COURT FILE NO.: CR-17-10000704-0000
DATE: 20210122
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
JASON HIBBERT
Erin Pancer
for the Crown
Fariborz Davoudi
for the accused
HEARD: January 4, 6, 7, 8, 19, 2021
G. ROBERTS J.:
[1] Jason Hibbert stands charged with illegal possession of a handgun (contrary to ss 95(1), 92(1) of the Criminal Code), possession of marijuana for the purpose of trafficking (contrary to s.5(2) of the Controlled Marijuana and Substances Act), and possession of proceeds of crime less than $5000 (contrary to s.355(b) of the Criminal Code).
[2] The charges arise out of a search conducted of Mr. Hibbert's home at 197 Horseley Hill Drive, in relation to a different target (Andrew Lawrence-Bisram). On December 20, 2016, Mr. Lawrence-Bisram was arrested, and his car and two homes associated with him searched, one of which was 197 Horseley Hill Drive. When the police entered and "cleared" 197 Horseley Hill Drive, they discovered Mr. Hibbert and another man (Brandon Stewart) inside bedroom 3 (the police labelled each room and who searched it in a search map made during and after the execution of the search warrant). Police detained both men and kept them detained while they began searching the home. The gun, marijuana and cash were found in bedroom 1, which also contained identification and correspondence associated with Mr. Hibbert. Mr. Hibbert was arrested for being in possession of the contraband. Before leaving the home for the police station, Mr. Hibbert asked to bring his jewelry (found in bedroom 1) with him. When he was initially detained, and declined to exercise the right to counsel, he gave his name and told police he lived in the home in one of the upstairs bedrooms.
[3] Mr. Hibbert brings a Charter application pursuant to sections 8, 9, 10(a), 10(b) and 24(2) seeking to exclude the contraband found during the search, and his statements during the search. For its part, the Crown seeks to prove the voluntariness of the statements. In addition, the Crown concedes that the redacted information to obtain (ITO) the search warrant does not meet the constitutional standard and seeks to invoke the "step 6" procedure from R. v. Garofoli, [1990] 2 S.C.R. 1421 in order to uphold the constitutionality of the search.
[4] I was appointed as case management judge pursuant to s.551.1 of the Criminal Code to hear and decide all these pre-trial applications.
[5] Counsel agreed that the Charter application relating to ss.9, 10(a) and 10(b) and the voluntariness voir dire could be heard together in a blended fashion, followed by the s.8 Garofoli application, and that I would rule after hearing all applications and conduct a single s.24(2) analysis, if necessary.
[6] The Garofoli application has its own discrete record. I will begin with it, as it comes first in the chronology of events. I will then address the balance of the Charter grounds together with the Crown's voluntariness application, as these issues share the same record.
THE GAROFOLI APPLICATION
Did the police have sufficient grounds to search 197 Horseley Hill Drive (s.8 of the Charter)?
[7] The search warrant turned on information provided by a confidential source (CS). The ITO was heavily redacted as a result. As noted, the Crown conceded that the redacted ITO could not support the search, and applied to have me consider the unredacted warrant that was before the authorizing justice pursuant to step 6 of the procedure set out in Garofoli.
[8] Counsel agreed to the following procedure for hearing the Garofoli application. First, a judicial summary of the redactions was created and disclosed to the defence. Second, we planned to consider a defence application to cross-examine the affiant, but this proved unnecessary as defence counsel withdrew his request to cross-examine the affiant following the Charter ss.9 and 10/voluntariness voir dire. Third, I considered whether the defence had sufficient information that the Crown could invoke step 6 of the Garofoli procedure. This step was also shortened as defence counsel conceded that he did have sufficient information for me to consider the redacted material. Finally, I considered the constitutionality of the search.
The judicial summary
[9] The first thing we did was create a judicial summary of the redactions. In advance of the hearing, the Crown helpfully provided defence counsel and me with a copy of the redacted ITO (exhibit 1) and a draft judicial summary (exhibit 2). In addition, prior to the hearing the Crown provided me with a copy of the unredacted ITO (sealed exhibit A). I then asked the Crown to consider each redaction and explain why it was necessary, and why it was summarized in the way it was in the draft judicial summary. The Crown provided this information in a new document. I had some further questions which I typed on this new document, and the Crown responded in kind (sealed exhibit B). As a result of this process, slightly more disclosure was provided in the judicial summary, and an additional redaction was made to the ITO. We arrived at a judicial summary which was provided to the defence (exhibit 3). And the Crown provided a less redacted ITO (exhibit 4).
Can the Crown rely on step 6 of Garofoli?
[10] As noted, defence counsel conceded that the judicial summary created in this case, considered together with the other information he had, such as disclosure and Mr. Hibbert's own knowledge, and the police evidence called by the Crown on the ss.9 and 10 Charter/voluntariness voir dire, was sufficient to permit him to challenge the search warrant, and thus allow the Crown to rely on the step 6 procedure in Garofoli.
[11] I accept this concession, but I am still mindful that, to the extent that some redactions are not described, or are not sufficiently described for Mr. Hibbert to be made aware of their nature, I must disregard those redacted portions when reviewing the warrant. Further, even where the nature of the redacted information has been summarized, I must bear in mind that Mr. Hibbert only has a summary, and not the actual information, in considering what weight to give the redacted information in my assessment: R. v. Crevier, 2015 ONCA 619, at paras.87-88.
Was the search constitutional?
[12] Defence counsel accepted that the Debot criteria must be considered together, and a credible CS may require less confirmation; nonetheless he argued that the police did not do enough to confirm the criminal aspect of the information provided in this case in order for it to be reasonable for the police to rely on it. Defence counsel emphasized that police did not see Andrew Lawrence-Bisram do anything criminal, or even anything unusual. In addition, there was next to nothing to connect him to 197 Horseley Hill Drive. Defence counsel also argued that, assuming the information was received six months before, as he was only told it was provided within six months of the ITO, it was stale, and it was not reasonable to rely on it.
[13] The Crown argued that when the totality of circumstances were considered, including the judicial summary, and the underlying summarized material, there was a sufficient basis for the justice to authorize the search.
The test for reviewing a search warrant
[14] On a Garofoli application, the reviewing justice does not substitute her view for that of the authorizing judge. Rather she asks only whether, based on the totality of circumstances before the authorizing judge, as amplified on review, the authorizing judge could have concluded that the prerequisites for issuing the warrant were met - in this case that there were reasonable grounds to believe that a firearm and related items would be found at 197 Horseley Hill Drive. The existence of fraud, non-disclosure, misleading evidence and new evidence are not pre-requisites for review, but rather relevant to whether there continues to be any basis for the decision of the authorizing judge. A reviewing judge should intervene only if there was no basis upon which the authorizing judge could be satisfied that the pre-conditions for granting the authorization existed: Garofoli, at p.1452; R. v. Araujo, 2000 SCC 65, at paras.51, 54; R. v. Morelli, 2010 SCC 8 at para.40.
[15] The standard is of one of "credibly-based probability", requiring proof of reasonable probability or reasonable belief. The standard is lower than proof beyond a reasonable doubt or even the establishment of a prima facie case, but higher than an experience-based "hunch" or reasonable suspicion. In other words, if the inferences of criminal conduct and the recovery of evidence are reasonable in all the circumstances set out, then the warrant could have been issued.
The Debot "3 C's" analysis of information provided by a CS
[16] In assessing whether it is reasonable to rely on information provided by a CS, the totality of circumstances must be carefully analyzed in light of the "3Cs" described by Justice Wilson in R. v. Debot, [1989] 2 S.C.R. 1140, at p.1168, per Justice Wilson's concurring reasons. See also: R. v. Shivrattan, 2017 ONCA 23 at paras. 27-28; and R. v. Greaves-Bisserarsingh, 2014 ONSC 4900, at para.35
[17] First, was the information provided by the CS compelling? This concern focuses on the reliability of the information including considerations like the following (see R. v. Farrugia, 2012 ONCJ 830 at para.105):
What is the informer's means of knowledge (first-hand or second-hand hearsay; if hearsay, has the CS revealed the source of knowledge and to what extent can that source be independently assessed; or is the source more akin to rumour or gossip)?
Is the information commonplace and easily ascertainable or does it suggest that the CS has knowledge of criminal activity by the target?
How much detail is provided - is the information specific and precise or is it limited to conclusory allegations?
How often and over what period of time did the CS have the opportunity to acquire information about the target?
Is the information current?
[18] A detailed tip, based on first-hand observations that are reasonably current, is generally seen as compelling. In contrast, a vague or conclusory tip, based on gossip or second-hand knowledge, is not: R. v. Rocha, 2012 ONCA 707, at para.28; Greaves-Bisserarsingh, at para.40.
[19] Second, was the CS credible? This concern focuses on issues such as (see R. v. Farrugia, at para.107):
Does the informer have a record of providing reliable information to police? If so, how often and over what time period and in what kind of cases? Have there been any instances where the CS's information was shown to be unreliable?
Does the CS have a criminal record, and if so does it include crimes of dishonesty, such as fraud, or crimes against the administration of justice, such as obstruction of justice or perjury?
What is the motive for the CS to provide information? Does the CS have an interest in the outcome of the investigation or any motive to fabricate? Does the CS have any outstanding charges? Is the CS receiving any benefit?
Was the CS warned about the consequences of providing false information?
[20] Finally, was the information from the CS corroborated or confirmed? This concern focuses on whether there was some independent information providing some assurance that the information from the CS was accurate. Confirmation of the criminal aspect of information provided by a CS is not required: R. v. Caissey, 2008 SCC 65, aff'g 2007 ABCA 380, at para.22; R. v. Herta, 2018 ONCA 927 at para.38; Rocha, at paras.22-24. At the same time, confirmation of well known, innocuous, or general information is of limited value in the analysis: Debot, at pp.218-219; R. v. Zammit (1993), 13 O.R. (3d) 76 (C.A.), at paras.117, 121. The crucial question is whether the confirmation provides meaningful support for the credibility and reliability of the confidential informant. In assessing whether the confirmation provides meaningful support, considerations such as the following may be helpful (see R. v. Farrugia at para.110):
Have the police verified only commonplace details or innocent conduct of which almost anyone could be aware, or have they acquired information that tends to confirm behaviour with enough distinctive features to remove it from the realm of the ordinary or every day?
Does the information gathered by the police conform sufficiently to what one would have anticipated based on the CS's information, such that the possibility of coincidence, mistake, or falsehood is reduced to a degree that is tolerable in the context of the reasonable grounds standard?
[21] The "3 Cs" must be assessed in the totality of circumstances. All three need not be present in every case, and weaknesses in one can be compensated by strengths in the other two. The question is whether it was open to the authorizing justice to conclude that the information provided by the CS, considered in totality and together with the other information in the ITO, established reasonable and probable grounds that a firearm and related items would be found at 197 Horseley Hill Drive in Toronto.
Analysis of the information provided by the CS
[22] As noted, this ITO was based on information provided by a CS. Whether it was open to the authorizing judge to rely on this information turns on the extent to which the information met the Debot "3Cs", considered together in the totality of circumstances.
Was the tip compelling?
[23] I am satisfied that the information provided by the CS in this case was compelling. The redacted ITO, read in conjunction with the judicial summary, indicates that the basis for the CS's information was provided, specifically indicating that at least some of it was first-hand; that it contained specific details and the approximate currency, indicating it was relatively recent. The redacted ITO and judicial summary indicate that information about how long the CS had known Mr. Lawrence-Bisram, and the name the CS knew Mr. Lawrence-Bisram by, was provided to the authorizing justice. The redacted warrant indicates that the CS advised that Mr. Lawrence-Bisram drove an older model silver two-door Mercedes with license plate CACR 599. The police confirmed this through their records and observations. While the fact that Mr. Lawrence-Bisram drove this car is commonplace and could be widely known, the other information provided by the CS was not commonplace. Finally, the redacted warrant indicated that the CS could identify Mr. Lawrence-Bisram from a photograph.
Was the CS credible?
[24] I am satisfied that the CS was credible. The redacted warrant, read together with the judicial summary, indicate that the CS had a history of repeatedly providing reliable information to the police. The unredacted warrant provided details of what this past information involved and its reliability. There are no occasions where the CS's information had proven to be unreliable. The CS's motivation for providing information to police was provided to the authorizing justice, as was whether or not the CS had a criminal record and, if so, what it contained, and whether or not the CS had any outstanding charges and, if so what they were. The CS was warned about the consequences of providing false information. The CS was not given any benefit at the time information was provided to police, and the CS was aware that any benefit would only occur if the information provided proved to be reliable. Finally, the CS was knowledgeable about firearms.
Was the information provided by the CS confirmed/corroborated?
[25] The police set out their efforts to confirm the information received from the CS, which included data base checks, and surveillance of Andrew Lawrence-Bisram on December 17, 18, and 19, the days immediately preceding the search. Both database searches and surveillance confirmed the CS's information that Mr. Lawrence-Bisram drove an older silver Mercedes CACR 599. The database searches and surveillance showed that Mr. Lawrence-Bisram was connected to both 7 Lighthall Crescent and 197 Horseley Hill Drive. The data base searches showed 7 Lighthall Crescent as Mr. Lawrence-Bisram's address. The data base search revealed that he had been shot at 197 Horseley Hill Drive on July 11, 2013. He was observed during surveillance travelling back and forth between the two residences, and repeatedly "walking into both addresses of his own will". One of the times that Mr. Lawrence-Bisram arrived at 197 Horseley Hill Drive on December 18, 1997 was 3 am. While none of these observations confirmed the criminal aspect of the information provided by the CS, I am satisfied that they nonetheless provided meaningful confirmation of information provided by the CS. In the circumstances, which include a CS with a proven track record of providing reliable information, I am satisfied that the confirmation was sufficient.
[26] In all the circumstances, I am satisfied that it was reasonable for the police to rely on the information provided by the CS. The information was detailed, first-hand, and relatively recent. The CS had a track record of providing reliable information. The police were able to take steps which provided meaningful confirmation of some of the information provided by the CS, and the police were able to independently connect Mr. Lawrence-Bisram to 7 Lighthall Crescent, 197 Horseley Hill Drive, and the silver Mercedes with license CACR 599. In all the circumstances I am satisfied that the police had reasonable grounds to believe that a firearm would be found in one of the locations connected to Mr. Lawrence-Bisram, and these included 197 Horseley Hill Drive. It follows that I find no s.8 violation in this case.
THE SECTIONS 9, 10(A), 10(B) APPLICATION AND THE CROWN'S VOLUNTARINESS APPLICATION
[27] The police officers involved in detaining Mr. Hibbert, arresting him, and providing his right to counsel were called by the Crown and testified on the voir dire. Det. Robert Stolf, who was in charge during the execution of the search warrant, initially detained and later arrested Mr. Hibbert. He instructed that the implementation of Mr. Hibbert's right to counsel be delayed while the police investigated whether Mr. Hibbert was connected to another location where the missing firing mechanism from a long gun could be found. Det. Stolf was also the photographer. DC Allan Racette (now Sergeant but hereafter referred to by his rank at the time) required Mr. Hibbert to open a locked safe during the search. DC Pooya Ebrahimi (now Sergeant but hereafter referred to by his rank at the time) was the central note-taker during the execution of the search warrant. The police were short-staffed when they initially executed the search warrant, so DC Ebrahimi was also tasked with watching over Mr. Hibbert and the other man found inside 197 Horseley Hill. Later, back at the station, he was involved in implementing Mr. Hibbert's right to counsel. In addition, the Crown called PC Michael Franken, a uniformed officer who transported Mr. Hibbert to the police station.
[28] Mr. Hibbert did not testify or call any evidence during the voir dire.
[29] Defence counsel did not challenge the Crown's evidence. There were only three areas of factual dispute or uncertainty: 1) whether the marijuana was observed during the entry photographs; 2) whether the police captured the exact wording when they spoke with Mr. Hibbert during the search; and 3) the exact circumstances of the delay in implementing the right to counsel at the station, including the reason Mr. Hibbert was initially placed in an interview room. I will address each of these areas in my analysis.
The background facts and chronology
[30] All three officers involved in the search testified that 197 Horseley Hill Drive was in near complete darkness when they entered. Det. Stolf was first through the door after it was forced open and recalled some faint background light possibly from the living room, and possibly from a television and/or a computer screen in bedroom 3. He explained that they did not pause upon entry to look for light switches. They were executing a search warrant on a residence which they believed contained a firearm. Until the residence was cleared, they were entirely focused on safety, and by extension, speed. Det. Stolf called out “police”, and that they were executing a search warrant, upon entry. He believed he repeated this about ten times as they cleared the home. He explained that he wanted to be sure that any occupants understood who they were and why they were there. Once the home was cleared, and Mr. Hibbert and Mr. Stewart were detained, and entry photographs taken, the police turned to the task of searching.
[31] All three officers testified that the home remained in near complete darkness during the search because they had trouble finding any working lights. Ultimately, they were only able to find a small number of working light bulbs, and ended up conducting the search by moving a lamp from area to area. In addition, all three officers testified that they were relatively short-handed, at least when the search warrant was first executed, and DC Ebrahimi had to do double-duty taking notes and guarding Mr. Hibbert and Mr. Stewart.
[32] Det. Stolf testified that officers called him over to photograph items as they found them. He testified further that the time stamp on the digital camera he was using was an hour fast, as the camera had not been reset for daylight savings time, but otherwise was accurate. I accept his evidence about both points. It was not contested. On consent of both counsel, the electronic time stamps associated with the photographs taken during the search were provided in exhibit 10.
[33] The times DC Ebrahimi noted, which were not contested, together with the electronic time stamps on the photographs taken by Det. Stolf, permit me to arrive at the following chronology of events:
Police receive a tip from a confidential source (CS) in relation to Andrew Lawrence-Bisram (date and circumstances redacted from the ITO).
Police conducted various data bank checks to corroborate the tip (dates redacted).
Police conducted surveillance on December 17, 18, and 19, 2016 to corroborate the tip.
At 9:30 pm on December 19, 2016 police obtain search warrants for 7 Lighthall Crescent, 197 Horseley Hill Drive, and a silver two-door Mercedes with license plate CACR 599, all locations associated with Andrew Lawrence-Bisram.
On December 20, 2016 at approximately 7:53 pm, police observe Mr. Lawrence-Bisram leave 7 Lighthall Crescent and drive to a nearby gas station in his Mercedes. Police arrest him. At approximately 8:05 they execute the search warrant on the Mercedes.
Inside the Mercedes they find the barrel of a long gun. It was photographed at 8:29 pm.
Police proceed to execute the two search warrants on the homes associated with Mr. Lawrence-Bisram. A team from 42 division was assigned to 7 Lighthall Crescent. Detective Stolf's team from guns and gangs was assigned to execute the search warrant on 197 Horseley Hill Drive.
DC Racette left for 197 Horseley Hill Drive as soon as Mr. Lawrence-Bisram was arrested. He watched the house while he waited for the rest of the team to arrive. When the team arrived, DC Ebrahimi was instructed to watch the rear door of the home.
At approximately 8:45 pm police forced open the front door of 197 Horseley Hill Drive. Det. Stolf was first inside, announcing who they were and why they were there as they entered. He repeated “police”, “search warrant”, as they moved through the house.
Police found Jason Hibbert and Brandon Stewart inside bedroom 3 on the third floor. Both men were ordered to the ground, handcuffed to the rear, and subjected to a cursory pat-down search for weapons. The two men were the only people found inside the house.
Mr. Hibbert and Mr. Stewart were taken downstairs to the living room and seated on the ground. Det. Stolf told Mr. Hibbert that he was being detained for possession of an unauthorized firearm and to facilitate the execution of the search warrant, and advised him of his right to counsel. Mr. Hibbert declined to exercise his right to counsel. Det. Stolf estimated that this took place around 8:50 pm.
Det. Stolf took "entry photographs". These photographs are time-stamped between 9:01 and 9:08 pm on December 20, 2016. Two of the entry photographs (time stamped 9:06 pm) are of a blue plastic container with what appears to be loose marijuana, a zip lock bag containing what appears to be packaged marijuana, and a digital scale, on top of a plastic shelving unit in in bedroom 1.
Once the house was cleared and the living room was searched, Mr. Hibbert and Mr. Stewart were seated on the couch in the living room.
DC Racette found a safe inside bedroom 1 at approximately 9:10 pm. It was locked. He asked Mr. Hibbert for the combination. Mr. Hibbert refused to provide the combination, but agreed to open the safe, which he did.
The first photograph of an item found and seized is of the open safe in bedroom 1. It is time stamped 9:16 pm.
A photograph of the contents of the safe (a box of shoe laces and a glasses case containing glasses and cash) is time stamped 9:17 pm.
A photograph of the stock of a long gun, inside a long gun case found in the basement, is time stamped 9:51 pm.
A photograph of the container of marijuana, and a digital scale and cell phone next to it, found on a plastic storage unit in bedroom 1, is time stamped 10:03 pm.
The first photograph of the (loaded) handgun is time stamped 10:06 pm. Photographs of the area where it was found (tucked inside folded size 34 jeans in the bottom of the dresser in the corner of bedroom 1) are time stamped 10:04 and 10:05 pm. A photograph of the label showing the size of the jeans encasing the firearm is time stamped 10:08 pm.
Photographs of clothing and its size, and identification and correspondence in the name of Mr. Hibbert, are time stamped between 10:08 pm and 10:10 pm. Additional photographs of clothing in bedroom 1 are time stamped between 10:59 pm and 11:28 pm.
Det. Stolf arrested Mr. Hibbert for being in possession of a loaded firearm, possession of marijuana for the purpose of trafficking, and possession of proceeds of crime. Mr. Hibbert was advised of his right to counsel. Mr. Hibbert asked to speak to a lawyer and was told this would happen at the station. The exact time that this occurred was not noted but is accepted to be shortly after the discovery of the handgun and the identification and correspondence linking Mr. Hibbert to the room where the handgun was found.
Det. Stolf called for uniformed officers to transport Mr. Hibbert to the police station (42 Division) around 10:20 pm.
Around 10:15 pm, a third party (Isaiah Coley Lewis) walked into the home. He was initially detained and investigated before being released at 10:28 pm. Brandon Stewart was released at 10:35 pm.
DC Racette retrieved a top for Mr. Hibbert to wear when he left for the station (time not noted).
Mr. Hibbert asked to bring his jewelry with him to the station. DC Ebrahimi retrieved it for him from bedroom 1. Neither time was noted.
PC Franken paraded for duty at 11 pm and was told the search team was waiting for transport. He arrived at 197 Horseley Hill Drive at 11:29 pm and took custody of Mr. Hibbert at 11:30 pm. He transported Mr. Hibbert to 42 Division between 11:38-42 pm.
Exit photographs of 197 Horseley Hill Drive are time stamped between 11:38 pm and 11:43 pm.
Upon arrival at 42 Division, Mr. Hibbert was paraded before the booking Sergeant at 11:46 pm.
The search team arrived back at 42 Division and began a debrief shortly after midnight. The de-brief included topics for further investigation, including any other locations connected with Mr. Hibbert.
PC Franken conducted a level 3 search on Mr. Hibbert at 12:10 am on December 21, 2016. This took about 5 minutes and then Mr. Hibbert was taken to an interview room.
Around 1:21 am Mr. Hibbert's mother call from Jamaica and DC Racette, who answered the call, put it through to Mr. Hibbert.
At 1:29 am police contacted duty counsel and left a voice mail.
At 1:41 am duty counsel returned the call and Mr. Hibbert spoke to duty counsel.
[34] All three officers involved in the search, detention and arrest, and the transporting officer, testified that at no time did they make any promises to Mr. Hibbert, or offer any hope of advantage. Nor did they ever threaten him in any way. Mr. Hibbert did not appear to be impaired in any way, or have any mental health issues, and he is a native English-speaker.
Section 9 of the Charter
[35] Detective Stolf testified that as he arrived on the upstairs landing after entering the home and moving through the ground floor, a young man was at the threshold of bedroom 1, just leaving, followed by another man just inside. Det. Stolf ordered both men to the ground. Both men complied. Det. Stolf handcuffed the second man, who is admitted to be the accused, Jason Hibbert, with his hands at his back, and did a pat down search for weapons. Det. Stolf advised Mr. Hibbert that he was being detained while a search warrant was executed. DC Oliver detained the first man (subsequently identified as Brandon Stewart). Det. Stolf helped Mr. Hibbert to his feet, and both men were taken to the living room.
[36] Det. Stolf dealt with Mr. Hibbert. He advised Mr. Hibbert that he was being detained for possession of a firearm and the execution of a search warrant. He advised him of his right to counsel, reading from the paper he keeps with him (he read it in court). The following exchange then occurred:
Q: Do you understand?
A: Whats going on?
[37] Det Stolf repeated that they were executing a search warrant, and again asked:
Q: Do you understand?
A: Ya
Q: Do you wish to call a lawyer now?
A: No
[38] Mr. Hibbert was then given the caution (it was read in court). He appeared to understand. He spoke English, and did not appear impaired.
Q: Do you understand?
A: Ya
Q: What is your name?
A: Jalani Hibbert DOB 99.07.19
Q: Do you live here?
A: Ya
Q: What is your room?
A: Upstairs
[39] At that time Det. Stolf was "to a certain degree" satisfied that Mr. Hibbert lived in the home, and gave him a copy of the search warrant, putting it on his lap. It was dark but there was some background light. Det. Stolf explained that he wanted both men to be re-assured that they were police officers, and not intruders, and they were executing a search warrant.
[40] Detective Stolf continued to detain both men, and kept their handcuffs on, explaining that he believed it was the only safe thing to do in all the circumstances, which included the following:
they believed there was a gun in the house;
they did not know where the gun was;
they had not confirmed the identity of the men and did not know anything about them;
the house was almost completely dark;
the initial team in the door was relatively small (6 officers including Stolf).
[41] Detective Stolf did not call anyone to transport the men. They were not the targets of the search and he had no grounds to arrest them. They were only being detained at the time. He made them as comfortable as he could.
[42] There is no issue that Mr. Hibbert was physically detained as soon as police found him after they entered 197 Horseley Hill Drive to execute the search warrant. Nor does defence counsel take any issue with the decision to detain Mr. Hibbert in the circumstances. Defence counsel's complaint is that Mr. Hibbert was not told the full reason for the investigative detention, and it went on for too long. Specifically, the marijuana was found when the entry photographs were taken, thus Mr. Hibbert should have been re-advised of his right to counsel at that time, in light of the additional potential jeopardy posed by the marijuana, and also arrested in relation to the marijuana.
[43] While the marijuana is evident when looking at the entry photographs after the fact, it must be remembered that the house was in near darkness at the time the entry photographs were taken. The items were illuminated only very briefly by the camera flash. Det. Stolf took two photographs of nearly everything: one closer up and one further back. I am satisfied that, in the circumstances, the police did not see the marijuana at the time they took the entry photographs. In light of this factual finding, it follows that I find no violation of s.9 in the circumstances of this case.
Sections 10(a) and 10(b) of the Charter
[44] Defence counsel complains that the right to counsel was breached in three ways. First, Mr. Hibbert was not re-advised of his right to counsel when the police found marijuana shortly after entering the home. This complaint must fail in light of my factual finding that the police did not find the marijuana during the entry photos but rather right around the time the gun and identification were found, at which point Mr. Hibbert was promptly arrested in relation to the gun, marijuana and proceeds of crime. Second, Mr. Hibbert should have been re-advised of his right to counsel before being asked for the combination to the safe. Third, after Mr. Hibbert was arrested, and invoked his right to counsel, it was violated when the police delayed its implementation.
The right to counsel
[45] Section 10 of the Charter provides that "Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right." The two parts are interconnected. Section 10(a) ensures that an individual knows the reason for the detention, so they can decide whether to submit to detention or arrest, and so they understand the nature of their jeopardy and can make an informed choice whether to exercise the right to counsel. Section 10(b) ensures that a detained individual understands the right to silence and can make a meaningful choice about whether to exercise it.
[46] It is well-established that when the police detain someone, they must comply with s. 10(a) and promptly inform the detainee of the reason(s) for the arrest or detention. The police do not need to use any particular words; substance, not form governs. The entire context must be considered to determine whether, in the circumstances, the detainee had sufficient understanding of their jeopardy to make an informed choice about whether to exercise the right to counsel and the right to remain silent. The essential question is whether the detainee can reasonably be supposed to have understood the basis for the investigation: R. v. Evans, [1991] 1 S.C.R. 869; R. v. Mann, 2004 SCC 52.
[47] Once 10(a) has been complied with, subsection (b) imposes three obligations on police. The first is informational and the second and third are implementational. First, police must advise of the right to counsel "without delay". This means immediately: R. v. Suberu, 2009 SCC 33 at para.41. If the detainee expresses a wish to exercise the right to counsel, the implementational duties are engaged: second, the state must provide the detainee with a reasonable opportunity to exercise the right to counsel; third, the state must refrain from questioning or eliciting evidence until the detainee has been allowed to exercise the reasonable opportunity: R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Manninen, [1987] 1 S.C.R. 12; R. v. Baig, [1987] 2 S.C.R. 537 at 540; R. v. Fuller, 2012 ONCA 565, paras. 16-17; R. v. Owens, 2015 ONCA 652, paras. 22-31 47.
[48] In certain circumstances a detainee must be re-advised of their right to counsel, such as:
when police introduce a non-routine investigative procedure involving the detainee;
the jeopardy changes and the accused faces a more serious charge than originally the case;
there is reason to question whether the detainee understood the s. 10(b) right or the advice of counsel: R. v. Sinclair, 2010 SCC 35; R. v. Tahmasebi, 2020 ONCA 47.
[49] There are exceptions to the immediacy requirement of the informational component of the right to counsel and, where engaged, the implementational components, where reasonable in the particular circumstances of the case. Specifically, some delay may be justified by: (1) police safety or public safety; (2) a need to preserve evidence; or (3) an express or implicit legislative override, justified under s. 1 of the Charter (e.g., detaining motorists for sobriety and traffic safety stops): R. v. Debot, [1989] 2 S.C.R. 1140; R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Thomsen, [1988] 1 S.C.R. 640; R. v. Orbanski; R. v. Elias, 2005 SCC 37 49; R. v. Taylor, 2014 SCC 50.
Did the police violate Mr. Hibbert’s right to counsel by asking him to open the safe without re-advising him of his right to counsel?
[50] DC Racette was responsible for searching bedroom 1, together with DC Doyle. DC Racette turned right at the doorway and searched the closet on the north wall and the dresser on the west wall. DC Doyle went straight in and searched the bed and south east corner. The first thing DC Racette came upon was the safe in the bottom of the closet on the north wall. It was locked. He went downstairs and asked Mr. Hibbert for the combination. He noted the time when he did this was 9:10 pm. Mr. Hibbert would not provide the combination but agreed to open the safe. Det. Racette explained that he asked for Mr. Hibbert's help because he had a specific prior experience, which he recounted, involving smashing open a safe while executing a search warrant only to have a grenade roll out. The experience stuck with him and as a result he always tried to unlock a safe rather than force it open.
[51] DC Racette testified that he understood that Mr. Hibbert would have been given his right to counsel upon detention, but readily acknowledged that he did not verify that was the case before asking Mr. Hibbert for the combination or to open the safe. He testified that his interaction with Mr. Hibbert was limited to getting him to open the safe, and to retrieving a sweater for him before he left for the station.
[52] I accept DC Racette's evidence about the circumstances in which the safe was opened. It was not entirely clear whether Det. Stolf was involved in the decision to have Mr. Hibbert open the safe; both initially thought not, but DC Racette accepted his evidence from the preliminary inquiry that he would have told Stolf. I do not think anything turns on any inconsistency on this point. The search took place four years ago, during difficult and dynamic circumstances, and the central note-taker was relatively inexperienced and doing double-duty. There is no controversy about the important circumstances: Mr. Hibbert was not re-advised of his right to counsel before being directed to open the safe. Further, there was no suggestion that Mr. Hibbert was simply asked whether he would open the safe and voluntarily agreed to do so; he was effectively directed to open it. DC Racette did not sugar coat what happened, or suggest that because Mr. Hibbert would not provide the combination but agreed to open the safe he was volunteering to do so. While this circumstance suggests that Mr. Hibbert was not particularly threatened by DC Racette, and was prepared to stand up to him, I do not think it means his decision to open the safe was a voluntary one. In the circumstances I find that Mr. Hibbert was compelled by police to open the safe.
[53] I accept DC Racette's explanation for why he had Mr. Hibbert open the safe. It was not controverted. I also find that his actions were reasonable in all the circumstances. The police had the right, indeed the obligation, to search inside the safe. It was not just a possible place for the firearm they believed was in the home, but a likely place: R. v. Lewis, 2013 ONSC 742. The fact that it was locked did not change the police obligation to search inside it: R. v. Rochwell, 2012 ONSC 5594 at para.54, cited with approval in R. v. Fearon, 2014 SCC 77.
[54] The fact that Mr. Hibbert could open the safe, which contained cash, eyeglasses and shoelaces, and which was located in the bedroom which contained marijuana and the loaded handgun, is highly probative in relation to whether he was in possession of the contraband. But the Crown does not seek to lead the fact that he could open the safe. She cannot. I have found that he was compelled by police to open the safe. Mr. Hibbert’s actions in opening the safe were not voluntary. Nor was the police direction which prompted them constitutional.
[55] But the contents of the safe are another matter. The contents exist entirely apart from Mr. Hibbert’s compelled actions in opening the safe. In requiring Mr. Hibbert to open the safe the police were not creating evidence, as in the line-up in R. v. LeClair, [1989] 1 S.C.R. 3. Nor were they creating grounds to obtain evidence, as in the case of a roadside breath screen or sobriety test: R. v. Orbanski, 2005 SCC 37. In requiring Mr. Hibbert to open the safe the police were simply discharging their obligation to search a space they were permitted, indeed obliged, to search, as quickly and safely as possible and without causing any property damage to the safe. Had Mr. Hibbert not opened the safe, the police would have had to smash or pry it open, damaging it, delaying the search, and potentially putting themselves and people close by at risk in the event there was something dangerous inside the safe.
[56] Nonetheless, I find that asking Mr. Hibbert to assist in opening the safe, without re-advising him of his right to counsel first, violated his right to counsel. But the police actions were reasonable in the circumstances, provided evidence about Mr. Hibbert’s ability to unlock the safe is not admissible at trial.
Did the delay in implementing Mr. Hibbert’s right to counsel violate s.10(b)?
[57] Shortly after the marijuana, gun and identification were found, Det. Stolf went downstairs and advised Mr. Hibbert that he was under arrest for possession of a handgun, possession of marijuana for the purpose of trafficking, and possession of proceeds. Mr. Hibbert put his head down. He did not say anything. Det. Stolf then read him his right to counsel (again reading from the paper he kept with him) and the following exchange occurred:
Q: Do you understand?
A: Ya
Q: Do you wish to call a lawyer now?
A: Um, ya
[58] Det. Stolf advised Mr. Hibbert that he would be given access to a telephone while in custody. Det. Stolf explained that he did not believe it was prudent to permit Mr. Hibbert to call a lawyer then and there for the following reasons:
he did not know whether there was a telephone in the house;
he did not feel he could give Mr. Hibbert privacy;
the house was still in darkness so it was not safe;
they were still searching; and
based on the barrel and the stock that had been found, Det. Stolf was concerned there was another firearm outstanding, a firearm which was connected to 197 Horseley Hill Drive and thus to Mr. Hibbert.
[59] As noted above, Mr. Hibbert was initially detained before 9 pm on December 16, 2016. He was given the informational component of the right to counsel immediately, but he indicated that he did not wish to speak to counsel, thus the implementational duties attached to the right to counsel were not engaged.
[60] Mr. Hibbert was arrested shortly after 10 pm on December 16, 2016. He was again given the informational component of the right to counsel immediately, and cautioned. This time he indicated that he wanted to speak to counsel, engaging the implementational duties attached to the right to counsel. He was told he would be put in touch with counsel at the station. Det. Stolf called for a uniformed officer to transport Mr. Hibbert to the station, but also gave instructions that he would oversee the provision of the right to counsel. Mr. Hibbert sat and waited for over an hour before being taken to the station. Once at the station he was booked, searched and then waited until shortly after 1:30 am before being put in touch with counsel. I calculate the delay in facilitating the right to counsel at approximately 3 ½ hours.
[61] As noted above, once the right to counsel is invoked, the associated implementational duties arise immediately. The detaining or arresting officer must facilitate access to a lawyer at the first reasonably available opportunity subject only to the recognized exceptions noted above. There must be a specific assessment that a delay is required in the particular circumstances of the case, and the delay should only continue for as long as necessary. The suspension is not meant to be permanent or convenient, and the police must comply with the implementational component as soon as circumstances reasonably permit. The burden lies on the Crown to show that a given delay was reasonable in the circumstances. This is a factual inquiry which will turn on the particular circumstances of the case: R. v. Taylor, 2014 SCC 50, paras. 24-25; R. v. Rover, 2018 ONCA 745, per Doherty JA at para. 25-28; R. v. Hobeika, 2020 ONCA 750 at para.73; R. v. Pileggi, 2021 ONCA 4 at 87
[62] In this case some initial delay in facilitating the right to counsel was reasonable (see e.g. Pileggi at paras.75-78). This was a matter of police safety. The house was in near-complete darkness, the search was not finished, and the police had reason to believe a firearm was outstanding. It was also a matter of practical necessity. There was no secure private space for Mr. Hibbert to exercise his right to counsel.
[63] Some delay was also understandable in light of the practical reality of getting Mr. Hibbert to a police station where he could exercise his right to counsel safely and privately. Det. Stolf testified that it was his preferred practice where possible to transport a prisoner in a uniform car because such cars are equipped with a secure back, and video cameras which record sound and images. The members of the search team were all driving unmarked police cars. Det. Stolf testified that it was his understanding that a form of triage was used in dispatching marked police cars. The wait would depend on the urgency of the need, and what was going on elsewhere, something Det. Stolf was not privy to. He testified that he was aware that time passed before the transport he requested arrived, but he did not turn his mind to just how much time, as he was busy with other things. Also, he was going to delay the right to counsel in any event.
[64] Det. Stolf determined that Mr. Hibbert should not be given his right to counsel until he investigated whether Mr. Hibbert was connected to another location where the firing part of the long gun could be stored. Det. Stolf testified that the search of the car and the house caused him concern that there was an outstanding firearm. They had found the barrel in a long gun in the target's car. They then found the stock of a long gun in the basement at 197 Horseley Hill Drive, inside a long gun case. Mr. Hibbert was connected to 197 Horseley Hill Drive, and thus the long gun case and stock. Det. Stolf decided to delay Mr. Hibbert's right to counsel while he investigated whether there were any other locations associated with Mr. Hibbert that should be investigated and possibly searched.
[65] Defence counsel argued that Det. Stolf's decision did not make sense given that two individuals (Mr. Stewart and Mr. Lewis) were released from the scene, making the fact of the search of 197 Horseley Hills Drive a matter that was known to others. But there is no evidence that either of these individuals was in a position to have intimate knowledge of Mr. Hibbert, and whether he was connected to any other locations, or in a position to access any of these possible other locations.
[66] Defence counsel also argued that the fact that Mr. Hibbert was placed in an interview room, and not the cells, after being booked and searched suggested that police intended to interview him before implementing his right to counsel. This assertion was not put to any of the officers in cross-examination, and there is no evidence in support of it. In addition, it is belied by the record of what actually happened. The interview room appears to be the place Mr. Hibbert took the call from his mother, and consulted with counsel. And the police never sought to interview him, even after his right to counsel was facilitated.
[67] I accept Det. Stolf's evidence that further investigation of possible locations connected with Mr. Hibbert was required in light of the outstanding firearm, and its connection to 197 Horseley Hill Drive and by extension to Mr. Hibbert. Both DC Racette and DC Ebrahimi testified that they were interested in other addresses associated with Mr. Hibbert because of the long gun parts they found, and the fact that the firing part was outstanding. Only DC Ebrahimi could recall a related delay in the right to counsel being explicitly discussed at the de-brief following the search. DC Ebrahimi was the one ultimately tasked with contacting duty counsel. He believed that he was told to do so before Mr. Hibbert's mother called. DC Racette did not recall any discussion about delaying the right to counsel at the debrief, or any reason not to put the call from Mr. Hibbert's mother through to him. The transporting officer recalled that his instructions were that the search team would look after the right to counsel.
[68] The Crown bore the onus to establish that the delay in facilitating the right to counsel was reasonable in the circumstances. I am satisfied that they discharged their onus of showing that some delay was reasonable because of the need for additional investigation of the outstanding "firing part" of a long gun. However, I do not believe they discharged their onus of showing that the delay was as short as possible in all the circumstances. This must be part of the reasonableness assessment. In the circumstances of this case, I believe it effectively required the police to prioritize the further investigation which delayed access to counsel. Based on the evidence that I heard, this does not appear to have been done. Looking for other addresses associated with Mr. Hibbert appears to have been only one of a number of tasks which required attention after the search. Further, there was no concrete evidence as to when the further investigation ended, and the implementation delay could end. While I am mindful that over four years have passed, the fact that DC Ebrahimi remembered the delay to the right to counsel being discussed during the de-brief, and DC Racette did not, suggest that it was not given significant emphasis and priority.
[69] I am mindful that this was a highly competent and professional team doing difficult work, in dangerous circumstances. They obtained search warrants before arresting their target. Having found Mr. Hibbert inside 197 Horseley Hill Drive, where a piece of a long gun was found inside a case, they understood what the constitution required; the informational component of the right to counsel had to be provided immediately, but the particular circumstances of the case required some delay of the implementational component. I am also aware that I should not be quick to second-guess their operational decisions. I am conscious that I can sit at my desk and read and re-read and re-read again the key Charter decisions and agonize about how they should apply in the particular factual circumstances of this case. Det. Stolf and his team had no such luxury. Having carefully considered the evidence in this case, however, I conclude that the Crown has discharged its onus of showing that it was reasonable to delay the implementation of the right to counsel, but not that the delay was as short as possible in the circumstances. As a result, I find a violation of the right to counsel.
Did the Crown prove beyond a reasonable doubt that Mr. Hibbert’s statements were voluntary?
[70] The Crown seeks to prove Mr. Hibbert's statements on the night of December 20th, 2016 as voluntary and admissible, specifically the answers Mr. Hibbert gave to Det. Stolf after he was detained and given his rights to counsel (his name, date of birth, the fact that he resided in the house and that his room was upstairs); and Mr. Hibbert's spontaneous utterance when he asked to take his jewelery with him to the station (and it was retrieved from his bedroom).
[71] The defence argues that the record of these statements is not sufficiently precise to permit the Crown to discharge its onus of proving the statements beyond a reasonable doubt. Defence counsel points to the fact that the police did not note the words spoken by Mr. Hibbert until they were back at the station.
[72] The contemporary voluntariness or confessions rule seeks to strike a balance between the interest in avoiding false confessions, and protecting the fairness and integrity of the criminal justice system, while at the same time permitting the effective investigation of crime. A broad contextual approach should be taken to assessing the voluntariness of a statement. Conceptually, there are three categories in the inquiry, but they must be considered together to determine whether the will of the accused was overborne. The Crown bears the burden of establishing this beyond a reasonable doubt. An accused need only raise a reasonable doubt.
[73] The first category involves assessing whether the accused had an effective choice to speak and whether their will was overborne by police action in the circumstances. The focus is on whether there has been "a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise." The second category involves considering whether there has been an atmosphere of oppression created by the police, sufficient to cast doubt on the voluntariness of the statement. Finally, the court must also consider whether the individual has an "operating mind". This is a low threshold. The accused must simply have "sufficient cognitive capacity" to know what he is saying and that he is saying it to the police, who can use it against him.
[74] All the officers testified that at no point were any threats or promises made to Mr. Hibbert, and there is no suggestion otherwise. In addition, I find that Mr. Hibbert was made as comfortable as possible as soon as possible. There is no suggestion that Mr. Hibbert was impaired in any way, or did not understand the language or what was happening.
[75] I am satisfied that the Crown has discharged its onus of establishing that Mr. Hibbert's initial responses to Det. Stolf were voluntary. Although Det. Stolf candidly acknowledged that he did not note Mr. Hibbert's responses until he was back at the station after finishing the search, the questions he asked were simple and flowed from the general circumstances at the time and I am satisfied that he recorded Mr. Hibbert's responses accurately and completely. At the time the questions were asked and answered, Mr. Hibbert had been properly given his right to counsel but declined it. As a result, the duty to hold off questioning was not engaged, and these questions were fair game, especially since they were open-ended and general and related to the circumstances as the police knew them to be at the time: finding Mr. Hibbert in the location of the search. In the circumstances, where the police were not seeking to take a statement from Mr. Hibbert, but simply to ask some general questions related to their circumstances, I draw no adverse inference from the failure to record Mr. Hibbert's responses. Finally, I note that the questions and answers preceded DC Racette's direction that Mr. Hibbert assist in opening the safe. In sum, I find that Mr. Hibbert's answers were voluntary and admissible.
[76] I also find that Mr. Hibbert's request to bring his jewelry with him to the police station was voluntary and admissible. Again, I am mindful that Det. Stolf did not note the statement until they were back at the station. But it was a simple request which made sense in the circumstances, especially as the police were able to retrieve the jewelry from bedroom 1. I am satisfied that Det. Stolf noted the statement accurately and completely. This was a spontaneous utterance and the police did nothing to elicit it, beyond doing their job and transporting Mr. Hibbert to the station. In these circumstances, I draw no adverse inference from the failure to record it. I find it voluntary and admissible.
Should the evidence obtained during the search, and Mr. Hibbert's statements, be excluded pursuant to s.24(2)?
[77] The modern approach to whether or not evidence should be excluded under s.24(2) of the Charter following a finding of a Charter breach was established in R. v. Grant, 2009 SCC 32, which set out the now well-established three lines of inquiry.
The seriousness of the Charter-infringing conduct
[78] This line of inquiry involves situating the state misconduct on a continuum from inadvertent, reasonable mistakes through negligence to deliberate or systemic misconduct.
[79] In this case, I have found two distinct violations of the right to counsel. I believe that both violations reflect police conduct that was reasonable in all the circumstances, and both fall squarely at the non-serious end of the continuum.
[80] I found DC Racette's decision to compel Mr. Hibbert to open the safe reasonable in the circumstances. DC Racette was not trying to obtain evidence from Mr. Hibbert, as was the case in R. v. Pileggi, at paras.64-74 for example (where the fruits of the search were still admitted). Rather he was trying to discharge his obligation to search inside the safe as quickly and safely as possible and without damaging the safe.
[81] As I have described above, the contents of the safe existed entirely apart from any actions on Mr. Hibbert’s part in opening the safe. There is no connection at all between what was inside the safe, which the police had every right to search and seize, and any compulsion on non-compliance with the Charter. The same is true of the statements that Mr. Hibbert made during the search: they are entirely unconnected to the Charter violations.
[82] And, as it turns out, speed was important. The police believed that the firing mechanism of a long gun was outstanding. A barrel from a long gun had been found in the target's car. The butt of a long gun was subsequently found in the basement of 197 Horseley Hill Drive inside a long gun case. This suggested the long gun was connected to Horseley Hill Drive, and by extension to Mr. Hibbert. Knowing what was inside the safe was part of knowing whether further investigation was required. It was a logical place to store records relating to a further location, such as a storage locker, where the firing part of the long gun could be found. Searching inside the safe as quickly as possible sped along the further investigation required by the outstanding firearm.
[83] I also found that it was reasonable for police to delay the implementation of the right to counsel while they investigated whether there were further locations connected to Mr. Hibbert where the outstanding firing part of the long gun could be found. To the extent that I found the police should have done more to prioritize this investigation while Mr. Hibbert's right to counsel was being delayed, and missed the constitutional mark, it was not by much.
[84] This was manifestly not a case like R. v. Rover, 2018 ONCA 745 where the evidence revealed an improper practice of police routinely delaying access to counsel whenever they were seeking to obtain or execute a search warrant in relation to an arrested person. Nor was it a case like R. v. McGuffie, 2016 ONCA 365, where the police misunderstood or abused what the Charter required. Or a case like R. v. Noel, 2019 ONCA 860, where no one took charge of arranging a call to counsel after Mr. Noel arrived at the station. To the contrary, the delay here resulted from a considered situation-specific response to the circumstances of the case by a highly skilled and professional police officer who deeply understood his constitutional obligations. I simply found during my ex post facto review that the Crown did not establish that the delay was as short as possible in the circumstances. The breach was significantly less serious than that in R. v. Hobeika, 2020 ONCA 750 (unexplained over 4 hour delay in implementing the right to counsel); R. v. Leonard, 2020 ONCA 802 (the trial judge found no breach arising from an implementation delay while they applied for a search warrant where there was credible information about an outstanding firearm; the breach arose from the fact police questioned Mr. Leonard about the outstanding firearm during the delay); and R. v. Pileggi, (insufficiently explained 3 hour delay in implementing the right to counsel; there was also a breach of the duty to hold off due to questions by the detaining officer which were found to be an attempt to elicit evidence).
The impact of the breach on the Charter-protected interests of the accused
[85] While it is well-established that no causal connection is required to engage s.24(2) of the Charter, it is equally well-established that the absence of a causal connection between a violation and evidence can diminish the impact of a violation, and the need for exclusion: Pileggi, at paras.108, 120. I find the absence of any causal connection between the violations to the right to counsel that I found occurred here, and the evidence obtained, and the statements made, during the search significantly diminish any impact of the violations.
[86] DC Racette was authorized and indeed duty-bound to search inside the safe in this case. I have found that in compelling Mr. Hibbert to open it, he was not trying to create or obtain evidence from Mr. Hibbert, but simply trying to discharge his obligation to execute the search warrant as quickly, safely and with the least amount of property damage as possible. The contents of the safe existed entirely apart from any compulsion or Charter breach.
[87] Turning to the delay, it is not associated with any evidence, or even any attempt to obtain evidence.
[88] In addition, as noted, Mr. Hibbert’s statements during the search were entirely unrelated to either Charter violation.
[89] I appreciate that sitting in detention at the police station without the benefit of counsel would take a psychological toll on Mr. Hibbert. But the unconstitutional delay here was relatively brief. During the initial investigative detention Mr. Hibbert did not invoke his right to counsel. He did invoke it once he was arrested, but it was simply not safe or practical for the police to provide it to him at the house (see e.g. Pileggi at paras.76-78). Transportation to the station was delayed, then Mr. Hibbert had to be paraded and searched; he was not placed into an interview room until about 12:15 am. While Det. Stolf was frank that he was not going to provide the right to counsel while investigation about another location was outstanding, the practical reality of the situation was that right to counsel could not be provided much earlier than 12:15 am. In addition, some delay to facilitate the important outstanding investigation was reasonable. The police did not unduly prolong this, cutting it off around the same time Mr. Hibbert's mother called at 1:20 am, and then immediately implementing the right to counsel. When all the circumstances are considered, the unconstitutional delay in implementing the right to counsel was brief.
[90] In all the circumstances, both violations had minimal if any effect on Mr. Hibbert’s Charter protected interests.
Society's interest in the adjudication of the case on its merits
[91] The search revealed marijuana, cash and a loaded handgun with a bullet in the chamber. This was reliable evidence, essential to the Crown's case. It hardly needs saying that possessing a loaded handgun in Toronto is a particularly serious offence giving rise to a heightened interest on the part of the public in a determination on the merits. This inquiry pulls toward inclusion. At the same time, neither of the first two inquiries tend to push toward exclusion. In all the circumstances, I am satisfied that it would bring the administration of justice into disrepute to exclude the evidence obtained during the search in this case.
[92] For all these reasons, I conclude that the evidence obtained during the search is admissible, and Mr. Hibbert's statements during the search are voluntary and admissible.
GILLIAN ROBERTS J.
Released: January 22, 2021
COURT FILE NO.: CR-17-10000704-0000
DATE: 20210122
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JASON HIBBERT
REASONS FOR JUDGMENT
GILLIAN ROBERTS J.
Released: January 22, 2021