Introduction

[1] The defendant Sami Hamid is charged with possession of a loaded prohibited firearm – a handgun and one related offence. Following what the Crown alleges was an investigative detention of Mr. Hamid, which occurred during the course of police executing a search warrant at Unit 3008 (the “Unit”) at 181 Wynford Drive, Toronto (the “Building”), police found a handgun in a satchel Mr. Hamid was carrying and arrested him as a result.

[2] In advance of his trial Mr. Hamid brought this application to exclude all the seized evidence, alleging breaches of his rights under ss. 8, 9, and 10 of the Charter of Rights and Freedoms. The Crown brought a cross-application for an order that oral statements alleged to have been made by Mr. Hamid to police before his arrest were made voluntarily and thus will be admissible at his trial.

[3] These applications were heard entirely by Zoom with the consent of the parties. The Crown called four police officers involved in the execution of the search warrant and the arrest and search of Mr. Hamid. Mr. Hamid testified and called the target of the search warrant, the person he was with when he was detained, Leeban Abdi along with four witnesses who gave evidence about the condition of the entrance door to the Unit which became an important issue on the applications. Photographs taken during and after the search were entered into evidence along with a video of the inside of the elevator used by Mr. Hamid and his friend, Mr. Abdi, to get up to the 30^th floor, which was shown by both counsel multiple times (the “Elevator Video”).

The Issues

[4] It is the position of Mr. Aly, counsel for Mr. Hamid, that the police did not have grounds for an investigative detention or grounds to search the satchel he was carrying. As such, his detention breached his s. 9 Charter rights, and the search of the satchel was unreasonable and contrary to s. 8 of the Charter. It is also his position that Mr. Hamid’s s. 10(a) Charter rights were breached by the police as they did not advise him of his rights to counsel (“RTC”) when he was detained. As a result of these Charter breaches, it is the position of Mr. Hamid that the evidence seized; namely the firearm, magazine, ammunition, and identification documents found in the satchel he was carrying should be excluded pursuant to s. 24(2) of the Charter.

[5] The position of Mr. Enright, counsel for the Crown, is that the police had grounds to detain Mr. Hamid for an investigative detention, particularly as they were searching the Unit for a firearm and that his detention and search incident to that detention was therefore lawful. It is his position that Mr. Hamid was advised of his RTC at the time of the detention and that there was no breach of any of his Charter rights. Mr. Enright submits in the alternative that if any of Mr. Hamid’s Charter rights were breached, no evidence should be excluded pursuant to s. 24(2) of the Charter.

[6] On the issues of whether the initial detention of Mr. Hamid was justified, whether or not he was advised of his RTC before he was transported to the police station, and whether or not he made the statements the Crown relies upon, the position and evidence of the Crown stands in stark contrast to that of the Defence. There is no middle ground between these opposing positions.

[7] Mr. Enright submits, based on the evidence of the officers, that while police were executing a search warrant for a firearm in the Unit, Mr. Hamid and Mr. Abdi stepped off the elevator on the 30^th floor and began walking towards the Unit. Mr. Abdillahi, who was already detained and inside the Unit, began yelling through the open door at the advancing pair and Mr. Abdi responded. They were speaking in a language the officers did not understand. It is the position of the Crown that Detective Constable (“DC”) Chris Miller, who testified that he was in the doorway of the Unit, and DC Adam McKnight, who had been searching inside the Unit, and came out when he heard the yelling, believed that the advancing pair were connected to the gun offence under investigation[^1]. These officers detained Messrs. Hamid and Abdi, they were advised of the reasons for their detention, brought into the Unit and handcuffed, and Mr. Hamid was advised of his RTC and was pat-down searched for safety reasons. During that search a handgun was found in a satchel Mr. Hamid was carrying.

[8] The position of the Defence is that both officers Miller and McKnight were in the hallway outside the Unit and that the door to the Unit was closed. When Mr. Hamid and Mr. Abdi exited the elevator, they were immediately arrested because they were young black males. The Defence asserts that there was no conversation between Mr. Abdillahi and Mr. Abdi outside the Unit, that Mr. Hamid and Mr. Abdi were not told by the officers why they were being detained and that Mr. Hamid was not given his RTC while he was detained in the Unit although he did ask that he be permitted to call his lawyer, Mr. Aly. In addition, save for one statement Mr. Hamid denies making the statements that the officers allege he made.

[9] Counsel agree on the applicable legal principles and for that matter how the law should be applied to the facts. If I accept the evidence called by the Crown, then there is no dispute that the conduct of the officers was Charter compliant and the application alleging a breach of Mr. Hamid’s Charter rights will be dismissed. It is agreed that the onus is on the Crown to establish on a balance of probabilities that Mr. Hamid’s detention and the search of the satchel was lawful. As the matter was argued before me, the issues focused on the lawfulness of the detention. Mr. Aly did not argue that if Mr. Hamid was lawfully detained that the search of the satchel was unlawful.

[10] Mr. Enright fairly conceded that in terms of anchoring the foundation for the investigative detention, the yelling-out by Mr. Abdillahi at Mr. Abdi and Mr. Hamid, as they approached the Unit, is a necessary component to the grounds to detain. He concedes that without that fact, the officers would not have had grounds to detain Mr. Hamid and Mr. Abdi in the hallway. For reasons that I will explain, Mr. Enright also very fairly conceded that if I find that DC Miller’s legs can be seen on the Elevator Video, as alleged by Mr. Hamid, just a few seconds after Mr. Hamid exited the elevator and as Mt. Hamid was standing a couple of feet outside the elevator, then Mr. Hamid was not lawfully detained and searched.

[11] Although the Defence initially alleged a breach of s. 10 (b) of the Charter, Mr. Aly did not argue that if RTC were given, that there was an undue delay in the implementation of Mr. Hamid’s RTC. Again, the issue is a factual one – was Mr. Hamid advised of his RTC at the time of his detention? The onus on the Defence is to establish on a balance of probabilities that RTC were not given and that therefore there was a breach of his s. 10(a) Charter rights.

[12] As for the Crown’s application, as already stated, Mr. Hamid disputed making all but one of the statements to police that the Crown asserts he made. There is no dispute that at trial, the onus will be on the Crown to prove that the statements were in fact made, but counsel agreed that that would ultimately be an issue for the trier of fact at trial. Therefore, the only issue before me on the Crown’s application is whether the Crown has proven beyond a reasonable doubt that the alleged statements, if made by Mr. Hamid, were made voluntarily.

[13] For these reasons the central issue before me is to determine what in fact occurred when Mr. Hamid and Mr. Abdi stepped off the elevator. My findings of fact will determine the outcome of these applications. In particular, I must determine if the door to the Unit was open and whether Mr. Abdillahi yelled in Somali to Mr. Abdi. I must also determine where officers Miller and McKnight were when they first detained Messrs. Hamid and Abdi and what happened up to the point of the detention of Mr. Hamid. Those finding of fact will depend on my assessment of the reliability and credibility of the police witnesses on the one hand and the Defence witness on the other. They will also depend to a large extent on what I find that I can see on the Elevator Video in the fraction of a second that the Defence alleges shows DC Miller’s legs on the right side of Mr. Hamid.

[14] If on the other hand, I accept the evidence called by the Crown, then there is no dispute that the conduct of the officers was Charter compliant and the applications alleging a breach of Mr. Hamid’s Charter rights will be dismissed. The same is true for the issue of whether RTC were given to Mr. Hamid. Accordingly, there is no need to set out the relevant legal principles as this application is determined by my findings of fact.

[15] The issues therefore are:

a) Has the Crown proven that Mr. Hamid’s detention and search of his satchel was lawful?

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

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

d) Has the Crown proven beyond a reasonable doubt that the alleged statements made by Mr. Hamid were made voluntarily?

The Evidence and preliminary findings of fact

The uncontested facts

[16] The Guns and Gangs Task Force (“Guns and Gangs”) from the Toronto Police Service (“TPS”) obtained a search warrant to search the Unit for a firearm. Prior to attending the Unit, DC Annetts arranged for the Unit to “cleared” by the Emergency Task Force (“ETF”) because the search was high risk since they were searching for a firearm. ETF attended the Unit at 4:30 p.m. on November 16, 2019 and after being briefed by DC Annetts, ETF cleared the Unit by ramming the entrance door open and handcuffing the two people found inside, Mr. Abdillahi and Jabril Diriye (the “found-ins”) to the rear. Six officers from Guns and Gangs including DC Annetts, then attended at the Unit at 5:20 p.m., and began their search. They were all in plain clothes. DC Annetts took photographs of the Unit before the search. Officer Popov was responsible for taking the Central Notes (“CN”). He did not testify. At 5:40 p.m. Mr. Hamid was arrested by DC Miller for the charges he is facing.

[17] The Unit is a small two-bedroom apartment. Unfortunately, no diagram of a floor plan was entered into evidence by any of the witnesses. Based on the evidence of the four officers who testified, there is a hallway that runs straight into the Unit from the front door, with two bedrooms on the left side of the hallway. On the right side down the hallway there is a bathroom, then the kitchen and dining/living area, which is divided by a kitchen island. However, during my deliberations I found a roughly drawn floor plan attached to the CN (“CN Floorplan”) that were entered into evidence. However, this floorplan was not referred to by any witness nor counsel and so I am not able to find that it is the best evidence that I have of the layout of the Unit. I will however make some reference to it as I review the evidence of the officers. This CN Floorplan shows that on the left of the hallway there is a bedroom, then a bathroom and then the second bedroom and that on the right as one enters the Unit there is a closet. That closet can be seen in some of the photographs taken by DC Annetts. Past the closet, the hallway stops on the right side and the space opens into a kitchen/living room area divided by an island.

[18] The Defence called Mr. Hamid’s sister who took a video of what can be seen on the 30^th floor outside the Unit which was very helpful. There are four elevators on the 30^th floor, two on either side of a short hallway. This video shows that Unit 3008 is the one that can be seen when exiting the elevators on the 30^th floor of the Building if you look in one direction, and there is another unit that can be seen if you look in the opposite direction at the other end of the elevator bank. There are a total of five units on each hallway at each end of the elevator bank, bringing the total number of units on the 30^th floor to ten. The floor plan outside the Unit was described as an “I” but a sideways “H” is more accurate with five Units along each side of the H with the elevator bank across the middle. The Unit in question was at the T intersection, at one end of the elevator bank.

[19] At the material time DC Annetts and DC Sean McKeon were searching inside the Unit while DC Chris Miller was outside the Unit making calls to check on the identity of Mr. Diriye as he had presented conflicting identification documents. Both men were compliant. Where DC Adam McKnight was and what he was doing is an important issue to be resolved.

Evidence of the officers

Evidence of DC Annetts

[20] According to DC Annetts the door to the Unit was fully open because it had been damaged in the breach by ETF. She testified that there were two uniformed officers out in the hall as well as DC Miller, but there is no dispute that there were no uniformed officers in the hallway until sometime after the gun in Mr. Hamid’s satchel was found when the transport officers arrived at the Unit.

[21] DC Annetts testified that Messrs. Abdillahi and Diriye were sitting on plastic chairs against a wall in the living room while officers searched the premises. The officers searched the Unit for about 17 minutes without finding any firearm. DC Annetts had searched the second bedroom and was searching the living room area opposite where Mr. Abdillahi was seated. While she had her back to him, she testified that she heard him start to yell and scream in a foreign language. When she turned around, she saw that Mr. Abdillahi was standing and looking towards the hallway and the entrance door area to the Unit. At this point she could not see whether or not the door to the Unit was open as she was facing Mr. Abdillahi with her back to the front door area of the Unit. She told him to sit down and when he did not listen, she repeated that demand and tried to push Mr. Abdillahi down against the wall and control him by putting her right palm on his chest. She said that his whole body was tense, and that she could not do it. According to DC Annetts it took all her force to finally push him down. Mr. Abdillahi continued to yell in a foreign language while also speaking some English to DC Annetts. This lasted in her estimation for about 20 to 30 seconds. DC Annetts testified that the door to the Unit was a “straight shot” down the hallway from where Mr. Abdillahi was sitting.

[22] After Mr. Abdillahi calmed down and sat down, DC Annetts testified that she could see a cluster of people she did not recognize in the hallway and they were brought into the Unit by DC Miller, DC McKnight and DC McKeon. She estimated that this occurred about one minute after Mr. Abdillahi had started to yell. These two males were Mr. Hamid and Mr. Abdi. DC Annetts testified that when she first saw them, she did not recall exactly where the officers were although a little later, she said they were by the T intersection, but she was not paying much attention to them.

[23] Once inside, according to DC Annetts, Mr. Hamid kept speaking in a foreign language to Mr. Abdillahi and she kept telling them to be quiet. Setting aside whether Mr. Abdillahi was yelling while Mr. Hamid and Mr. Abdi were in the hallway, the evidence of DC Annetts that Mr. Hamid was responding in a foreign language is at odds with the evidence of the other officers. Based on all the evidence that I heard, to the extent there was conversation, it was between Mr. Abdillahi and Mr. Abdi as they both speak Somali-Mr. Hamid does not.

[24] DC Annetts testified that most of her attention was on Mr. Abdillahi and she did not have any personal dealings with Mr. Hamid or Mr. Abdi although she heard DC McKeown say there was a gun. She took photographs of it and the satchel in which it was found as well as the damage to the front door as a result of the forced entry by ETF.

[25] DC Annetts gave some evidence as to why she believed the door to the Unit was kept open, but she admitted that she was not part of any discussion or decision to do so and was only making assumptions. She testified that whether a door in these circumstances will remain open or closed depends, and every scenario is different. The evidence of the other officers who testified was consistent with this although DC McKnight testified that a door might be kept open if ETF had thrown a smoke bomb inside, due to the smell, or if the place being searched was very hot. These considerations did not apply in the case of this search. None of the officers who testified said that there was a practice to keep the entrance door closed when searching inside a Unit like this.

Evidence of DC Miller

[26] DC Miller testified that he had done some previous surveillance of the Building on November 14, 2018, and he went to the Building before ETF attended on November 16, 2018 to prepare for the arrival of ETF. He then attended the Unit with the other officers to assist in the actual execution of the search warrant.

[27] On arrival at the Unit after it was cleared by ETF, DC Miller saw Messrs. Abdillahi and Diriye on the floor of the living room area lying on their stomachs and both were handcuffed to the rear. He dealt with Mr. Diriye and helped him to the couch in the “right rear part of the unit” – I assume he was referring to the living room. He explained in his evidence why there was a concern about Mr. Diriye’s identity. He was not sure where Mr. Abdillahi was at this time.

[28] Because of the concerns about Mr. Diriye’s identity DC Miller decided to run some checks on him. DC Miller said that while he was calling the station to have someone run checks on Mr. Diriye, he was pacing back and forth in the open doorway of the Unit. He said that he went outside the Unit as he did not want the two men detained inside to hear the specific questions he was going to be asking because of investigative techniques and there was commotion going on in the Unit as well. At this point he testified that Mr. Diriye was still seated on the couch in the back of the Unit and that he was also asking Mr. Diriye questions from time to time.

[29] Although DC Miller stated that he went outside the Unit for privacy, he also insisted that he kept the door to the Unit open once he left the Unit. He testified that the two men could not hear him from where they were although he admitted that he had never been in that Unit before, so I do not believe he could be sure of this. In cross-examination when asked why he did not close the door DC Miller testified that he also wanted his colleagues to know he was doing his job and not “twiddling his thumbs,” letting the others do all the work. Later he added that he was also keeping an eye on what was happening inside the Unit to ensure all was good and that he wanted to know if the other officers found a firearm.

[30] According to DC Miller, while he was on the phone, and standing in the threshold of the door to the Unit, he heard an elevator door open and when he looked up, he saw two individuals, later identified as Mr. Hamid and Mr. Abdi, walk out of the elevator. He said that he was the only one in the hallway at that time. Based on the evidence I would estimate the distance from the front door of the Unit to the first elevator where Mr. Hamid and Mr. Abdi exited to be about 15, possibly 20 feet away. This is consistent with the evidence of DC Miller. He testified that the man on his left was wearing the lighter colour sweater which was a reference to Mr. Abdi.

[31] According to DC Miller, Mr. Hamid took two to maybe four steps out of the elevator and then froze. He had a little bit of a surprised look on his face when he saw DC Miller and the people inside the Unit. In cross-examination DC Miller referred to the Elevator Video for the first time and stated that in that video you could see that Mr. Hamid and Mr. Abdi took several steps out. DC Miller identified Mr. Abdi as the man in the lighter clothing, and was carrying food, which is correct, but he testified that because Mr. Abdi was on the outside as he left the elevator, he had to take a few more steps – maybe six to seven - to round the corner, than Mr. Hamid who he said was on the inside, on the right. DC Miller was not challenged about this evidence, but I find he was mistaken as based on the Elevator Video, it is clear that Mr. Hamid exited first with Mr. Abdi directly behind him and once they were both out, Mr. Abdi was on the inside of the turn, and would have been on the right as they faced DC Miller, with Mr. Hamid on the outside.

[32] DC Miller testified that his attention was drawn to Mr. Hamid because he had a little bit of a surprised, shocked look on his face when he saw the officer and the people inside the Unit and the fact that he had “stopped dead in his tracks” when he saw DC Miller.

[33] DC Miller said that as the two men approached the Unit, he heard yelling from behind him. DC Miller looked back into the Unit for safety reasons and to ensure everything was under control and he saw that Mr. Abdillahi was standing up and yelling. He had been seated the entire time in the living room area across from Mr. Diriye. DC Miller stated that as he was looking into the Unit Mr. Diriye was to the right and Mr. Abdillahi was to the left. Mr. Hamid did not respond but Mr. Abdi did, and he yelled back. They were speaking in a foreign language that DC Miller did not understand. According to DC Miller, Mr. Abdi was not looking concerned or surprised and did not look shocked or nervous like Mr. Hamid did.

[34] DC Miller testified that at this point, given the two men were walking towards the Unit and Mr. Abdi had an interaction with Mr. Abdillahi, the person they suspected had a firearm, there was a nexus between the two men walking towards the Unit and the two men inside. Accordingly, DC Miller testified that he hung up the phone, telling the person that he was speaking to that he would get back to him and that he then spoke to the two men.

[35] DC Miller testified that by the time the men stopped walking they were about seven to eight feet from him and he had to walk towards them. As he was walking toward them DC Miller testified that he told them that he was a police officer, that police were executing a search warrant for a firearm, and that he did not know who they were and so they were both under investigative detention and he was going to bring them into the Unit for their safety and for his safety. DC Miller said that when he went up to them, he noticed that Mr. Hamid had a satchel, which was another thing that brought his attention to Mr. Hamid, as he has arrested a significant number of people and had seized firearms from satchels like this before, finding firearms in the satchel. He also testified that he noticed that Mr. Hamid was tugging on the satchel or the bottom part of his jacket to “sort of conceal” what DC Miller had already seen, namely the satchel, which he found strange.

[36] In cross-examination DC Miller testified that for these reasons he had enough grounds to suspect Mr. Hamid and Mr. Ali were “involved in this unit”. He denied the suggestion that he detained Mr. Hamid and Mr. Abdi because they were black. He also denied the suggestion that he immediately grabbed Mr. Hamid after he stepped out of the elevator insisting that if they had turned in the other direction, he would not have detained them.

[37] According to DC Miller, when he detained Mr. Hamid, he put his right arm up to Mr. Hamid’s back/his left upper arm back area and he then guided him into the Unit while he told him he was under investigative detention. Mr. Hamid was in front of him as he guided him into the Unit and the door to the Unit was open.

[38] DC Miller was taken through the Elevator Video in detail during his cross-examination. He confirmed that this video showed Mr. Hamid and Mr. Abdi in the elevator as they approached the 30^th floor and as they exited the elevator. He admitted that at 17:37:11 Mr. Hamid was out of the elevator and he testified that at that point he was still on his phone checking on Mr. Diriye and looking at them because he heard the elevator door open but that there was no yelling yet. He was taken to 17:37:16, five seconds later and agreed that at this point he could still see Mr. Hamid’s pants, jacket and shoes. He was then asked to focus on the video and Mr. Aly told him that where he was pointing his cursor, DC Miller would see his two feet beside Mr. Hamid. After this part of the Elevator Video was played for DC Miller, and the video was stopped at 17:37:17, he testified that he could “not really see it”, but he saw “two little stick legs which is what I have” but that he could not see shoes. He was shown the video again and stated that it was hard to tell but “I imagine those are my legs-yes”. He then admitted that it was him and that he was the only other one in the hallway.

[39] After seeing the Elevator Video, DC Miller admitted that in his evidence in chief, he overestimated the time it took before he detained Mr. Hamid in the hallway but that everything happened very quickly. He insisted that what he testified to all happened as he was approaching the two men and denied the suggestion that based on the Elevator Video, there would not have been enough time for all of that to have occurred. He said that his best estimate of time now, from when he first saw the two men stepping off the elevator and they started walking toward him, to the time he identified himself as a police officer was 30 to 60 seconds.

[40] DC Miller testified that when the yelling started DC McKnight came out of the Unit as well and that he dealt with Mr. Abdi and he - DC Miller, went to deal with Mr. Hamid. Later he said that when he told Mr. Hamid he was under investigative detention; DC McKnight was either coming out of the Unit or already out of the Unit – he was not sure. He testified in his evidence in chief that he was in the hallway for less than a minute, making observations of the two men before DC McKnight joined him.

[41] DC Miller said he decided to bring Mr. Hamid into the Unit rather than question him in the hallway because the two men found in the Unit were no longer a threat, he did not know anything about Mr. Hamid and Mr. Abdi, but they were coming to a Unit where he believed there was a gun and there were more officers inside the Unit to help investigate. He added that he had been given grief before by detaining people in a hallway because they were embarrassed when seen by neighbours. In addition, in the hallway there were more ways for the two men to get away.

[42] DC Miller testified that he brought Mr. Hamid into the Unit and he placed him face first against the wall just past the door so he could handcuff him to the rear. As I will come to, according to DC McKeon, he was the one who handcuffed Mr. Hamid. If I understand DC Miller’s evidence, either when he was bringing Mr. Hamid into the Unit and explaining to him why he was being detained or as he was handcuffing him, Mr. Hamid said that he did not even live there or something like that. DC Miller had not asked him any questions. According to DC Miller, he told Mr. Hamid again why he was being detained and gave him his RTC for a second time at this time, although I do not have a note of DC Miller testifying that he advised Mr. Hamid of his RTC at the time of the investigative detention. DC Miller testified that as he was handcuffing Mr. Hamid, DC McKeon came over and took the satchel and Mr. Hamid was handcuffed to the rear by DC McKeon.

Evidence of DC McKnight

[43] DC McKnight testified that at the time in question he was searching a bedroom that was just inside the front door of the Unit. While he was in the bedroom, he heard yelling and he admitted that inside the bedroom he could not see the source of the yelling. When he looked out of the bedroom to his left, he saw Mr. Abdillahi standing up and yelling. A little later in his evidence DC McKnight testified that when he looked out of the bedroom Mr. Abdillahi was seated to his left and that the front door was to his right and it was a “straight shot”.

[44] After DC McKnight turned left, he then turned to his right and he saw DC Miller standing in the hallway outside the Unit, very close to the door to the right, with two males walking towards him approaching the Unit. It was a matter of seconds for him to gather what was going on and given that there was someone also yelling from outside the Unit; a reference to Mr. Abdi, and given that this person and Mr. Abdillahi were conversing in a foreign language, DC McKnight explained why he felt that he needed to join DC Miller to assist him.

[45] DC McKnight testified that when he first looked out, he saw the two men in close proximity to the Unit and when he proceeded to walk out of the Unit, he saw DC Miller on his right speaking to a male and a second male on the left who had a plastic bag in his hand. There is no doubt that the person holding a bag of food was Mr. Abdi. Interestingly, DC McKnight made the same mistake about how they exited that DC Miller did, because based on the Elevator Video, it was Mr. Hamid who was on the left.

[46] DC McKnight was firm in his evidence that the door to the Unit was open. He denied that he spoke to the men close to the elevator. He testified that he did not see the approach by the two men from the elevator. When he started to have a conversation with this male, namely Mr. Abdi, he was close to the Unit and DC Miller was on his right. DC McKnight said that he identified himself as a police officer and told Mr. Abdi why he was talking to him, namely that they had a search warrant for the Unit. Mr. Abdi told him that he did not know about a firearm and that he was just bringing food to the Unit and that is when DC McKnight realized that it was food that he was carrying. According to DC McKnight, Mr. Abdi was continuing to converse with Mr. Abdillahi, and he formulated his grounds to place Mr. Abdi under investigative detention. He denied his decision was due to the fact they were young brown men. I won’t go into his reasons for detention save I did note that he did not give any basis for believing that Mr. Abdi was in possession of the firearm they were looking for.

[47] DC McKnight testified that he told Mr. Abdi that he had officer safety concerns and he patted him down for weapons. He added a few minutes later that he handcuffed Mr. Abdi to the rear before he brought him into the Unit. DC McKnight testified that he then brought Mr. Abdi into the Unit and gave him his RTC for an investigative detention. DC McKnight stated that his reason for bringing Mr. Abdi into the Unit was concerns for officer safety and it was a more controlled environment inside the Unit, where no one would interfere. During this time, he was not paying attention to what was going on with DC Miller and he did not recall seeing DC Miller take custody of Mr. Hamid as he was quite focused on Mr. Abdi. He did state that within seconds he heard that a firearm had been located.

Evidence of DC McKeon

[48] DC McKeon testified that he was searching in the kitchen when he heard Mr. Abdillahi start yelling in a language he did not understand. He described the kitchen as being in a U shape with an island. At this time, he did not know where DC McKnight was. DC McKeon could see to the living room area and testified that he first looked left, towards the living room and he saw that Mr. Abdillahi was yelling towards the door into the Unit and DC Annetts was telling him to sit down. DC McKeon testified that he did not know where DC McKnight was, and that he could not see officers McKnight and Miller until he walked out of the kitchen into the Unit towards the doorway because of the way it was set up - some cabinetry and the refrigerator. That did not take very long – only five to six steps. He walked over to the door and testified that he saw officers Miller and McKnight at the doorway to the Unit. The door was open - he did not know if it had been open before. Each officer had custody of a male, and DC Miller was explaining to them that they were being detained due to a search warrant.

[49] According to DC McKeon, DC Miller brought the male he was dealing with into the kitchen. DC McKeon testified that this male, Mr. Hamid, was breathing heavy and appeared nervous, which he added was understandable since no one would expect police. DC McKeon said that he told Mr. Hamid that he was going to do a pat down search and hand cuff him for safety reasons and that he then did the pat-down and handcuffed him to the rear. While he heard DC Miller was doing the pat-down, DC Miller was giving Mr. Hamid his RTC. He did not recall the answers as he was not the one giving the RTC.

[50] DC McKeon gave no evidence about the utterance that DC Miller testified that he heard by Mr. Hamid about not living in the Unit. DC McKeon testified that just before he patted the satchel that Mr. Hamid was carrying that Mr. Hamid told him and DC Miller that he found the satchel outside, that it was not his and that he did not know who it belonged to. DC Miller gave the same evidence and added that as DC McKeon was taking off the satchel, Mr. Hamid also said that he did not even know what was inside. Both officers testified that before Mr. Hamid made these statements no questions had been asked of Mr. Hamid save for a question about a safe. I accept that evidence.

Discovery of the firearm

[51] When DC McKeon patted the satchel, he could feel a hard, weighted object inside and when he opened it, he found a handgun; a .45 calibre Kahr handgun along with six rounds of ammunition in the magazine. In addition, a driver’s licence in the name of Mr. Hamid and other items were found. After this DC McKeon had no further interaction with Mr. Hamid.

[52] DC Miller estimated that the discovery of the handgun was pretty quick - about 30 seconds after he brought Mr. Hamid into the Unit. At 5:40 p.m., DC Miller advised Mr. Hamid he was under arrest for possession of a firearm and testified that he gave him his RTC again. According to DC Miller, when he asked Mr. Hamid if he understood, Mr. Hamid responded again that the firearm was not even his. To this DC Miller told him that he did not have to agree and asked again if he understood. To this DC Miller testified that Mr. Hamid said: “that’s fucking bullshit” and that when he asked if Mr. Hamid had a lawyer, he told him that Mr. Aly was his “fucking lawyer” and that his phone number was in his phone. Mr. Hamid was still standing with his face against the wall during this exchange.

[53] DC Miller testified that he did not have any further interaction with Mr. Hamid after he left the Unit to go speak to Security and that he left it to someone else to see if he would speak to his lawyer. He said that as far as he knew Mr. Hamid was not permitted to call a lawyer while he was in the Unit. He said the reason was because of safety concerns as they were still searching the Unit and they would not be able to give him privacy. DC McKeon went on to state that they have changed their practice now in this regard. If possible, the person detained is allowed to call counsel and counsel are advised that privacy for the call cannot be given until the detained person is at the station.

Evidence of Messrs. Hamid, Abdi and Abdillahi

[54] Mr. Hamid and Mr. Abdi admitted that they were in fact intending to go to the Unit when they got out of the elevator. Mr. Hamid said that when they got off the elevator and stepped out, he looked left to where the Unit is and saw two individuals close to the elevator – they were directly in front of him once he finished stepping out, closer to the elevator than the door to the Unit. Mr. Hamid admitted that he froze and said that before he could even react, one of the individuals said: “come here – you’re under arrest”. Mr. Hamid testified that he asked twice why he was under arrest and received no response. He admitted that he said that it was not his Unit but denied that Mr. Abdillahi was yelling while he and Mr. Abdi were in the hallway.

[55] Mr. Hamid testified that at this point the individual, who must have been DC Miller, already had control of his arm and was pushing him to the door of the Unit. According to Mr. Hamid the door to the Unit was closed. An officer inside the unit opened the door, he presumed because of the noise in the hallway. He saw a number of officers inside the Unit and was taken to the kitchen island. Mr. Hamid admitted that at this point a foreign language was spoken between Mr. Abdillahi and Mr. Abdi. He believed the language was Somali because that is where he knew Mr. Abdillahi and Mr. Abdi were from. He does not speak Somali.

[56] Mr. Hamid was shown the Elevator Video and he testified that he could see that when he stepped out of the elevator that he froze because he was caught off guard. He testified that on the video he could see the officer step out on his right side and that is when the officer took a grip of his right arm and was trying to grip his back by his jacket. Mr. Hamid added that the officer used his left hand to grip his right arm and that he switched it to his right hand and used his left hand to grab his coat.

[57] Mr. Hamid testified that as soon as he was inside the Unit he was handcuffed, searched and the gun was found. According to Mr. Hamid he was never given his RTC until the transport officers arrived. One of them asked if he had been given his RTC – I presume this was asked of the officers in the Unit and the response was that they could not recall and so at that time he was put against the wall and given his RTC. According to Mr. Hamid, police had continued to talk to him before this and he did not respond save to say that he wanted to speak to Mr. Aly, and he asked police to call him. The officers did not respond. He denied making the utterances that officers Miller and McKeon testified to.

[58] DC McKeon testified that there was a question asked of those in the Unit as to whether they knew the code to a locked safe that was found in the bedroom. I presume this question was also directed to Mr. Hamid, but no evidence was given about this beyond the fact the question was asked, and a code was not provided. There is no dispute that no one tried to take a formal statement from Mr. Hamid at any time.

[59] Mr. Abdi testified that when they got out of the elevator, as seen on the video, he was on Mr. Hamid’s left and two plain clothes officers approached them and grabbed them right away. He said that it all happened in a moment and that the by time he was off the elevator they were within arms’ reach. According to Mr. Abdi, one of the officers then said: “hey, we got two more”. In cross-examination he testified that one of them asked: “what are you guys doing here?” and another one said: “shut the fuck up”. He only saw the two officers in the hallway before they were brought into the Unit. Mr. Abdi denied speaking to Mr. Abdillahi outside the Unit and said that the door to the Unit was closed. He also denied speaking a foreign language inside the Unit. Mr. Abdi was Mr. Abdillahi’s surety at the time. Mr. Abdillahi was not expecting either of them and Mr. Abdi testified that he did not know Mr. Hamid had a firearm in his possession or that there was a safe in the Unit.

[60] Mr. Abdillahi testified that he first saw Messrs. Hamid and Abdi once they were in the Unit by the kitchen counter. He asked Mr. Abdi: “how did you get here” in Somali. He did not say that Mr. Abdi responded. Mr. Abdillahi testified that he did not stand up and yell in Somali before they were inside the Unit and that that would have been impossible as the door to the Unit was closed. He was firm the door was closed. He said that he was not expecting them, and he denied that he knew Mr. Hamid was coming to the Unit with a gun or that he was expecting Mr. Hamid to return a gun, that he knew about the safe in the bedroom or that he panicked because he knew Mr. Hamid had a gun. As for his shoulder Mr. Abdillahi testified that after the police came, he could not move or feel his shoulder. When he was being booked, he told them that his shoulder was hurt, and they took him to the hospital. This evidence was not challenged.

Evidence about the door to the Unit

[61] As already stated, all the officers testified that the door to the Unit was open at the material time. Mr. Hamid, Mr. Abdi and Mr. Abdillahi said it was closed. Apparently after the officers completed giving their evidence, Mr. Aly realized that he could prove that the Unit door was a door that would close automatically. Mr. Hamid testified that the door to the Unit would close unless it was held open. As I will review, Mr. Aly was able to establish that but because he came to this information late, he did not suggest to any of the officers that the door must have been in a closed position because of the spring hinges or that they would have had to prop the door open to keep it open.

[62] Aleksandar Bundev, the condominium manager and Wilson Lopez who was the Superintendent at the material time, both described the doors in the Building as “self-closing” which means that the doors close automatically unless propped open. Mr. Lopez explained that of the three hinges on the door to the Unit, the bottom two had springs inside to cause the door to close. From the video evidence I saw, the door to the Unit closed into the Unit.

[63] Mr. Lopez testified that after the search warrant was completed police turned the Unit over to him so that he could put a temporary lock on the door to secure the Unit. When he saw the door, he saw that the hinges were still in good condition and not broken. He testified that some of the wooden door, the lock and the handle to the door was broken. The police had put pressure on the top of the lock, but the door was still closing. He identified a photograph of how the door looked when he went up to put on a temporary lock. In that photograph the door is slightly ajar - almost entirely closed. Mr. Lopez also testified that the door might not close if there was a mat in the way. Based on the photographs of the door, there is one where the floor can be seen and there is no mat to be seen so I find that to be unlikely.

[64] Business records were introduced through Mr. Bundev which set out the repairs made to the door to the Unit as a result of the damage to the door resulting from ETF ramming the door open. Mr. Bundev testified that they had to replace the door itself, the lock and the number plate, but they were able to reuse the hinges as they had not been damaged and were still working. Mr. Bundev, however, did not have personal knowledge of the condition of the door as he started as the manager of the condominium a week after the arrest of Mr. Hamid.

[65] Mikhil Boban is the Security Supervisor of the Building and was a security officer for the Building at the time in question. He testified that he called the general inquiry number for the TPS on December 6, 2019 to advise that all the video footage requested was ready to be picked up. He gave them an incident number he had been given. Mr. Boban believes the video footage was picked up from him later that day or the day after by two police officers. He did not note the day or their badge numbers but did not believe one of them was DC Miller. This video provided to police included the video from the camera inside the elevator in question - the Elevator Video. Mr. Boban said there was no camera on the 30^th floor outside the elevator. After checking his computer Mr. Boban testified that it was DC Miller who was “dealing with all these things” and was “investigating the whole issue”. He did not specifically say that it was DC Miller who made the request for the video footage, but it is reasonable to assume so based on his evidence.

Analysis

Assessments of reliability and credibility

The Officers

[66] The position of the Defence is that the four police officers concocted a narrative in order to build investigative detention grounds to cover their true racial profiling motivation. Mr. Enright submits that the cross-examination of the four police officers was aggressive in that they were each accused of racial profiling, doctoring their respective notes to make them read the same, lying about the door to the Unit being open and about the verbal interactions between Mr. Abdillahi and Mr. Abdi. They were widely cross-examined about note-taking practices, debriefing practices and asked hypothetical questions about when they might think there would be sufficient evidence to investigatively detain someone. Some were asked to provide anecdotal evidence regarding what proportion of people they have arrested over their career were racialized. Mr. Enright submitted that the answers and the demeanour of these witnesses while being cross-examined, exemplified total professionalism and grace under pressure.

[67] I agree that the demeanor of the officers was professional and certainly based on their demeanour, there is no basis to suggest that they were fabricating their evidence. Demeanor, however, particularly of a witness accustomed to giving evidence in court is not that helpful in assessing whether the evidence given by the witness is true.

[68] All of the officers made their notes back at the station in the same office and after a debrief that occurred between 7:40 and 7:52 p.m. All the officers denied knowing what was in the notes of the others or colluding in any way while making their notes. In cross-examination of one of the officers, Mr. Aly told the officer that he was going to ask me to compare the notes of all of the officers, but in the end he did not put the notes in evidence or ask me to do so.

[69] DC Annetts testified that during the debrief they only talked about times when events occurred, what was seized and who was going to do what in terms of items seized and paperwork. When asked if it was usual that officers would talk about what they saw during the debrief, DC Annetts said that it was more for the CN officer to make sure he had everything that he needed. She admitted that the officers might have spoken about what they saw but if they did, she did not recall it. DC McKeon’s evidence was similar - that they reviewed times and sequence of events, but he denied that everyone discussed what happened during the debrief.

[70] DC Miller on the other hand testified that “of course” during the debrief everyone would have talked about what they did. DC McKnight admitted that he talked about his involvement and how he came to his conclusions and that he knew he would have to justify the detention. I find it likely that the officers discussed what they have testified to in this case, at least in general terms, during the debrief. This practice of having the debriefing before officers make their notes is unfortunate because some tainting of their recollection will be inevitable, and no doubt impact their notes. In this case, however, given that I was not able to compare the actual notes made by the officers I am not in a position to conclude, as suggested by Mr. Aly, that there was collusion in the actual making of their notes even though DC Miller said that “we” made our notes after the debrief.

[71] Turning to the evidence of DC Annetts, she was clearly incorrect in certain respects. As I have already said she was wrong about uniformed officers being outside of the Unit when Mr. Abdillahi started to yell, and she was also wrong when she testified that it was Mr. Hamid who was yelling back to Mr. Abdillahi in a foreign language. These errors themselves do not give me concern about the truthfulness of her evidence but I do have other concerns in that regard.

[72] I do not believe DC Annetts’ evidence about the force she said that she had to apply to get Mr. Abdillahi to sit down. I also find it impossible to believe that if she did apply any force to Mr. Abdillahi that he would not have told her about his shoulder injury. DC Annetts testified that she may have known that Mr. Abdillahi went to hospital complaining of a separated shoulder. When it was put to her that Mr. Abdillahi was in extreme pain, she testified that ETF officers told her that Mr. Abdillahi had been cleared by the Tactical Medic Team.[^2] She was definite that there was absolutely no indication to her that he was in extreme pain and that she did not notice that he was in pain, and that any shoulder issue was definitely not affecting the way he was acting. When she was shown the video of the booking of Mr. Abdillahi, she repeated that she never saw an issue with his shoulder and testified that he never said anything about it to her.

[73] The evidence is clear that Mr. Abdillahi suffered a shoulder injury - presumably when he was detained and handcuffed by ETF officers. The pain he was in can be seen in the booking video and the injury was serious enough that he was taken to hospital as a result. Mr. Abdillahi’s evidence that he was in pain because of this shoulder injury was not challenged.

[74] Accepting for the moment that Mr. Abdillahi did stand and start to yell, I find this very difficult to believe given what can be seen on his booking video. Even if I were to find that Mr. Abdillahi stood up and started yelling, an issue I will come to, I do not believe that he would have been as forceful as DC Annetts testified to, given this injury. I also find that DC Annetts’ evidence that she was not aware that he was in pain and he did not tell her that he was, presuming she did apply any force to him, impossible to believe. Furthermore, in terms of what was discussed during the debrief, DC Annetts deliberately avoided an admission that DC MIllr freely gave in his evidence, namely that what each of the officers saw and did was in fact discussed during the debrief. These findings do give me some concern about relying on the evidence of DC Annetts.

[75] The issues raised by the Defence with respect to the evidence of DC Miller are numerous but primarily relate to what can be seen on the Elevator Video, which I will come to. DC Miller testified that after Mr. Hamid was arrested, he went downstairs and spoke to the superintendent, Wilson Lopez, to ensure that the broken door of the Unit was made secure, and he went back up to the Unit while Mr. Lopez secured the door.

[76] In his evidence in chief DC Miller made no mention of watching any security video but he referred to it when answering a question in cross-examination before Mr. Aly disclosed that he had a copy of the Elevator Video. DC Miller said that he watched “everything” when he went down to speak to security. He said that his reasons for doing so were that he watched it “just for myself” and that the fact a gun was recovered from Mr. Hamid “piqued his interest” and he wanted to know where they had come from and “all that kind of stuff”. DC Miller testified that he asked security for all of the video, including the two days prior when he was conducting surveillance and that he was told they would burn everything – I presume to a disk and that it should be in the disclosure although he did not do anything to obtain the video because he was not the case manager at the time. Later he said that he forgot to follow up. Although DC Miller made a note of speaking to security, the fact he watched the video and requested a copy is not in his notes. DC Miller denied the suggestion that he did not follow up on the video because it did not help him. In fact, he said that seeing the video on the day of Mr. Hamid’s arrest did not affect his evidence and in fact he thought the Elevator Video helped him because “it shows exactly the way it happened”.

[77] As I have set out, there is undisputed evidence from Mr. Boban that the video was requested by DC Miller and that it was picked up by members of TPS. However, it is admitted that there was no copy of the Elevator Video in the disclosure to the Defence and that the Crown was not made aware of the video until the hearing of this application.

[78] Mr. Aly argued that there is only one available inference as to why the Elevator Video was not turned over to the Crown: the video proved that the police account was fabricated and so DC Miller suppressed disclosure of the video because he was of the view that it did not assist him. It is certainly concerning that the video was not received by the Crown and one inference is the one suggested by Mr. Aly. However, I have no information from the Crown as to what happened once police picked up this video and to find that this was because this evidence was suppressed, in my view, is not warranted as there could be other innocent explanations. The fact that DC Miller testified that he watched the video before he was asked about it is not consistent with him trying to suppress it. Furthermore, as I will come to, the portion of the video relied upon by the Defence is a fraction of a second and its significance can only be seen when the video is played on slow motion. There is no reason to believe that DC Miller played the video slowly or that he saw what he admitted seeing at trial, when he watched the Elevator Video when he was with security. For these reasons I do not find that DC Miller or the police deliberately suppressed the Elevator Video.

[79] As I will come to, the primary concerns I have about the evidence of the officers arise from my findings that their evidence is not credible because of other facts. I will come to those concerns as I make my findings of fact.

The Defence witnesses

[80] The only independent witnesses I heard from were the employees of the Building and I have no hesitation in accepting their evidence subject to any concerns about reliability. Mr. Enright did not suggest otherwise.

[81] As for the credibility and reliability of the evidence of Mr. Hamid, Mr. Enright relies on the fact that Mr. Hamid denied the suggestion that he was feeling anxious and stressed when he exited the elevator because he realized police were there and he knew he had a loaded handgun in his satchel. He testified that his initial stress was because he took one step out of the elevator and was told he was under arrest just for walking outside of an elevator and was not given an explanation – he was confused. Mr. Hamid admitted that after that, his stress increased because he had a loaded handgun in his possession. I agree with Mr. Enright that Mr. Hamid was trying to avoid the obvious distress he must have felt when on his evidence he was told he was arrested, given he had a loaded firearm in his satchel. That said, I also accept that if his evidence is believed that the way he was detained would have increased that stress.

[82] Mr. Enright argued that Mr. Hamid has a selective memory. He was prepared to admit that he told police he did not live in the Unit, but he denied the other utterances. In other words, Mr. Hamid was prepared to admit what helps him, but he denied the stuff that hurts him. He submitted that Mr. Hamid lied back then about finding the satchel outside and he continues his lies at the trial. The difficulty with this submission of course, is that it presumes that the fact that more than one officer will testify to the statements allegedly made by Mr. Hamid and that they all put this in their notes somehow enhances their credibility. That is not, in my view, a way to resolve the overall issue of who is telling the truth on whether Mr. Hamid made certain statements to police.

[83] Mr. Enright made the same argument with respect to Mr. Hamid’s evidence that he had never been advised of his RTC until the transport officers arrived, pointing out that it is recorded multiple times in DC Miller’s, DC McKnight’s and DC McKeown’s notes – including DC Miller’s “Q and A DYU questions” where he identified Hussein Aly as Mr. Hamid’s counsel. Again, this does not enhance the credibility of the officers on this point and in any event, I am not being asked to find whether the alleged utterances were in fact made. It may be that the evidence of Mr. Hamid in this regard is true. The fact that Mr. Aly is referred to in the police notes is consistent with Mr. Hamid’s evidence that he asked that he be permitted to call Mr. Aly.

[84] As for Mr. Abdillahi’s evidence, Mr. Enright argues that his evidence was very vague, and he prefaced two of his answers with: “I guess”. He could not even provide any details regarding how he came to be in this Unit that afternoon or why he was there other than a general comment about getting some food. I agree that Mr. Abdillahi was being deliberately vague about why he was in the Unit and that that gives rise to concerns about his credibility.

[85] As for Mr. Abdi, Mr. Enright’s position is that his evidence that he did not speak a foreign language at any time is not credible. Given the evidence of Messrs. Hamid and Abdillahi, who both said that Mr. Abdillahi spoke Somali to Mr. Abdi once they were inside the Unit, I agree that it is likely that Mr. Abdi did speak Somali to Mr. Abdillahi once he was inside the Unit. However, given what Mr. Abdillahi said he asked Mr. Abdi, it would not be surprising if Mr. Abdi forgot that simple question was asked in a language he understood. In my view, this could just as easily be an issue of lack of memory, not a deliberate lie. Mr. Enright also pointed out that the evidence of Mr. Abdi that two officers grabbed him and told him to “shut the fuck up” and then said: “Hey, we got two more” as he was brought to the Unit was not put to any of the officers in cross-examination. That is true but is not a reason to find that this evidence was not true. This Brown and Dunn issue goes only to weight and I do not need to make a finding on whether or not this was true.

[86] Overall, in my view, Mr. Abdi appeared to be a credible witness. He has no criminal record, was accepted by a court as a surety for Mr. Abdillahi and has a responsible job counselling youth. I therefore do not accept the submissions of Mr. Enright that he overdid his testimony or that he is not credible.

[87] In this case I have competing evidence from the witnesses that I must resolve in order to decide these applications. I cannot rely more on the evidence of the officers just because they are police officers and made notes at the time nor should I automatically discount the evidence of the Defence witnesses without good reason. Unfortunately, it is not unheard of for officers to collude in giving evidence in court and that is certainly a real possibility for the Defence witnesses as well. As Mr. Aly submitted, there is a motive for DC Miller and the other officers to be untruthful having found a firearm on Mr. Hamid and wanting to ensure they can justify his detention and the search. As DC Miller said, it is a "good day" when a firearm is seized, and it makes everyone "happy". In the same way, Mr. Hamid and his friends would want to support him as he is facing very serious charges.

[88] Fortunately, as I will come to, there are findings of fact that I can make based on the whole of the evidence and considering what makes sense based on the evidence I do accept.

Findings of Fact

Has the Crown proven that Mr. Hamid’s detention and search of his satchel was lawful and that, as a result, his ss. 9 and 8 Charter rights were not breached?

[89] The first issue to consider is whether the Crown has proven that Mr. Hamid’s detention and search of his satchel was lawful and that, as a result, his ss. 9 and 8 Charter rights were not breached. To decide this issue there are a number of factual issues to consider.

Were the officers motivated to detain Mr. Hamid because he is black?

[90] With respect to the Defence assertion that the officers were motivated to detain Mr. Hamid because he is black, I did find it strange that the officers tended to avoid giving evidence that the majority of their arrests for firearms are of black or brown men as that certainly seems to be the case in my experience based on the cases coming to this Court. For example, when DC Miller was asked about the type of people he arrests for firearms found in satchels, he said "all kinds" and gave an example of seizing a firearm from women, and different races of people. However, when pressed, he testified that most firearms in satchels are seized from "African" men. DC Miller testified that he would not categorize Mr. Hamid as black but rather as brown – of middle eastern descent, when he was being accused of stopping the men because they were black, but he did describe him as a male black or brown in his notes. DC McKnight did not even put in his notes that Mr. Hamid and Mr. Abdi were black/brown males in his initial description.

[91] However, I do not have evidence upon which I could reliably rely to find that the officers and in particular DC Miller were motivated in detaining Messrs. Hamid and Abdi because they were black or brown.

Was the door to the Unit open or closed?

[92] An important factual issue is whether the door to the Unit was open at the time Mr. Hamid was detained. I find on the evidence that the door was self-closing and that the ramming of the lock by ETF did not damage the hinges or the fact the door would mostly close automatically unless it was propped open or caught on a mat. I have already found that there is no evidence of a mat at the door. I find on the evidence that although the damage would have prevented the door from closing completely, absent being propped open, it would have closed but remained slightly ajar as seen in the photographs taken by DC Annetts of the door after ETF rammed the lock.

[93] Unfortunately, the officers and in particular DC Miller, were not asked if they propped the door open. However, as Mr. Aly submitted, had the door been propped open I would have expected at least one of the officers to have said so when they were being accused of lying about the door being open.

[94] The officers refused to accept the suggestion made by Mr. Aly that when executing a search warrant in this type of situation they would keep the door to the Unit closed to maintain control of any persons found inside and avoid interference from anyone outside. They all said it would depend on the circumstances of the particular case although DC McKnight did give two examples where a door could be left open that make sense. Given the Unit was in a high rise and based on the limited evidence I have from the Elevator Video, there certainly seemed to be a fair amount of traffic in the Building. This makes sense given November 16, 2019 was a Saturday and the Unit was breached late afternoon. I therefore find it likely that the door to the Unit was allowed to close to the point it was slightly ajar, to avoid curious onlookers who happened to exit the elevator on the 30^th floor because they were going to one of the other nine units on the floor from seeing what was going on. Furthermore, based on the evidence of DC Annetts and the other officers, no one inside the Unit was assigned to keep watch of Messrs. Diriye and Abdillahi and the fact that they were handcuffed would not have prevented them from fleeing.

[95] The question is what happened once DC Miller went outside and in particular; did he prop the door open? As for his reason for keeping the door open, the evidence he gave about wanting to know if a firearm was found makes sense; although that on its own in my view would not be a reason to keep the door open given he wanted privacy. His evidence that he wanted to ensure his colleagues knew he was working seemed contrived and in my view was not at all credible. DC Miller testified that one of the reasons he took Mr. Hamid inside the Unit was that he had taken "flack" in the past for detaining people in the hallway since doing so is embarrassing. As Mr. Aly submitted, if this was a concern it is yet another reason for him to allow the door to close, since leaving it open allowed any passerby to see what is happening.

[96] On balance I find it likely that the door was closed but ajar when Messrs. Hamid and Abdi exited the elevator.

Did Mr. Abdillahi yell in Somali to Mr. Abdi when Mr. Abdi got off the elevator?

[97] Turning to the question of whether or not Mr. Abdillahi yelled in Somali to Mr. Abdi when Mr. Hamid and Mr. Abdi were out in the hallway, given my finding that the door to the Unit was likely mostly closed, that of course could not have occurred as he would not have been able to see them when they exited the elevator. However, I have other reasons for finding that it is not likely that Mr. Abdillahi yelled at Mr. Abdi when he was still in the hallway without resolving the dispute on this issue between the evidence of the officers and the Defence witnesses as to whether the door was open.

[98] Both DC Annetts and DC Miller testified that where Mr. Abdillahi was seated was a “straight shot” to the entrance door to the Unit. The evidence is consistent that Messrs. Abdillahi and Diriye were seated in the living room after they were handcuffed and that the living room was at the back of the Unit, but it is not clear where exactly in the living room Mr. Abdillahi in particular was seated, which becomes important as I will explain. DC Annetts testified that they were sitting on plastic chairs against a wall in the living room while officers searched the premises. DC Miller testified that he helped Mr. Diriye to the couch in the “right rear part of the unit” – which must have been the living room, which would mean that the couch in the living room was on the right side of the living room as one looks in from the front entrance, although I do not know which way it was facing. DC Miller also testified that although he did not know where Mr. Abdillahi was seated at the time, he put Mr. Diriye on the couch, when Mr. Abdillahi started to yell and he looked back, Mr. Abdillahi was seated across from Mr. Diriye. If this evidence is accurate, even if Mr. Abdillahi was facing into the living room towards the kitchen, his view would be no better that DC McKeon’s who said he could not see the front door from where he was in the kitchen even though his evidence was that the living room was open to the kitchen and separated only by an island.

[99] DC Annetts did not take any photographs of the Unit that I was shown that would show if the door to the Unit was open that someone in the living room would be able to see Messrs. Hamid and Abdi as they exited the elevator. If I have regard to the CN Floorplan, if as DC Miller said Messrs. Abdillahi and Diriye were seated in the right rear part of the Unit, the walls of the closet would have blocked their view.

[100] Without better evidence as to the layout of the Unit, and of the view Mr. Abdillahi would have had from where he was seated, and given the evidence I do have from DC Miller as to where Mr. Abdillahi was seated, and the evidence from DC McKeon, I can only come to the conclusion that he would not have been able to see the door to the Unit even if he happened to be looking that way at the material time.

[101] Furthermore, as submitted by Mr. Aly, even if the door to the Unit was open, the view would have been likely obstructed by DC Miller, who testified he was standing in the threshold. I also agree with Mr. Aly’s submission that given what can be seen on the Elevator Video and given how quickly the detention of Mr. Hamid occurred, it is implausible that Mr. Abdillahi was able to see the men and decide to shout something at them within the six-second window when Messrs. Hamid and Abdi exited the elevator and got detained. This is particularly so given that he would likely not have heard any sound made by the elevator when it stopped on the 30^th floor nor would he have necessarily been even looking in the direction of the front door at the moment the elevator doors opened, and Messrs. Hamid and Abdi exited. I find it more likely that if any communication took place between Mr. Abdillahi and Mr. Abdi, it was after DC Miller had already detained the men so it could not have formed part of his grounds. All of these facts reduce the chances of Mr. Abdillahi being able to see Messrs. Hamid and Abdi exit the elevators even if the door to the Unit was fully open as testified to by the officers.

[102] The CN were entered into evidence and there is no dispute that they do not refer to Mr. Abdillahi starting to yell. All they state is that at 17:37 two males attended the Unit and were detained by DC Miller. DC Miller admitted that during the debrief that if there was an important omission, he could have told the CN officer that something should be added, but he said that would only be with respect to missing times. He testified that grounds for an investigative detention would not be included in the CN and that he had never seen all the officers’ notes in the CN. DC McKeon also testified that the CN will not include an officer’s own observations if they relate specifically to the officer’s grounds and he pointed out that the CN do not include the fact that he felt a hard object in the satchel before he searched it.

[103] DC McKnight however testified that he has been a CN taker before and that those notes would include observations made by the note taker including someone standing up and yelling if the CN taker is good. He testified that he did not realize that the CN did not have a note of Mr. Abdillahi standing up and yelling as he had not reviewed them before giving evidence.

[104] I accept that CN would not include observations and grounds made by an individual officer but if Mr. Abdillahi indeed stood up and started yelling and screaming, as was described in the evidence, that would have been heard by every officer in and around the Unit including the CN taker. In fact, this observation was set out in the notes of the four officers who testified. I appreciate that I do not have the evidence of the CN taker but in my view given that this is an observation that he or she must have made, and given it resulted in Messrs. Hamid and Abdi being detained, an unusual enough event during the execution of a search warrant as admitted by some of the officers, the fact that this is not in the CN does suggest it did not happen.

[105] Mr. Aly also relies on the fact that the Synopsis for a Guilty Plea for Mr. Hamid (“Synopsis”) that DC McKeon prepared does not refer to Mr. Abdillahi standing up and yelling to the men outside the Unit. When asked why, DC McKeon testified that he did not consider that he needed to put in the grounds for the arrest of Mr. Hamid in the Synopsis and that that has never been his practice. Without more evidence on this point, I accept that this might be the case and so do not draw any inference from this fact.

[106] Mr. Aly also argued that if Mr. Abdillahi had hoped to assist Mr. Hamid from being detained by the police, he would have been better off remaining silent and not demonstrating to the police that he knew Mr. Hamid and Mr. Abdi. That may be the case but if he indeed did see them and panicked because he knew Mr. Hamid had a firearm in his possession he might not have been thinking straight.

[107] For these reasons I find that even if the door to the Unit was open, as the officers testified it was, it is unlikely that Mr. Abdillahi was yelling when Messrs. Abdi and Hamid exited the elevator and before Mr. Hamid was detained by DC Miller. On this point, despite my concerns about the credibility of Mr. Abdillahi, I prefer the evidence of Mr. Hamid and Mr. Abdi to that of the officers.

[108] Given Mr. Enright’s concession that without the yelling-out by Mr. Abdillahi at Mr. Abdi and Mr. Hamid as they approached the Unit, the officers would not have had grounds to detain Mr. Hamid and Mr. Abdi in the hallway, I could end my reasons here, but I will go on to consider perhaps the most important and independent piece of evidence I have of what happened when Messrs. Hamid and Abdi exited the elevator, the Elevator Video.

The significance of the Elevator Video

[109] This brings me to my conclusions on the significance of the Elevator Video and in particular whether or not DC Miller’s legs can be seen next to Mr. Hamid just after Mr. Hamid exited the elevator.

[110] Mr. Aly of course relies on the admission by DC Miller that his “stick” legs are what is seen next to Mr. Hamid and that he was the only officer in the hallway and Mr. Enright’s concession that if I find that DC Miller’s legs can be seen on the Elevator Video, as alleged by Mr. Hamid, just a few seconds after Mr. Hamid exited the elevator and as he was standing a couple of feet outside the elevator, then Mr. Hamid was not lawfully detained and searched.

[111] Mr. Enright first argued that I should not give any weight to DC Miller’s evidence as to what he saw and that in fact he did not give evidence that he saw his legs on the Elevator Video. Rather, Mr. Enright submitted that by the process of elimination, DC Miller testified that if the image that he saw on the video was legs, that they must be his legs as he was the only other person in the hallway. He argued that this did not change the fundamental evidence of DC Miller.

[112] DC Miller was taken through the Elevator Video in detail, and he had a chance to focus on the point in the video that Mr. Aly relies on twice. It is true that the first time he said that he could “not really see it”, but he did admit that he saw “two little stick legs which is what I have” but that he could not see shoes. He did not say, as Mr. Enright submitted that if those were legs, they must have been his. When DC Miller was shown this portion of the video again, he testified that it was hard to tell but “I imagine those are my legs-yes”.

[113] It is true that DC Miller did not, when pressed in cross-examination, change his fundamental testimony that he was just outside the Unit and on the phone to check on the identity of Mr. Diriye and that he observed two people walk out of the elevator and begin walking his way; that the occupant inside the Unit began yelling and that one of the men in the hallway responded to the occupant. I also agree with Mr. Enright’s submission that this evidence does not align with DC Miller’s admission that it was his legs that he saw in the video. That however is the point, as the Elevator Video evidence does not “lie”. Although DC Miller testified that the Elevator Video helps him and supports his evidence, it clearly does not if he was correct that what can be seen at 17:37:17 are his stick legs.

[114] I appreciate, however, that I am not bound by this admission by DC Miller. Based on R. v. Nikolovski, 1996 158 (SCC), [1996] 3 S.C.R. 1197, as the trier of fact, I can make findings of fact about videotape demonstrative evidence that are different to what a crown witness has testified. Unlike Nikolovski, this is not a case of identification in that there is no doubt that on the evidence of the officers if there are legs in the video that do not belong to either Mr. Hamid or Mr. Abdi, they must belong to DC Miller. The issue then is what can I, as the trier of fact, see on the Elevator Video and is what I see reliable evidence that DC Miller was in fact right by Mr. Hamid seconds after he exited the elevator.

[115] Mr. Enright argued that if one looks at the earlier portions of the Elevator Video you can clearly make out the people as they enter and exit the elevator. He took Mr. Hamid through different points in the Elevator Video to show that when people entered and exited the elevator before the time when Messrs. Hamid and Abdi left, that you could clearly see into the hallway outside the elevator. I presume this was to demonstrate that the video is not clear like this when Messrs. Hamid and Abdi left the elevator. The quality of the video inside the elevator does seem to vary, possibly due to reflection from the mirrors. As for what can be seen in the hallway, I do not believe that the quality of the video necessarily changed at the critical point, but it is the case that the view is blocked to some degree by Messrs. Hamid and Abdi as they leave the elevator. Although the quality of the video is not clear enough to identify Mr. Hamid or Mr. Abdi, there is no dispute that they can be seen inside the elevator and I am clearly able to distinguish between them as they leave because Mr. Abdi was wearing a light-coloured jacket and Mr. Hamid was wearing a dark-coloured jacket. In addition, as Mr. Enright pointed out, Mr. Hamid was wearing light tan shoes that show up quite clearly on the Elevator Video as he exits. This is important because it means that his legs can’t be confused with Mr. Abdi’s.

[116] I could not see the image that the Defence relies up on as the evidence was heard. Accordingly, I asked Mr. Aly to take me to this part of the Elevator Video during his closing submissions. He did so and in fact had discovered by this time that he could decrease the speed of the recording so that it plays in slow motion in addition to going frame by frame. This was important because the image in question appears only for a fraction of a second before the elevator doors close.

[117] When Mr. Aly played the Elevator Video slowly for me at the critical point in the video, he did so two or three times and each time I was able to see the image that the Defence alleges are the legs of DC Miller although I did not see his feet. I advised counsel of this. In that portion of the video, I am still able to see Mr. Hamid’s legs and his tan shoes and Mr. Abdi is still to his left. Since there is no dispute between the Crown witnesses that there was no one else in the hallway at that time, if the image seen is that of legs then they must belong to DC Miller.

[118] I considered the submission of Mr. Enright that what can be seen at the point when Mr. Hamid is fully out of the elevator is just a fraction of a second is something that is light coloured moving near Mr. Hamid’s right arm and that this could be a reflection, a shadow or something else. I believe that is a reference to the frame of the elevator which does appear lighter. However, what I can when see Mr. Aly played the Elevator Video slowly for me at the critical point in the video is a moving image and the movement is in the opposite direction of Mr. Hamid and consistent with someone walking. It could not be a shadow of Mr. Hamid’s legs since he was standing still at that point and in any event only walked toward the Unit.

[119] I also considered Mr. Enright’s submission that it makes no sense that what can be seen is DC Miller because he would have been facing Mr. Hamid, not standing beside him. I disagree because as I have said I see legs walking in the opposite direction that Mr. Hamid is facing, not standing, and they are on Mr. Hamid’s right side. This is in fact consistent with the evidence of DC Miller that he walked toward Mr. Hamid and when he detained Mr. Hamid, he put his right arm up to Mr. Hamid’s back/his left upper arm back area and he then guided him into the Unit with Mr. Hamid in front of him. What can be seen is also consistent with the evidence of Mr. Hamid that DC Miller grabbed his right arm and then the back of his jacket. I appreciate they disagree on which arm DC Miller grabbed although I note that DC Miller was at Mr. Hamid’s right side. I don’t know why DC Miller would grab Mr. Hamid’s right hand with his left hand and then move it over as Mr. Hamid said – perhaps Mr. Hamid was mixed up about that, but certainly the evidence of them both is consistent with DC Miller’s legs walking past Mr. Hamid on the right side. Presumably DC Miller grabbed his arm when he reached him and then turned and grabbed the back of Mr. Hamid’s jacket and guided him into the Unit, with Mr. Hamid in front of him.

[120] For these reasons I find that what DC Miller referred to as his “stick legs” were in fact his legs as he walked behind Mr. Hamid, to Mr. Hamid’s right, and that this is the point at which he must have physically detained Mr. Hamid by grabbing an arm and the back of Mr. Hamid’s jacket.

[121] I also find that the evidence of DC Miller does not fit with what can be seen on the Elevator Video. There is no dispute that the times on the Elevator Video are accurate. DC Miller agreed that the video shows Mr. Hamid out of the elevator at 17:37:11 and that at that point he was still on his phone checking on Mr. Diriye and looking at the two men because he heard the elevator door open but that there was no yelling from Mr. Abdillahi yet. DC Miller was taken to 17:37:16 in the video, five seconds later, and he agreed that at this point he could still see Mr. Hamid’s pants, jacket and shoes. At this point Mr. Hamid had only taken a couple of steps out of the elevator and he was facing the Unit. He had not started any approach to the Unit. The legs of DC Miller appear a second later at 17:37:17. Given my finding that DC Miller was taking physical custody of Mr. Hamid at the point in the video where his legs can be seen, that was only six seconds after Mr. Hamid exited the elevator. Clearly there was not enough time for Mr. Abdillahi to start to yell, for DC Miller to get off the phone and wait for Messrs. Hamid and Abdi to walk towards him, to observe Mr. Hamid tugging on the satchel, for him to start walking towards them and tell them what he alleges he did, and the only conclusion I can draw is that he saw Mr. Hamid exit the elevator and turn towards the Unit and based on that he decided to physically detain him. This is consistent with the evidence of Mr. Hamid and Mr. Abdi.

[122] For these reasons I have concluded that DC Miller detained Mr. Hamid six seconds after Mr. Hamid stepped out of the elevator and that Mr. Hamid was unlawfully and arbitrarily detained.

[123] This finding on its own determines the outcome of the Defence ss. 8 and 9 Charter application. As already stated, Mr. Enright conceded that if I find that DC Miller’s legs can be seen on the video, as alleged by Mr. Hamid, as he was standing a couple of feet outside the elevator, the evidence of DC Miller as to what he said and did as he was detaining Mr. Hamid cannot be accurate. As I have explained, that is clearly the case - there was not enough time for DC Miller to do what he said he did, and Mr. Hamid clearly did not walk about halfway to the Unit before he was physically detained.

Where was DC McKnight when Messrs. Hamid and Abdi exited the elevator?

[124] Notwithstanding my finding that DC Miller did not lawfully detain Mr. Hamid, I will deal with the evidence of DC McKnight and where he was when the alleged yelling by Mr. Abdillahi began. During closing submissions, I asked Mr. Aly about the fact that Mr. Hamid and Mr. Abdi testified that there were two officers in the hallway when they exited the elevator. There is no dispute that one of those was DC Miller. Mr. Aly responded that the other officer must have been DC McKnight. This is the last piece of the puzzle to resolve and its resolution may have some impact on my s. 24 Charter analysis.

[125] During closing submissions, I expressed a concern about the evidence of DC McKnight as to where he was and what he saw because of the evidence of DC McKeon, because I thought DC McKeon was closer to the entrance door than DC McKnight and yet he did not see DC McKnight pass him as he walked to the door. I reconsidered this during my deliberations. DC McKnight said that he was in the bedroom closest to the entrance door. That means that if this evidence is true, he would have been fairly close to the door. That might also mean that DC McKeon would not see him pass him. Without more evidence about the layout of the Unit and the location of the door to the bedroom and the precise location of DC McKeon, I cannot be sure about this.

[126] DC McKnight testified that when he heard the yelling it was a matter of seconds for him to gather what was going on as he had to look out of the bedroom and he first looked left into the Unit and then to his right and that he then saw DC Miller standing in the hallway outside the Unit, very close to the door to the right, with two males walking towards him approaching the Unit. That is consistent with the evidence of DC Miller as to where he was standing and what he saw but given what I have concluded about the Elevator Video, this evidence cannot be true. Given my conclusion that Mr. Hamid was detained within seconds of exiting the elevator and the fact that Mr. Hamid took no more than one or two steps as he exited the elevator, DC McKnight could not have observed the males approaching the Unit. Furthermore, given the time it would have taken him to figure out what was going on and take a few steps towards the door of the Unit, he would not have been able to see DC Miller standing by the door to the Unit as DC Miller was now just in front of the elevator.

[127] Furthermore, it is clear that DC McKnight was in the Unit close to where DC McKeon was searching and they both testified that they reacted immediately to the fact they heard yelling. DC McKeon testified that he took five or six steps out of the kitchen towards the doorway and that he then saw officers Miller and McKnight at the doorway to the Unit.

[128] It is also interesting that DC McKnight made the same mistake about how Messrs. Hamid and Abdi exited the elevator that DC Miller did because based on the Elevator Video, it was Mr. Hamid who was on the left or the outside as they turned toward the Unit.

[129] For these reasons I prefer the evidence of Messrs. Hamid and Abdi and find that their evidence is correct that when they exited the elevator both DC Miller and DC McKnight were outside the door to the Unit.

Conclusion on ss. 9 and 8 of the Charter

[130] Having found that the detention of Mr. Hamid was unlawful and there was a breach of his s. 9 Charter rights, I find that the search of his person and the satchel in his possession was also unlawful as a search incident to his detention. As a result, there was also a breach of Mr. Hamid’s s. 8 Charter rights.

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

[131] Section 10 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”. This guarantee of the right to counsel imposes both informational and implementational duties on the police. In this case, by the time the applications were argued, the issue was whether or not there was a breach of Mr. Hamid’s s. 10(a) Charter rights and in particular whether or not he was given his RTC at the time he was first detained. Mr. Aly did not argue in the alternative, that had he been given his RTC as alleged by DC Miller that there was a failure to implement those rights while Mr. Hamid was detained inside the Unit and before he got to the station.

[132] Given my findings of fact, and in particular my conclusion that the evidence of the officers is not credible, as Mr. Aly submitted, there is no reason to believe that the officer's afforded Mr. Hamid with his RTC when they detained him without grounds and lied about having grounds. I have no difficulty in concluding that Mr. Hamid’s evidence that he was not advised of his RTC until the transport officers arrived is true. Accordingly, I find that his s. 10(a) Charter rights were also breached.

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

[133] Having found that Mr. Hamid’s ss. 8, 9 and 10(a)Charter rights were breached, a s. 24(2) analysis is necessary. However, it is not necessary to review the well-known law that governs a s. 24(2) analysis because Mr. Enright fairly acknowledged that if I found either that the officers were motivated by racial profiling or I accepted the Defence position that the officers were not being truthful, the evidence seized must be excluded; see R. v. Harrison, 2009 SCC 34, [2009] S.C.J. No. 34 at para. 22.

[134] Given my findings of fact, there can be no doubt that the evidence seized from Mr. Hamid must be excluded from his trial. The officers’ actions were intentional and as experienced officers with Guns and Gangs and given their experience executing search warrants looking for firearms, these officers must have been aware of the limitations of what they could do during search warrants. It should have been obvious to the officers that they had no basis to detain Mr. Hamid. He was not a found in nor was he a target of the investigation. All DC Miller knew Mr. Hamid was doing was going to the Unit. The decision to detain Mr. Hamid without grounds was a serious violation of long standing and clear authority and DC Miller ignored this central requirement.

[135] As Mr. Enright said, it would be different if I had found that when the officers detained Mr. Hamid, they did not have the necessary grounds to do so because of a good faith error made in the few seconds they had to make that decision and I had not found that they had all intentionally mislead this Court. That is clearly not this case.

[136] For the reasons I have given, I have found that DC Miller was not being truthful with this Court. The inescapable conclusion, given the evidence of the other three officers who testified, is that they also mislead this Court in order to support DC Miller’s decision to immediately detain Mr. Hamid without formulating grounds and for DC McKnight to do the same with Mr. Abdi. Clearly, the four officers who testified before me made a joint decision to fabricate the story that Mr. Abdillahi began to yell, and Mr. Abdi responded, knowing that without this fabrication that officers Miller and McKnight did not have grounds to lawfully detain Messrs. Hamid and Abdi.

[137] The Courts cannot be seen as condoning or supporting police officers who are prepared to ignore their obligations under the Charter and then fabricate a basis for unlawfully detaining and searching individuals and then come to Court, take an oath and mislead the Court about what happened. The conduct of these officers seriously undermines the administration of justice and this Court must distance itself from that conduct and condemn that conduct. There is no doubt that in these circumstances, the evidence must be excluded.

[138] Having come to this conclusion is disturbing enough, but what is even more troubling to me is that had a handgun not been found and Mr. Hamid had simply been released, like Mr. Abdi was, the fact that he had been unlawfully detained would likely never become known. I do not find that he was detained simply because of the colour of his skin, but even if it was just the fact that he and Mr. Abdi were going to the Unit, that clearly is not enough. I have no doubt that if a woman with a child or elderly couple had exited the elevator and turned towards the Unit, that they would not have been detained, let alone handcuffed and searched.

[139] I appreciate that as a result of this ruling a loaded handgun that was being carried in public in a busy high-rise building, in the afternoon of a Saturday, will not be evidence in this case and that it is very likely the Crown will have to withdraw the charges against Mr. Hamid. That is unfortunate as we see every day the serious injuries and deaths caused by the proliferation of firearms in this city. However, Charter rights must have meaning and the fact that a loaded firearm was found in Mr. Hamid’s possession does not justify what the police did in this case to detain and search him and then mislead this Court in an effort to have this matter proceed to trial, with the evidence they unlawfully obtained, resulting in the inevitable conviction of Mr. Hamid. The ends do not justify the means.

Has the Crown proven beyond a reasonable doubt that the alleged statements made by Mr. Hamid were made voluntarily?

[140] Given my finding that Mr. Hamid’s s. 10(a) Charter rights were breached and he was not advised of his RTC until the transport officers arrived, the Crown is not able to prove beyond a reasonable doubt that any utterances made by Mr. Hamid were made voluntarily save that I find that the first utterance that Mr. Hamid admitted making, that he did not live in the Unit, was a spontaneous utterance that was made before any opportunity to advise him of his RTC arose. Accordingly, I find that this utterance would be admissible at trial.

Disposition

[141] For these reasons, the application by Mr. Hamid asserting a breach of his ss. 8, 9 and 10(a) Charter rights is granted, and all evidence seized from Mr. Hamid shall be excluded from the trial.

[142] The application by the Crown for a declaration that any utterances made by Mr. Hamid were made voluntarily is granted, but only with respect to the first utterance made by Mr. Hamid.

SPIES J.

Date: April 30, 2021

[^1]: As I will come to these officers did not say that they suspected that either Mr. Hamid or Mr. Abdi were in possession of a firearm, but rather that they believed they were connected to the Unit. Although Mr. Aly questioned them both on why they did not simply tell Mr. Hamid and Mr. Abdi to leave, the application was not argued on that basis and so I will not consider whether, if I accept the evidence of the officers, that they did not have grounds to detain Mr. Hamid.

[^2]: This seems surprising given Mr. Abdillahi must have been injured by ETF officers but whether or not this was set out in the ETF records was not pursued.

R. v. Hamid, 2021 ONSC 3227

Case Summary