the police fulfilled their obligation under s. 10(a) of the Charter when P.C. Stratton told the Sergeant at 41 Division, in Mr. Mootoo’s presence, that Mr. Mootoo was under arrest for “sexual assault, sexual interference and procuring.” The Crown argues that this was enough to ensure Mr. Mootoo understood the extent of his jeopardy and could meaningfully exercise his right to counsel. I disagree.

[26] The charge of procuring a person under the age of 18 to offer sexual service for money or other consideration was the most serious charge Mr. Mootoo was facing at the time of his arrest. Under s. 268.3 of the Criminal Code, procuring a person under the age of 18 to engage in prostitution has a five-year mandatory minimum sentence.

[27] In this case, P.C. Stratton uttered the word “procuring” once in Mr. Mootoo’s presence during the booking process. Many criminal offences, such as murder, theft or assault, can be accurately described using a single word that is widely understood. However, the word “procuring” does not, on its own, meaningfully describe the offence Mr. Mootoo was facing. Procure simply means to obtain something through effort, or to persuade or cause someone to do something. It is not an offence to simply procure something or convince someone to do something. Police and criminal lawyers understand the term “procuring” as shorthand for the offence of procuring someone to engage in prostitution under s. 286.3 of the Criminal Code. However, simply uttering the word “procuring” is not enough to explain to a layperson what criminal conduct he was alleged to have committed or the jeopardy he was facing. Using that one, non-descriptive word was not sufficiently clear and simple to ensure Mr. Mootoo understood he was under arrest for trying to convince someone under the age of 18 to engage in prostitution.

[28] At the end of the booking process, Mr. Mootoo was told that if he had any questions about the charges he should speak to the investigating officer. Mr. Mootoo was not given an opportunity to ask Det. Cst. Braganza about the charges before he spoke to duty counsel.

[29] The first opportunity Mr. Mootoo had to ask Det. Cst. Braganza about the charges was during his interrogation. Det. Cst. Braganza started the interview by asking Mr. Mootoo what the other officers told him about the charges. Mr. Mootoo said that the officers told him that he was being arrested for something sexual. Det. Cst. Braganza then says the following to Mr. Mootoo:

Okay. Okay. So the actual charges are sexual assault, sexual interference, interference, basically is in regard to someone below the age of 18 … regarding the sexual interference charges. And a procuring or luring a person under the age of 18. That has to do with engaging someone, um, social media or… computer device, or whatever … for the purpose of actively engaging and participating, um, to receive services and that kind of stuff.

[30] Det. Cst. Braganza’s explanation of the charges was incomplete and inaccurate. Det. Cst. Braganza conflated procuring and luring. He then seems to provide an incomplete definition of luring, which was not one of the three charges Mr. Mootoo was arrested for. Det. Cst. Braganza does not explain the procuring charge to Mr. Mootoo at all. In fact, Det. Cst. Braganza never explained the procuring charge to Mr. Mootoo even though they came back to the topic of the charges several times during the interview.

[31] After Det. Cst. Braganza’s incomplete explanation of the charges, he asked Mr. Mootoo if he had any other questions. Mr. Mootoo then asks, “so it’s, it’s, -- there are three charges I have?” Det. Cst. Braganza confirms there are three charges. Mr. Mootoo then asks if the sexual assault charge means that he touched someone. Det. Cst. Braganza responds, “Exactly. So both of them, basically, either you know, you ask someone to touch you, or you touch someone.” Det. Cst. Braganza did not clarify what he meant by “both of them”. Nor did he mention the procuring charge in response to Mr. Mootoo’s questions about the three charges.

[32] Later in the interview, Mr. Mootoo says that he does not fully understand what the charges are about because he has never been charged with a sex crime before. He said he was “stumped” when the arresting officers told him it was “sexual assault, or some sex offence.” Mr. Mootoo said “I don’t know if like the charge had something to do with having, having sex.” Det. Cst. Braganza responded, “Like sexual assault … doesn’t necessarily … mean sex.”

[33] Eventually, Det. Cst. Braganza told Mr. Mootoo what he thought happened. He said the complainant went over to Mr. Mootoo’s apartment, they smoked some marijuana “and then the sexual assault took place.” Mr. Mootoo responded, “I don’t understand what you mean, sexual assault though. What do you mean?” Det. Cst. Braganza said that the complainant said Mr. Mootoo had touched her on her breast and her leg and rubbed her inner thigh. Mr. Mootoo denied that he knew the complainant and said, “at least I have an idea now of where this is coming from…. And idea of the magnitude of this.” Mr. Mootoo said that he was relieved that nobody was accusing him of rape. Det. Cst. Braganza responded, “This is not rape though…this is touching.” During his description of the allegations, Det. Cst. Braganza did not tell Mr. Mootoo he thinks Mr. Mootoo tried to convince the complainant to engage in prostitution.

[34] At the very end of the interview, Mr. Mootoo again asks the officer about the charges. He says:

So the point is, it could be these girl, I’m not saying that’s not me, yeah, I went to the mall, yeah, there’s a lot of girls there behind me and in front of me, okay, but that’s a long way from sexual assault and what’s the other charge -, two other charges? Luring, and what’s the other one?

[35] Det. Braganza responds by saying, “sexual interference.” Mr. Mootoo asks what sexual interference is and Det. Braganza explains that it involves touching someone under the age of 16. Again, Det. Cst. Braganza does not correct Mr. Mootoo’s misunderstanding of the charges or explain the procuring charge to him.

[36] Det. Cst. Braganza never accurately explained the charge of procuring a person under the age of 18 to engage in prostitution. He never says the word prostitution or suggested that there is an allegation that Mr. Mootoo tried to convince the complainant to engage in prostitution or offered to be her pimp. I find that Mr. Mootoo’s rights under s. 10(a) were violated because he was not informed in clear and simple language that he was under arrest for procuring a person under the age of 18 to engage in prostitution, which was the most serious charge he was facing at the time of his arrest.

[37] The Crown suggests that if Mr. Mootoo had questions about the procuring charge after he heard P.C. Stratton tell the Sergeant that was one of his charges, he could have asked duty counsel. In my view, the fact that Mr. Mootoo spoke to duty counsel and could have asked questions does not cure the s. 10(a) violation. The duty was on the police, not duty counsel, to ensure that Mr. Mootoo understood the charges he was facing and the full extent of his jeopardy.

E. Right to Counsel

[38] Section 10(b) of the Charter imposes two duties on the police. First, the police must inform the detainee of his right to retain and instruct counsel immediately after the arrest or detention. Second, if the detainee asks to speak to counsel, the police must provide him with an opportunity to speak to counsel at the first reasonably available opportunity: R. v. Suberu, 2009 SCC 33 at para. 38, R. v. Taylor, 2014 SCC 50 at para. 24.

[39] Det. Cst. Lee advised of Mr. Mootoo of his rights to counsel as soon as he was arrested. Mr. Mootoo first asserted his right to counsel shortly after his arrest at 5:18 p.m. He asserted his right to counsel a second time when he was turned over to P.C. Stratton and P.C. Haghshanes at 5:30 p.m. A call was not made to duty counsel on Mr. Mootoo’s behalf until 7:12 p.m., almost two hours after he first said he wanted to speak to a lawyer. Duty counsel called back at 7:54 pm and Mr. Mootoo was then given an opportunity to speak to counsel.

[40] The burden is on the Crown to show that any delay in implementing the right to counsel was reasonable in the circumstances. The Crown concedes and I find that the police breached Mr. Mootoo’s right to counsel because they did not give him an opportunity to speak to counsel at the first reasonably available opportunity when he got to 41 Division.

F. Exclusion of the Evidence

[41] Amicus argued that if I find that Mr. Mootoo’s rights ss. 10(a) and (b) of the Charter were violated, that could raise a reasonable doubt as to the voluntariness of his statement. In the alternative, his statement should be excluded under s. 24(2) of the Charter.

[42] The Crown argues that any Charter violations in this case should not undermine the voluntariness of Mr. Mootoo’s statement. The Crown also argues that the violations are not serious and had minimal impact on Mr. Mootoo’s Charter-protected rights and, as a result, his statement should not be excluded under s. 24(2) of the Charter. I disagree. Whether conceived of as raising a reasonable doubt as to voluntariness or whether considered under s. 24(2) of the Charter, I find that the statement of Mr. Mootoo is not admissible in this case.

[43] Section 24(2) of the Charter says that evidence obtained in a manner that violates the Charter must be excluded if the admission of the evidence would bring the administration of justice into disrepute. When deciding whether the admission of evidence would bring the administration of justice into disrepute, I must consider and balance three factors: the seriousness of the Charter-infringing state conduct, the impact of the breaches on Mr. Mootoo’s Charter-protected rights, and society’s interest in the adjudication of this case on its merits: R. v. Grant, 2009 SCC 32.

[44] In 2009, the Supreme Court of Canada re-considered the test for the exclusion of evidence under s. 24(2) of the Charter in R. v. Grant. Under the pre-Grant test, courts almost always excluded statements obtained in violation of the Charter. In Grant at para. 92, the Court expressly held that even under the new test, there remains a “presumptive general, although not automatic, exclusion of statements obtained in breach of the Charter.” The Court provided the following summary, at para. 98, of how statements obtained in violation of the Charter should be considered under the new framework under s. 24(2):

In summary, the heightened concern with proper police conduct in obtaining statements from suspects and the centrality of the protected interests affected will in most cases favour exclusion of statements taken in breach of the Charter, while the third factor, obtaining a decision on the merits, may be attenuated by lack of reliability. This, together with the common law’s historic tendency to treat statements of the accused differently from other evidence, explains why such statements tend to be excluded under s. 24(2).

(i) Seriousness of the Charter-infringing state conduct

[45] The primary concern under this part of the test is to preserve public confidence in the rule of law. The focus of the analysis will be on the gravity of the police conduct that resulted in a Charter violation. Charter violations that are the result of willful or reckless disregard for the rights of an accused person are particularly serious and risk bringing the administration of justice into disrepute. On the other hand, the admission of evidence obtained through a minor or inadvertent Charter breach may not undermine public confidence in the administration of justice: Grant, at paras. 72- 75.

[46] The Crown argues that the violations under s. 10(a) and (b) in this case were minor or inadvertent. The Crown also argued that any violation was the result of a lack of communication between the officers rather than bad faith or negligence.

[47] In my view, the Charter violations in this case were serious and reflect a real disregard for Mr. Mootoo’s rights.

[48] Mr. Mootoo’s arrest was planned for April 19, 2017. A briefing was held to discuss how and where he would be arrested. The Major Crime Unit officers, who would affect Mr. Mootoo’s arrest, were instructed to seize Mr. Mootoo’s phone and to ensure it did not turn off or lock so Det. Cst. Braganza could search the phone incident to his arrest.

[49] I am troubled by the fact that facilitating Mr. Mootoo’s right to counsel was not part of the plan for his arrest and was not part of the briefing. Det. Cst. Wester explained that they did not create a plan for implementing Mr. Mootoo’s rights to counsel because they did not know for certain that he would be arrested. I do not accept this explanation. Det. Cst. Braganza gave significant thought to how Mr. Mootoo would be arrested and how to preserve relevant evidence on Mr. Mootoo’s phone without knowing for certain that Mr. Mootoo would be arrested that day. Complying with Mr. Mootoo’s Charter rights should have been part of the plan as well.

[50] I am also troubled by the fact that none of the officers involved in Mr. Mootoo’s arrest seemed to think it was their responsibility to put Mr. Mootoo in touch with counsel. Everyone assumed that someone else would facilitate Mr. Mootoo’s right to counsel. This is more than a lack of communication. It shows a lack of concern for Mr. Mootoo’s Charter rights.

[51] P.C. Stratton explained that he did not put Mr. Mootoo in touch with counsel because he had been detailed to assist with the execution of the search warrant at Mr. Mootoo’s apartment. P.C. Stratton testified that he did not know who was responsible for facilitating Mr. Mootoo’s right to counsel. He thought someone from the Youth and Family Violence Unit would put Mr. Mootoo in touch with counsel.

[52] P.C. Haghshanes testified that he did not think he was responsible for putting Mr. Mootoo in touch with counsel. He testified there were other officers involved in the investigation so he did not facilitate Mr. Mootoo’s right to counsel.

[53] Det. Cst. Wester’s testified that the investigative team had limited resources on April 19, 2017. She and Det. Cst. Braganza decided to prioritize executing the warrant at Mr. Mootoo’s apartment because the warrant expired at 11:59 p.m. that evening. Det. Cst. Wester testified that the arresting officers were needed to help execute the warrant at Mr. Mootoo’s apartment so they were not available to facilitate his right to counsel. Det. Cst. Wester acknowledged that arresting officers are usually responsible for facilitating the detainee’s right to counsel.

[54] Det. Cst. Wester testified she does not recall when or from whom she learned that Mr. Mootoo had not spoken to counsel. She testified that she might have learned that as she was entering information into the Versadex case file. She testified that as soon as she realized, she called duty counsel on his behalf.

[55] In essence, Det. Cst. Wester’s explanation was that they did not have enough officers to execute the warrant at Mr. Mootoo’s apartment and implement Mr. Mootoo’s right to counsel in a timely fashion. This is not a reasonable explanation for a 2 hours delay in putting Mr. Mootoo in touch with counsel. Section 10(b) guaranteed Mr. Mootoo the right to access a phone to speak to duty counsel at the first reasonable opportunity, which was when the booking process at 41 Division was completed at 6:18 p.m. As the Court of Appeal for Ontario held in R. v. Rover, 2018 ONCA 745 at para. 33, “Police efficiency and convenience cannot justify delaying an arrested person’s right to speak with counsel for several hours.” In my view, the fact that the investigators prioritized furthering the investigation shows a clear disregard for Mr. Mootoo’s Charter rights, which tends to increase the seriousness of the breaches.

[56] I have already found that Mr. Mootoo was never properly advised of the reasons for his arrest. It was Det. Cst. Braganza’s obligation to ensure the arresting officers clearly understood the reason for Mr. Mootoo’s arrest. The arresting officers also had an obligation to ensure they understood the full extent of the charges Mr. Mootoo was facing so they could explain them to him in clear and simple language. None of the officers involved in Mr. Mootoo’s arrest or transport explained the charges to him accurately. Even when Det. Cst. Braganza reviewed the charges with Mr. Mootoo during his interrogation, he did not do so in a clear and accurate way. Again, this shows a repeated disregard for the importance of Mr. Mootoo’s Charter protected rights.

[57] The breaches in this case are not minor or technical. They tend towards to serious end of the scale, which points towards the exclusion of the statement.

(ii) Impact of the Breaches on Mr. Mootoo’s Charter-Protected Interest

[58] The impact of Charter breaches can range from fleeting or technical on one end of the spectrum to profound on the other end.

[59] There is a connection between the breaches of Mr. Mootoo’s rights under s. 10(a) and 10(b) of the Charter that tends to increase the impact those breaches had on his Charter-protected interests. As set out above, Mr. Mootoo could only meaningfully exercise his right to counsel if he was properly informed in clear and simple language of the reasons for his arrest and the extent of their jeopardy: Evans at p. 886 - 888, R. v. Nguyen, 2008 ONCA 49 at para. 20. The purpose of s. 10(b) is to ensure Mr. Mootoo got the advice he needed to make an informed decision whether to waive his right to silence and give a statement to the police. Working together, ss. 10(a) and 10(b) of the Charter are both essential components of protecting a detainee’s right against self-incrimination. Here, Mr. Mootoo was not given adequate information about the reason for his arrest and the extent of his jeopardy. He, therefore, was unable to meaningfully exercise his right to counsel and get the advice and guidance he needed. In R. v. Nguyen, the Court of Appeal held that, at para. 21, “where the informational component of s. 10(a) of the Charter is easy to fulfill – as it was in this case – the breach of the obligation to provide that information cannot be considered a trivial matter.”

[60] Mr. Mootoo was also denied access to counsel for more than two hours after he first said he wanted to speak to a lawyer. The Court of Appeal described the harm that is caused by the police failure to immediately implement a detainee’s right to counsel in R. v. Rover at paras. 45 - 46:

The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.

In this case, instead of providing the appellant with the lifeline to counsel when he requested it, the police put him in the cells. The appellant was held for several hours without any explanation for the police refusal of access to counsel, and without any indication of when he might be allowed to speak to someone. His right to security of the person was clearly compromised. The significant psychological pressure brought to bear on the appellant by holding him without explanation and access to counsel for hours must be considered in evaluating the harm done to his Charter-protected interests.

[61] I find that the combination of the Charter violations in this case had a significant impact on Mr. Mootoo’s Charter-protected rights to timely and meaningful access to counsel. This factor also tends to favour the exclusion of Mr. Mootoo’s statement. The fact that Mr. Mootoo was eventually given an opportunity to speak to counsel does not minimize the impact of the delay in implementing his rights under s. 10(b), particularly in light of the fact that his rights under s. 10(a) were also violated: R. v. Noel, 2019 ONCA 860 at para. 33

(iii) Society’s Interest in the adjudication of the case on its merits

[62] The third line of inquiry under s. 24(2) of the Charter asks whether the truth-seeking function of a criminal trial is better served by admitting or excluding the evidence. To answer this question, the court will consider the reliability of the evidence and the importance of the evidence to the Crown’s case. The exclusion of reliable evidence could undermine the truth-seeking function of a criminal trial and bring the administration of justice into disrepute. Similarly, the exclusion of evidence that is crucial to the Crown’s case could bring the administration of justice into disrepute: Grant at paras. 79 - 83.

[63] The Court can also consider the seriousness of the charges but this factor cuts both ways as the Supreme Court explained in Grant, at para. 84:

… [W]hile the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.

[64] The charges against Mr. Mootoo are extremely serious. He is charged with several sexual offences involving a 15 year-old complainant. Society has a very strong interest in a resolution of this case on its merits.

[65] Mr. Mootoo’s statement is also important part of the Crown’s case on the issue of the identity of the person who is alleged to have sexually assaulted H.J. Mr. Mootoo identifies himself in several still shots taken from surveillance video taken on the day of the alleged sexual assault that purportedly shows Mr. Mootoo with the complainant in his apartment building. However, the exclusion of his statement will not gut the Crown’s case. The Crown has other evidence relevant to the issue of identity.

[66] The issue of the reliability of Mr. Mootoo’s statement in more complicated. Unlike real evidence, an accused person’s statement to the police may or may not be reliable. In Grant, at para. 97, the Supreme Court of Canada commented on the reliability of statements obtained in violation of an accused person’s right to counsel:

Detained by the police and without a lawyer, a suspect may make statements that are based more on a misconceived idea of how to get out of his or her predicament than on the truth. This danger, where present, undercuts the argument that the illegally obtained statement is necessary for a trial of the merits.

[67] There is at least a risk that by repeatedly denying he knew or had ever met H.J., Mr. Mootoo was more focused on getting out of his predicament than telling the truth. This would tend to undermine the reliability of his statement to some degree. However, it may not undermine the reliability of the statements he made confirming his identity in the security video. Suffice to say that unlike a piece of real or physical evidence, Mr. Mootoo’s statement is not inherently reliable. While the third factor favours the admission of Mr. Mootoo’s statement because of the seriousness of the charges and the importance of the evidence to the Crown’s case, society’s interest in a decision on the merits is somewhat attenuated by my concerns about the reliability of Mr. Mootoo’s statement.

G. Conclusion

[68] On balance, I find that the admission of Mr. Mootoo’s statement, which was obtained in violation of his rights under ss. 10(a) and 10(b) of the Charter, would bring the administration of justice into disrepute. I also find that the violations of Mr. Mootoo’s rights under s. 10(a) and 10(b) raise a reasonable doubt as to the voluntariness of his statement. Mr. Mootoo’s statement is, therefore, inadmissible.

Davies J.

Oral Reasons Delivered: April 6, 2021

Written Reasons Released: April 9, 2021