COURT FILE NO.: CR-19-30000621-0000
DATE: 20210603
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
NAWAF AL ZAHARNA
Caolan Moore, for the Crown
Alan Sobcoff, for the Accused
HEARD: November 30, December 1, 2020 & April 26, 2021
PUBLICATION RESTRICTION NOTICE
By order made under subsection 486.4(1) of the Criminal Code, information that may identify the complainants may not be published, broadcasted or transmitted in any manner.
garton J.
Ruling on admissibility of ACCUSED’S STATEMENT
[1] The accused, Nawaf Al Zaharna, is charged with sexually assaulting the complainant, OM, on December 15, 2018. OM was 16 years old at the time. Mr. Al Zaharna was 23.
[2] Crown counsel brought an application to have a DVD-recorded statement by Mr. Al Zaharna admitted as evidence for the purpose of cross-examination in the event that Mr. Al Zaharna testifies at his trial.
[3] Defence counsel concedes that the statement is voluntary. However, he submits that Mr. Al Zaharna’s rights under ss. 9 and 10(b) of the Canadian Charter of Rights and Freedoms were violated and that the statement should be excluded under s. 24(2) of the Charter. Crown counsel submits that there was no s. 10(b) violation. He concedes the s. 9 violation but argues that the statement should not be excluded.
[4] On April 26, 2021, I advised counsel of my decision to exclude the statement pursuant to s. 24(2) as a result of the s. 9 breach, with reasons to follow. These are those reasons.
The Allegations
[5] On Thursday, December 13, 2018, OM met a male, “Dino,” on Snapchat. Dino is alleged to be 21-year-old Alaeddein Alhajsalem. OM believed that Dino was the same age as she was. They agreed to meet on Friday, December 14, 2018, to party together. OM asked if she could bring along a friend. Mr. Alhajsalem said that would be fine.
[6] Late at night on December 14, 2018, Mr. Alhajsalem and Mr. Al Zaharna drove in a Ford Focus to Brandon Gate Boulevard in Mississauga, where they picked up OM and her friend, KM, who was 15 years old. This was the first time that the two men and two girls had met.
[7] OM and KM told Mr. Alhajsalem and Mr. Al Zaharna that they were 16 and 15 years old, respectively. Mr. Alhajsalem and Mr. Al Zaharna stated that they just wanted to party and there would be “nothing physical.” The two girls agreed to go with them.
[8] They first drove to a school parking lot, where they all smoked marihuana and drank Red Bull and Hennessey cognac.
[9] At 1:30 a.m. on December 15, 2018, Mr. Alhajsalem and Mr. Al Zaharna drove the two girls to the Knights Inn Hotel on Metropolitan Road in Scarborough. OM and KM entered the hotel and used the washroom. Fifteen minutes later, Mr. Al Zaharna entered and rented Room 1208 for the night. He, Mr. Alhajsalem, OM and KM then went to the room, where they started drinking cognac and smoking marihuana.
[10] It is alleged that a short time later, Mr. Alhajsalem followed OM to the washroom, closed the door, pulled up her shirt, lifted up her bra and tried to suck on her breasts. OM tried to pull away and resist his advances.
[11] It is alleged that at some point after OM left the washroom, Mr. Al Zaharna forced her to have sexual intercourse with him. OM believed that Mr. Alhajsalem forced KM to have sexual intercourse with him in the other bed.
[12] OM alleges that at one point, Mr. Al Zaharna went to check on KM in the other bed, which led to both sets of parties switching beds. Mr. Al Zaharna then forced sexual intercourse on OM for a second time. He used a condom on each occasion that he had intercourse with her.
[13] Following the assaults, Mr. Alhajsalem and Mr. Al Zaharna told the girls that they were leaving. OM and KM said that they were going to call the police and report that they had been assaulted.
[14] The two men exited the hotel. OM and KM followed and watched them get into their car. Mr. Alhajsalem told them not to call the police and that he had a gun.
[15] OM and KM told the staff at the front desk that they had been sexually assaulted. They called 911 to report the assaults.
[16] Mr. Alhajsalem and Mr. Al Zaharna drove to the Dreams Café at 2088 Lawrence Avenue East and parked outside the restaurant. They then hailed an Uber driver and told him to take them back to the Knights Inn so they could retrieve some identification that they had left behind.
[17] After arriving at the hotel, where the police were now on scene, the men told the Uber driver to turn around and leave. As he did so, the attending officers received information regarding the suspects’ descriptions. At 3:59 a.m., uniformed officers stopped the Uber car and investigated the occupants. Mr. Alhajsalem and Mr. Al Zaharna were detained while further information was gathered from OM and KM.
[18] At 4:06 a.m., Mr. Al Zaharna and Mr. Alhajsalem were arrested for sexual assault and transported to 41 Division.
Statement by Mr. Al Zaharna
[19] Mr. Al Zaharna was detained by Police Constables Traynor and Day at approximately 4:00 a.m. on Saturday, December 15, 2018 while in the Uber car outside the Knights Inn.
[20] At 4:06 a.m., Officer Traynor arrested Mr. Al Zaharna and read him his rights to counsel. Mr. Al Zaharna was then transported to 41 Division.
[21] At 7:08 a.m., Officer Traynor put Mr. Al Zaharna in touch with duty counsel.
[22] The officer in charge of this case, Detective Matthew Wighton, interviewed OM shortly after her arrival at 41 Division around 12:00 p.m. OM was first taken to the hospital, where a sexual assault kit was completed. She was then driven to the police station.
[23] At 2:35 p.m., Detective Wighton and Detective Glen Cecile commenced the interview of Mr. Al Zaharna, which was completed at 3:23 p.m.
[24] Both Detectives Wighton and Cecile were aware while interviewing Mr. Al Zaharna that he would not be brought to court to appear before a Justice of the Peace that day. They explained that on weekends, unless accused persons are brought to the Old City Hall by 12:30 p.m., the court staff will not accept them or facilitate their appearance before a Justice of the Peace. In order to get Mr. Al Zaharna to court by the 12:30 p.m. deadline, they would have had to leave 41 Division by 12:00 p.m. Their decision to keep Mr. Al Zaharna at 41 Division past that time in order to interview him meant that he was not taken to court and brought before a Justice of the Peace until sometime after 10:00 a.m. on Sunday, December 16, 2018. This was at least 30 hours following his arrest and therefore not in compliance with s. 503 of the Criminal Code, which requires the police to bring an accused before a Justice of the Peace within 24 hours of their arrest.
[25] Both Detectives Wighton and Cecile testified that some years ago, Justices of the Peace used to be on call and could be summoned to the police station at any time for the purpose of remanding prisoners and complying with the 24-hour outer time limit set by s. 503. However, as Detective Wighton explained, the “Ministry took that option away from us” many years ago.
[26] Detective Wighton testified that, given the cut-off time of 12:30 p.m. in terms of getting an accused to Old City Hall and the fact that Justices of the Peace are no longer on call, he “let the 24 hours go by” in this case. He testified that since the change in the cut-off time, which he believed came about in 2013 or 2014, there would have been many instances when the 24-hour limit imposed by s. 503 was breached, although he could not say exactly how often this occurs.
[27] It is apparent from Mr. Al Zaharna’s interview that he was confused and concerned upon learning that he would not be brought to court on December 15, 2018, which was the day of his arrest. He had expected to be taken to court that morning because that is what duty counsel had told him when he spoke to him at 7:08 a.m. I note that Mr. Al Zaharna had no prior involvement with the criminal justice system and obviously relied on what duty counsel said to him in terms of his getting to court and having a bail hearing. However, just prior to his interview, Mr. Al Zaharna was informed by an officer that he would not be taken to court until the following day, December 16. The interview commenced as follows:
Wighton: You spoke to your lawyer?
Al Zaharna: One time.
Wighton: Yeah.
Al Zaharna: When he spoke to me again I told him I want to speak to him again, right?
Wighton: Mm hmm.
Al Zaharna: But I did not speak to him. Yeah.
Wighton: But you talked about the charge you’re facing, right?
Al Zaharna: What?
Wighton: You want – you told me you want to talk about the fact that you’re going to court tomorrow.
Al Zaharna: Yeah.
Wighton: Yeah.
Al Zaharna: …I want to talk to him.
Wighton: Yeah.
Al Zaharna: He’s like – he was telling me that today I was supposed to go to court –
Wighton: Mm.
Al Zaharna: - in the morning and I was waiting for you guys and you guys did not take me to court. I don’t know –
Wighton: No, I didn’t get the paper work still not done that yet. But you do understand you will be charged with sexual assault, right – the girls you picked up last night?
[28] Detective Wighton then launched into an interrogation of Mr. Al Zaharna with respect to the details of the complainant’s allegations.
[29] Detective Wighton testified that he did not stop the interview to let Mr. Al Zaharna speak to duty counsel because in his view there had been no change in Mr. Al Zaharna’s jeopardy: the charge – sexual assault – remained the same and Mr. Al Zaharna had already spoken to duty counsel about that charge. Neither Detective Wighton nor Detective Cecile believed that the change in the accused’s liberty interest – that is, the fact that he was not going to appear before a Justice of the Peace within 24 hours of his arrest as mandated by s. 503 – obliged them to provide him with a second call to counsel. In addition, they noted that nothing could be done to rectify the situation in any event. Whether he spoke or did not speak to duty counsel again, Mr. Al Zaharna was not going to make it to court or appear before a Justice of the Peace within 24 hours, given the “system” that was in place. It was already 2:35 p.m. and over two hours past the time that he had to be at the Old City Hall in order to be brought before a Justice of the Peace.
[30] Detective Wighton agreed that there would have been no “downside” to allowing Mr. Al Zaharna a second call to his lawyer, but Mr. Al Zaharna “wasn’t going anywhere,” given the lack of availability of Justices of the Peace and the current system. He also testified that Mr. Al Zaharna’s concern about getting to court was “not [his] top priority.”
[31] Detective Cecile testified that he could have stopped the interview to allow Mr. Al Zaharna the opportunity to speak to counsel but he was not obliged to do so. In his view, it was a discretionary matter and he would not have wanted to break the flow of the interview. I note, however, that the interview had just begun when Mr. Al Zaharna raised his concerns about not being taken to court until the following day and asked for a second opportunity to speak to duty counsel. His request to speak to counsel was clearly not some kind of ruse or delaying tactic. Rather, he gave the officers a specific reason for his request – he wanted to seek legal advice regarding the delay in his being brought to court – a delay which both officers knew at the time was going to lead to a violation of s. 503. Mr. Al Zaharna wanted to know why, contrary to the legal advice he had received at 7:08 a.m., he was not going to be brought to court that morning and would have to wait until the following day.
[32] The detectives never explained to Mr. Al Zaharna why he would not be taken to court until December 16. Detective Wighton simply told him that he had not completed the paperwork in time.
[33] At the end of the interview, at 3:23 p.m., Detective Cecile told Mr. Al Zaharna again that he would be brought to court “tomorrow morning.” Detective Cecile observed that Mr. Al Zaharna was upset as he had never been in trouble before and was saying that he had never even had a speeding ticket. Detective Cecile told him that the charges were only allegations and that since he had no prior criminal record, he would “probably get bail tomorrow” or “Monday for sure.”
The Section 9 Charter Breach
[34] It is conceded by the Crown that Mr. Al Zaharna’s s. 9 Charter right to be free from arbitrary detention was breached when the police failed to take him before a Justice of the Peace within 24 hours of his arrest. The issue remaining is whether Mr. Al Zaharna’s statement to the police should be excluded under s. 24(2) of the Charter, which states:
Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[35] The first question to be addressed is whether the statement was “obtained in a manner” that violated Mr. Al Zaharna’s s. 9 Charter rights: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 131. Although the statement was completed before the expiry of the 24-hour period, there was a temporal and contextual connection between the breach and obtaining the statement. The police chose to keep Mr. Al Zaharna at 41 Division to obtain a statement from him even though they knew that by doing so he would not appear before a Justice of the Peace within 24 hours of his arrest. Both Detectives Wighton and Cecile knew that if Mr. Al Zaharna was not brought to court by 12:30 p.m., he would not be brought before a Justice of the Peace within 24 hours and that he would have to wait until the following morning for his bail hearing. They chose to keep him at the police station in order to obtain the statement rather than have him taken to court.
[36] The next question is whether the admission of the statement would bring the administration of justice into disrepute. In Grant, at para. 71, the Supreme Court identified three lines of inquiry relevant to the determination of this issue:
[A] court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-related interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
Inquiry 1: The seriousness of the Charter-infringing state conduct
[37] I find that the Charter-infringing conduct in this case was very serious and part of a pattern of systemic neglect of the s. 9 rights of detained persons.
[38] Section 503(1) requires the arresting officer to bring an arrested person, who is not released under any other provision of the Criminal Code, before a justice without unreasonable delay to be dealt with according to law. The outer limit for this delay is 24 hours: R. v. Simpson (1994) 1994 CanLII 4528 (NL CA), 117 Nfld. & P.E.I.R. 110 (C.A.), rev’d on other grounds, 1995 CanLII 120 (SCC), [1995] 1 S.C.R. 449; R. v. Koszulap (1974), 1974 CanLII 1461 (ON CA), 20 C.C.C. (2d) 193 (Ont. C.A.).
[39] In assessing the seriousness of a s. 9 Charter breach in circumstances that are similar to those in the present case, Forestell J., in R. v. Mendez, 2014 ONSC 498, at paras. 103-113, reviewed the two interrelated purposes of s. 503 – namely, judicial review of detention and the transfer of control of accused persons from the police to the courts – which I have set out below.
First Purpose of s. 503: Judicial review of detention
[40] The judicial review of detention as set out in s. 503 was the subject of comment by Nordheimer J., as he then was, in R. v. Brown, [2007] O.J. No. 2830 (S.C.), at para. 9., aff’d 2009 ONCA 633, 247 C.C.C. (3d) 11, where he stated:
The clear spirit and intent … [of ss. 503 and 516 are] to ensure that a person who is arrested had the ability, at the earliest possible opportunity, to have a judicial officer review their detention and determine if the continuation of that detention is warranted. There can be no debate that any person who is arrested is entitled to prompt and early determination as to the legitimacy and necessity of their detention. This is normally accomplished through a formal bail hearing.
[41] Nordheimer J. also noted, at para. 10, that this purpose is bolstered by the Charter in s. 11(e) (constitutional right to bail) and s.10(c) (right to have detention determined by way of Habeas Corpus).
[42] In Mendez, Forestell J., at para. 108, also referred to R. v. Simpson (1994), 1994 CanLII 4528 (NL CA), 117 Nfld. & P.E.I.R. 110 (C.A.), rev’d on other grounds, 1995 CanLII 120 (SCC), [1995] 1 S.C.R. 449, at para. 39, where the Newfoundland Court of Appeal stated:
It is the duty of the arresting officer to ensure that the person is not detained any longer than is absolutely necessary and that, if he or she is not authorized by law to bring about the release, the person is brought before a justice of the peace who may determine whether the detention should continue or not …
Second Purpose of s. 503: Transfer of control of the accused from police to the courts and the prosecution
[43] In reviewing the second purpose of s. 503, that is, to transfer control of the accused from police to the courts and the prosecution, Forestell J., at para. 109, referred to the pre-Charter case of R. v. Precourt (1976), 1976 CanLII 692 (ON CA), 39 C.C.C. (2d) 311 (Ont. C.A.), where Martin J.A. stated, at paras. 43-45:
Sections 465(1)(d) [now s. 537(1)(c)] and 457.1 [now s. 516(1)] require the Justice to remand the accused in custody in a “prison”. The broad definition of a “prison” contained in the Code no doubt introduces greater flexibility with respect to the custodial facility in which the accused may be confined following a remand by a judicial officer than was the case under the former Code. Nevertheless, it is, I think, clear that the Code contemplates custody of a different character following such a remand than the investigative police custody provided for by s. 454 [now s. 503] of the Code.
When the accused has been taken before a judicial officer and remanded on an information the investigative process incidental to arrest, previously referred to, has terminated, a decision to invoke the machinery of the criminal law to try the accused has been made, and he is thereafter under the jurisdiction of the Court. I do not intend to imply, however, that the police may not thereafter, in appropriate circumstances, interview the accused, or conduct procedures involving the accused, for example, an identification parade.
It is implicit, however, in the provisions of the Code and the statutory form of warrant remanding a prisoner that ordinarily where a prisoner is remanded in custody he is to be held in a custodial facility separate from mere holding cells connected with the police function where such a prison is available.
[44] In Mendez, at para. 110, Forestell J. noted that the observation by Martin J.A. that a remand order does not shield an accused from further investigative action was reiterated in R. v. Hobbins, (1980), 1980 CanLII 73 (ON CA), 54 C.C.C.(2d) 353, aff’d, 1982 CanLII 46 (SCC), [1982] 1 S.C.R. 553 and R. v. Miller (1987), 1987 CanLII 4416 (ON CA), 62 O.R. (2d) 97, as well as in R. v. Ashmore, 2011 BCCA 18, [2011] B.C.J. No. 75, leave denied [2011] S.C.C.A. No. 280.
[45] While the ability of the police to continue to investigate is not curtailed by a judicial remand, the remand introduces a level of judicial supervision over the detention: Mendez, at para. 111.
[46] The importance of s. 503 was recognized in Simpson, at para. 36, where Goodridge C.J.N. stated:
Section 503 may be one of the most important procedural provisions of the Criminal Code. The liberty of the subject is dominant. A person not convicted of an offence should never be held in custody except in accordance with constitutionally valid provisions of the Criminal Code or other legislation.
[47] In discussing the predecessor to s. 503, Martin J.A. stated in R. v. Koszulap (1974), 1974 CanLII 1461 (ON CA), 20 C.C.C. (2d) 193 (Ont. C.A.), at para.32:
[T]he administration of criminal justice in this country is predicated upon the due observance of fundamental safeguards. It is the duty of the courts, at all levels, to be vigilant in making sure that these safeguards are not overlooked or ignored.
[48] Nordheimer J. made a similar observation in Brown, at para. 12:
[E]ach of these accused have the right to have the appropriateness of their detention determined at the earliest possible moment. A person who is held in custody, when he or she should not be even for only the briefest of times, has had one of their most fundamental rights, that is the right to liberty, infringed. In this regard, the words of Mr. Justice Iacobucci in R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309 at paragraph 47 bear repeating:
At the heart of a free and democratic society is the liberty of its subjects. Liberty lost is never regained and can never be fully compensated for; therefore, where potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty.
[49] In Mendez, the accused was charged with first degree murder on a Sunday in February 2011. The police were well aware at the time that accused persons would not be seen by a Justice of the Peace on a Saturday or Sunday unless they were brought to the courthouse before 2:00 p.m. Nevertheless, the investigating officer held Mendez at the police station past 2:00 p.m. because she wanted to get a statement from him. In order to optimize the interview, the police took time to gather further information beforehand. As a result, Mendez was not brought before a Justice of the Peace within 24 hours of his arrest.
[50] Forestell J. recognized that it was not unreasonable for the police to require up to 24 hours to properly investigate the murder, which is the outer limit set by s. 503(1). However, the lack of availability of Justices of the Peace after 2:00 p.m. was known to the police. Although Mendez’s statement was made within 24 hours and before his detention became arbitrary, the police knew that he had to be brought to bail court by two o’clock and that otherwise he would not be brought before a Justice of the Peace within 24 hours of his arrest. The police chose to keep him at the police station past 2:00 p.m. in order to obtain a statement. Forestell J. held that it was not reasonable for the police to choose to investigate at the expense of Mendez’s right to be brought before a court. Moreover, the systemic nature of the problem regarding the lack of availability of Justices of the Peace on weekends and the fact that this had been an issue for approximately a decade made the breach extremely serious.
[51] It is apparent from the evidence in the present case that the lack of availability of Justices of the Peace on weekends continues to be a problem. In fact, the scenario that precipitated the s. 9 breach in Mendez is almost identical to the scenario that led to the s. 9 breach of Mr. Al Zaharna’s rights, except that under the present “system,” the window of opportunity for the police to get an accused to court on a weekend is now even narrower. An accused person must now be brought to court by 12:30 p.m. as opposed to 2:00 p.m. Otherwise, they will not be accepted at the court or seen by a Justice of the Peace. The systemic problem identified by Forestell J. in Mendez and which she found had been going on for a decade is still going on.
[52] Detectives Wighton and Cecile were aware of the lack of availability of Justices of the Peace on weekends and the need to get Mr. Al Zaharna to court by 12:30 p.m. in order for him to be brought before a Justice within 24 hours of his arrest, as required by s. 503. In order to meet that deadline, they knew that he would have to leave the station by 12:00 p.m. The detectives chose to keep Mr. Al Zaharna past that time in order to obtain a statement from him. Although Mr. Al Zaharna had arrived at the station sometime after 4:06 a.m. and had spoken to duty counsel at 7:08 a.m., he was not interviewed until 2:35 p.m. because Detective Wighton wanted to speak first to the complainant, who did not arrive at the station until shortly after 12:00 p.m. Although Mr. Al Zaharna’s statement was made within 24 hours of his arrest and before his detention became arbitrary, the detectives knew that by conducting the interview at 2:35 p.m., he would not be brought before a Justice of the Peace within 24 hours. In so doing, they showed a disregard for the clear requirements of the Criminal Code.
[53] I find that it was not reasonable for the police to choose to investigate at the expense of Mr. Al Zaharna’s right to be brought before a Justice of the Peace within 24 hours of his arrest and to let the 24-hour limit imposed by s. 503 “slip by.” The systemic nature of the problem with respect to the availability of Justices of the Peace on weekends made the breach extremely serious.
Inquiry 2: The impact of the breach on the Charter-protected interests of the accused
[54] The second line of inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. The more serious the impact on those protected interests, the greater the risk that admitting the evidence may signal to the public that Charter rights are of little actual value to the citizen, breeding public cynicism and bringing the administration of justice into disrepute: Grant, at para. 76.
[55] I find that the impact on Mr. Al Zaharna’s Charter-protected interests was serious. Since Mr. Al Zaharna had no prior criminal record or involvement in the criminal justice system, he would most likely have been granted bail had he been brought before a Justice of the Peace within the 24-hour time frame set out is s. 305(1). Instead, he was detained overnight at 41 Division and did not appear in bail court until sometime after 10:00 a.m. on December 16, 2018. He was arbitrarily detained for at least six hours.
[56] It is apparent from Mr. Al Zaharna’s interview that the decision not to bring him to court until the morning of December 16, 2018 caused him some distress as it was contrary to what duty counsel had told him to expect when he spoke to him at 7:08 a.m. on December 15. Mr. Al Zaharna was sufficiently concerned about the delay – which ultimately led to his arbitrary detention – that he asked to speak to duty counsel again. He was not afforded that opportunity by the detectives, who knew at the time of his request that his right under s. 503 to be brought before a Justice of the Peace within 24 hours of his arrest would inevitably be violated as a result of their decision to keep him at the police station past 12:00 p.m.
[57] The police never explained to Mr. Al Zaharna the underlying reason as to why he was not brought to court on the morning of December 15 or why he could not be brought to court later that afternoon following his interview. Detective Wighton simply told him that he had not completed the paperwork in time to get him to court in the morning.
Inquiry 3: Society’s interest in an adjudication on the merits
[58] The third line of inquiry is society’s interest in an adjudication on the merits. The charge of sexual assault is obviously serious. However, the Crown does not intend to adduce the statement as part of its case. It will have no role in the prosecution unless Mr. Al Zaharna testifies.
Balancing the three lines of inquiry
[59] The focus of s. 24(2) is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system: Grant, at para. 70. The lines of inquiry are to be viewed in a long-term, forward-looking, and societal perspective: Grant, at para. 71
[60] As observed by Forestell J. in Mendez, the seriousness of the Charter breach in that case was grounded in a systemic failure in the Toronto area to provide access to Justices of the Peace in a manner that would allow the police to utilize the full 24-hour period provided by the Criminal Code. In the present case, the police did not require the full 24-hour period, but they did require some time to interview the complainant and hear her allegations before interviewing Mr. Al Zaharna. Had a Justice of the Peace been available sometime after 3:23 p.m. on December 15, 2018, when Mr. Al Zaharna’s interview ended, there would have been no violation of s. 503 of the Code or a s. 9 Charter breach. There was no evidence in Mendez, nor in this case, of any justification for the lack of availability of Justices of the Peace to remand prisoners in Toronto.
[61] Detectives Wighton and Cecile knew that Justices of the Peace do not deal with arrested persons at the police station and will only deal with them in court on weekends if they arrive at the courthouse by 12:30 p.m. The officers therefore knew, when they kept Mr. Al Zaharna at the police station after 12:00 p.m., that his right to be brought before a Justice of the Peace within 24 hours would be violated. The Charter-infringing police conduct was serious.
[62] After considering and weighing all of the factors, I find that the admission of Mr. Al Zaharna’s statement would bring the administration of justice into disrepute. It is therefore not admissible at his trial.
The Alleged s. 10(b) Charter Breach
[63] Defence counsel submits that when the police kept Mr. Al Zaharna at the police station past the time when he could be brought to Old City Hall by 12:30 p.m., they knew that he would not be appearing before a Justice of the Peace within 24 hours of his arrest and that non-compliance with s. 503 of the Code was inevitable. It was argued that this constituted a change in circumstances – that is, there was a change in the jeopardy that Mr. Al Zaharna was facing as his liberty interests were negatively affected. Hence, pursuant to R. v. Sinclair, 2010 SCC 35, [2010] S.C.R. 310, the police were obligated to provide Mr. Al Zaharna with a further opportunity to consult with counsel. Their refusal to do so constituted a breach of his s. 10(b) Charter rights.
[64] Crown counsel acknowledges that the Supreme Court in Sinclair recognized that “changed circumstances” may trigger an obligation on the part of the police to provide a further opportunity to a detainee to consult with counsel. He submits, however, that the anticipated breach of s. 503 is not one of them. He submits that there was no change in jeopardy as there had been no change in the offence that Mr. Al Zaharna was facing. He also noted that at the time of the interview, there had not as yet been a breach of the 24-hour time limit in s. 503.
[65] In light of my decision to exclude Mr. Al Zaharna’s statement pursuant to s. 24(2) of the Charter based on the s. 9 breach, it is not necessary for me to determine if there was also a s. 10(b) breach.
Conclusion
[66] The statement made by Mr. Al Zaharna is not admissible.
Garton J.
Released: June 3, 2021
COURT FILE NO.: CR-19-30000621-000
DATE:20210603
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
NAWAF AL ZAHARNA
Ruling on admissibility of accused’s statement
Garton J.
Released: June 3, 2021