COURT FILE NO.: 18-A30423
DATE: 20210122
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
FARAH SAEED QALIB
Applicant
Matthew Humphreys for the Respondent
Dominic Lamb and Jonathan Nadler for the Applicant
HEARD: February 20, 24, 25 and 26, 2020, March 12, 2020, October 2, 2020 and November 9, 2020
CHARTER APPLICATION
REASONS FOR DECISION
H.J. Williams, J.
Overview
[1] Farah Qalib has been charged with firearms-related offences arising from an Ottawa Police Services investigation into a shooting on August 4, 2018.
[2] The shooting took place at Unit 96-1485 Heatherington Road in Ottawa before 10 a.m. that day. Witnesses heard multiple shots and police found seven shell casings behind the home.
[3] Mr. Qalib was arraigned on counts 5, 6 and 7 on the indictment, which relate to his possession of a loaded Glock handgun found in his car.
[4] On a blended voir dire, Mr. Qalib has brought an application under sections 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms. He argues that the police did not have reasonable grounds to arrest him without a warrant and that, consequently, they had no right to search his vehicle incident to the arrest.
[5] Mr. Qalib also argues that the right to counsel and cautions he was provided were deficient.
[6] Mr. Qalib submits that, as a result of the Charter breaches, the handgun and a statement he made to police should be excluded from evidence under s. 24(2) of the Charter.
[7] Ultimately, there was no evidence to connect the handgun found in Mr. Qalib’s car to the shooting. The Crown is not pursuing charges against Mr. Qalib relating to the shooting.
The Investigation
The Civilian Witnesses
[8] Several witnesses gave statements to police.
[9] One of the witnesses said he was in his car, about to leave the parking lot of an apartment building adjacent to 1485 Heatherington when he said he heard “bang, bang, bang, bang” and then saw a person he believed to be male running toward a small silver/grey car. The witness said he believed the person got into the driver’s side of the car. The car passed by the witness’s car. The witness took down a partial plate number—he said he wrote CEFZ but he was not sure about the Z.
[10] The witness said the car was about 10 to 15 feet away from him when it passed by him. He thought the driver was a man but said he could not be absolutely sure because he was concentrating on the licence plate. The witness tried to chase the car but lost sight of it. As he drove back to the apartment building, he saw a similar small car parking off of Heatherington. Its licence plate was CEFV 428.
[11] Another witness was on the 14th floor of the apartment building. He told police he heard five or six gun shots. He described a man with a “dark complexion” running from the back fence of the apartment building toward a silver/grey car with a sunroof. The witness took two photos and a short video of the car and met with police when he saw that they had arrived on the scene.
[12] Another witness told police she saw a Black male, who appeared to be Somali, put a gun into a bag. She said the man had a larger build and was wearing a white shirt and black pants. She saw him run toward what she described as a grey Honda sedan-style vehicle.
Constable David Turnbull
[13] Cst. David Turnbull arrived at the scene at 9:57 a.m. and spoke with the witness who had written down the licence plate and the witness who had taken the photos and the video.
[14] In his duty book notes and his Investigative Action statement, Cst. Turnbull wrote that the witness who saw the licence plate wrote CEFZ but was not certain about the Z.
[15] Cst. Turnbull did not include in his notes or his statement that the same witness had spotted a similar-looking car parking nearby with a licence plate with the same first three letters.
[16] Cst. Turnbull discussed the photos of the car leaving the scene of the shooting with other police officers. He said that, as a result, he believed that the vehicle was a Nissan Maxima, with a model year of 2010 to 2014.
Detective Scott Pearce
[17] Det. Scott Pearce of the OPS Guns and Gangs unit read Cst. David Turnbull’s Investigative Action statement and looked at the two photos of the car. He knew the car was believed to be a 2010 to 2014 Nissan Maxima and that a witness had said that CEFZ were the first four digits of the licence plate.
[18] Det. Pearce did a search in the Ministry of Transportation database, using the letters CEFZ. Although he knew the witness had been unsure about the “Z”, Det. Pearce did not do a search using only the first three letters. Det. Pearce said he did not believe a search using only three letters could be done, but if it was possible and he had known it was possible, he probably would have done both searches.
[19] Det. Pearce did not do a search using the CEFV 428 plate the witness had seen on Heatherington Rd.; he did not recall seeing any reference to that plate number.
[20] Det. Pearce looked for four-door Nissans in Ottawa. Eleven possibilities came up; three were grey; two were Nissan Maximas; one was a Nissan Altima.
[21] One of the vehicles was registered to Mr. Qalib. Its plate number was CEFZ 059. Through a further records search, Det. Pearce learned that Mr. Qalib was a person of interest for the OPS Guns and Gangs unit. Det. Pearce learned that Mr. Qalib had had numerous contacts with police and also convictions for drug possession and trafficking. Det. Pearce learned that Mr. Qalib had been born in Somalia, had a dark complexion and had previously lived in the development at 1485 Heatherington Rd.
[22] Mr. Qalib’s car was a 2009 Nissan Maxima. Cst. David Turnbull’s report had concluded the car police were looking for was a 2010 to 2014 Maxima. Det. Pearce did a Google search and concluded that the suspect car was actually a 2009 Maxima. He said the rear passenger windows were sloped in the same manner as the 2009 model and the rear tail lights were more pointed than in the other model years.
[23] Det. Pearce said that he concluded that the car registered to Mr. Qalib could have been the car involved in the shooting that day.
[24] Det. Pearce said he shared his findings with Sgt. Sammie Brennan.
[25] Det. Pearce said that he did not believe that the information that he provided to Sgt. Brennan was sufficient to make an arrest for discharging a firearm.
Sergeant Sammie Brennan
[26] Sgt. Brennan started his shift at 4 p.m. the day of the shooting. Sgt. Brennan was in charge of the OPS Direct Action Response Team.
[27] Sgt. Brennan said he read the reports of the incident and learned that seven shots had been fired into an occupied residence. Sgt. Brennan said he understood the shooter had been identified as a Black, heavier-set male who was carrying what was described as a man purse. Sgt. Brennan said he saw that a witness had given police the first four letters of a vehicle’s licence plate and that there were photographs of a car leaving the area where the shooting took place. Sgt. Brennan said that he was struck by what he described as “distinctive rims” on the car in the photos. He said they were not the normal rims you would see; they had more style to them. He also noticed the windows of the car were tinted and that the car had a sunroof.
[28] Sgt. Brennan knew that the witness who saw the licence plate had been unsure of the last of the four letters. Like Det. Pearce, Sgt. Brennan was unaware that the same witness had seen a similar-looking car with the licence plate CEFV 428.
[29] Sgt. Brennan said that he and Det. Pearce concluded that the car involved in the shooting was likely a 2009 Nissan Maxima.
[30] Sgt. Brennan knew that Det. Pearce’s MTO search had turned up three grey Nissans. He said that he believed that Det. Pearce had focused on Mr. Qalib’s car because it was from the south end of the city and was registered to a Black male. Sgt. Brennan said he also understood that Mr. Qalib was a person of interest to the Guns and Gangs unit. He said it was also significant that Mr. Qalib had previously lived on Heatherington Rd.
[31] Sgt. Brennan did not ask Det. Pearce about the other two cars that had turned up on his MTO search.
[32] On cross-examination, Sgt. Brennan agreed that he had no description of the face of the person seen getting into the target car following the shooting.
[33] After meeting at the detachment, the DART members went to the scene of the shooting. Sgt. Brennan said he knew the shooting was in the backyard of the unit on Heatherington Rd. He said the backyard was difficult to access. For that reason, and because the shooter was reported to have told a neighbour to go inside, he thought that whoever was responsible for the shooting must have been familiar with the area, although he also believed the unit numbers were posted on the back of the homes. On cross-examination, Sgt. Brennan acknowledged that it might be possible to learn about the layout of the Hetherington development through a search using Google maps.
[34] Sgt. Brennan said that after visiting the scene of the shooting, the DART members spread out to look for the silver/grey 2009 Nissan Maxima with Ontario licence plate CEFZ O59.
[35] Sgt Brennan found the car at 11:42 p.m. The car was 2.4 km away from the scene of the shooting, in the parking lot of a Boston Pizza. It was unoccupied.
[36] Sgt. Brennan said he noticed what he described as the “distinctive” rims on the car in the parking lot. He believed they were the same as the rims on the car that was photographed leaving the scene of the shooting. He said he did not think that he had seen rims like that anywhere before, even after looking at on-line photos of Nissan Maximas. After being shown some Nissan marketing material on cross-examination, however, Sgt. Brennan agreed that the rims he had described as distinctive appeared to be the standard rims on the “sport” model of the Maxima.
[37] On cross-examination, Sgt. Brennan said he did not agree that the car at the Boston Pizza had black door handles while the one photographed leaving the scene of the shooting had silver or chrome door handles. Sgt. Brennan said he thought the lighting accounted for any difference in the appearance of the handles.
[38] After locating the car, Sgt. Brennan notified the DART members. He told them he would be watching the car and they should set up a position nearby and be prepared to receive an order to do a take-down of the car.
[39] At 1:09 a.m., Sgt. Brennan saw two Black men leave the Boston Pizza and walk toward the vehicle. One of the men was heavier-set and the other was tall and thin. Sgt. Brennan made no other observations about their appearance or their clothing.
[40] Sgt. Brennan ordered his team to execute a “high risk take-down” of the car and to arrest the occupants for discharging a firearm.
[41] Sgt. Brennan said he considered both that about 15 hours had passed since the shooting, which he agreed was a considerable period of time, and also that there were two men in the car when there had been only one shooter. He said that, nonetheless, he believed that police had reasonable grounds to stop the car and arrest the occupants for discharging a firearm. He said he believed the vehicle had been involved in the shooting earlier that day and that either the registered owner, Mr. Qalib, or someone else had been driving it.
The Arrest
[42] The Nissan Maxima left the Boston Pizza parking lot and, at 1:11 a.m., police executed what they described as a high-risk take-down at the intersection of Walkley and Conroy Roads.
[43] Cst. Scott Turnbull explained that a high-risk take down is a technique using police vehicles to box in a suspect’s vehicle. Cst. Turnbull said the technique is typically used when police suspect there may be a firearm inside a vehicle or that the occupant may otherwise present a risk to the public. The police cars activate their lights and, in this case, Cst. Turnbull deployed a carbine, or a long rifle.
[44] The police take-down proceeded and the two men inside the car were detained, identified and arrested.
[45] It was Cst. Farah who placed Mr. Qalib under arrest for discharging a firearm.
[46] At 1:15 a.m., Cst. Farah read Mr. Qalib his rights to counsel. Mr. Qalib replied that he understood and that he wished to speak to a lawyer. At 1:16 a.m., Cst. Farah read a caution and secondary caution. At 1:17 a.m., Cst. Farah read a 524 warning.
[47] At 1:17 a.m., Cst. Scott Turnbull began to search Mr. Qalib’s car. He found an iPhone and a driver’s licence and vehicle registration. On the floor behind the front passenger seat, he found a black bag. Inside, he found a handgun with an inserted magazine.
[48] After he learned that Cst. Turnbull had found a handgun in Mr. Qalib’s car, Cst. Farah read Mr. Qalib rights to counsel, cautions and 524 warning for unauthorized possession of a firearm and unauthorized possession of a firearm in a motor vehicle. That was at 1:26 a.m.
[49] Cst. Farah made no notes of Mr. Qalib’s responses, if any.
[50] Four minutes later, at 1:30 a.m., Mr. Qalib said to Cst. Farah: “Everything in the car is mine and my friend has nothing to do with any of this.”
The Issues
[51] The issues are:
Did the police have reasonable grounds to arrest Mr. Qalib?
Was the search of Mr. Qalib’s car lawful?
If the police did not have reasonable grounds to arrest Mr. Qalib, thereby violating his rights under s. 9 of the Charter, or if the search of Mr. Qalib’s car was not lawful, thereby violating his rights under s. 8 of the Charter, should the firearm that was found in Mr. Qalib’s car be excluded from evidence under s. 24(2) of the Charter?
Did the police properly provide Mr. Qalib with his rights to counsel and cautions following the discovery of the firearm in the car?
Issue #1: Did the police have reasonable grounds to arrest Mr. Qalib?
[52] Section 495(1)(a) of the Criminal Code provides that where a peace officer believes on reasonable grounds[^1] that a person has committed an indictable offence, the officer may make a warrantless arrest.
[53] There is both a subjective and objective component to the reasonable grounds inquiry. To fulfill the subjective requirement, the officer must hold an honest belief that the person committed an offence. The officer “must subjectively believe that there are reasonable grounds to make the arrest.” To fulfill the objective requirement, the officer’s belief must be objectively reasonable in the circumstances known to the officer at the time of arrest. The objective inquiry asks whether “a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest.” (R. v. Canary, 2018 ONCA 304, at para. 21 (internal citations omitted.))
[54] Section 21 of the Criminal Code provides that everyone is a party to an offence who: (a) actually commits it; (b) does or omits to do anything for the purpose of aiding any person to commit it; and (c) abets any person in committing it.
Subjective Belief
[55] Mr. Qalib does not take serious issue with the subjective belief of the police officers involved in his arrest. In his written closing submissions, Mr. Qalib’s counsel acknowledged that “the Court may find that each of the officers involved in Mr. Qalib’s arrest were relatively credible in their intention to arrest the Applicant and that they had a subjective belief that they had grounds to do so.”
[56] Mr. Qalib’s issue is with the objective reasonableness of the officers’ subjective belief.
[57] The officers involved in the arrest were Sgt. Brennan, who ordered the arrest, and the DART members, Constables Wendy Marcuccio, Don Duff, Scott Turnbull and Liban Farah.
[58] Each of the officers testified. They all said they received their grounds to arrest from Sgt. Brennan; Cst. Farah said he also had independent grounds.
[59] The law permits an arresting officer to act on another officer's instruction or advice, provided that the instructing officer possesses the requisite grounds of belief: R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, 52 C.C.C. (3d) 193 (S.C.C.) (R. v. Le, 2006 BCCA 463 at para. 25.) Therefore, it is the officer who makes the decision to arrest, in this case, Sgt. Brennan, who must have the reasonable grounds for the arrest.
[60] Sgt. Brennan said that, based on the photographs of the silver/grey car taken at the scene, the partial plate, Det. Pearce’s searches and his and Det. Pearce’s Google searches, he believed that Mr. Qalib’s vehicle had been involved in the shooting and that either Mr. Qalib or someone else had been driving it. Sgt. Brennan said that when he found the car in the Boston Pizza parking lot, he confirmed the licence plate, CEFZ 059, and noticed the distinctive wheel rims. After Sgt. Brennan saw two Black men, including one he described as being “heavier set” get into the car, he instructed the DART team to take down the car and arrest the occupants for discharging a firearm.
[61] Sgt. Brennan said he had reasonable and probable grounds to make the arrest order.
[62] I am satisfied that Sgt. Brennan honestly held this belief and that the subjective requirement of the “reasonable grounds” test is met.
Was the subjective believe objectively reasonable in the circumstances?
[63] When considering whether an officer’s subjective belief is objectively reasonable, the court looks at the objectively discernible facts through the eyes of a reasonable person with the same knowledge, training and experience as the officer. Determining whether sufficient grounds exist to justify an exercise of police powers is not a “scientific or metaphysical exercise”, but one that calls for the application of “[c]ommon sense, flexibility, and practical everyday experience”. (R. v. Canary, at para. 22 (internal citations omitted.))
[64] For the following reasons, Mr. Qalib submits the subjective belief of the officers involved in his arrest was not objectively reasonable:
- Mr. Qalib argues the description of the man at the scene of the shooting was very vague. The man at the scene was described as being Black and “heavier set” and wearing a white shirt and black pants and carrying a satchel. Sgt. Brennan’s only observation of the men who got into the car at the Boston Pizza some 15 hours later was that they were Black; one was heavier set and the other was tall and thin.
- Mr. Qalib argues that three vehicles were identified in Det. Pearce’s MTO search, but the focus was on him from the start and the other two were ignored. Mr. Qalib argues that the focus on him became tunnel vision and the only goal of the police became to locate his vehicle.
- Mr. Qalib argues that Sgt. Brennan placed too much weight on the fact that Mr. Qalib had once lived on Heatherington Rd., particularly when the sergeant admitted on cross-examination that anyone could have become familiar with the area where the shooting took place by using Google maps.
- Mr. Qalib argues that the police relied on an MTO search based on four letters of a partial licence plate when they knew that the witness who had written them down had not been sure about the last of the four letters.
- Mr. Qalib argues that the police also ignored the information that a vehicle similar to the one seen leaving the shooting, with a licence plate with the same first three letters, had been seen parking on Heatherington Rd. shortly after the shooting.
- Mr. Qalib argues that Sgt. Brennan said the rims on the car photographed at the scene of the shooting were “distinctive” and that this was “top of mind” in terms of his belief that he had found the same car in the Boston Pizza parking lot. However, after being shown some Nissan marketing documents while being cross-examined, Sgt. Brennan agreed that the rims appeared to be standard on the Maxima’s sport model.
- Mr. Qalib argues that, although Sgt. Brennan attributed any apparent differences to the lighting, it appeared that the door handles on the car at the scene of the shooting and the one at the Boston Pizza were different colours.
- Mr. Qalib argues that Sgt. Brennan’s grounds are weakened by the insufficient temporal connection between the shooting and the arrest in that the shooting took place before 10 a.m. and the arrest after 1 a.m. the following day.
- Mr. Qalib argues that Det. Pearce said the information he had was not enough to arrest someone for discharging a firearm and Cst. Scott Turnbull said that, when the DART members left for their patrol the night of August 4, 2018, he did not have subjective grounds for an arrest. Mr. Qalib argues the circumstances did not change significantly between the time these officers concluded they did not have grounds for an arrest and the time Sgt. Brennan gave the arrest order.
- Finally, Mr. Qalib also argues that the evidence of Cst. Farah was not reliable. Cst. Farah said, for example, that the man who got into the driver’s seat of the Maxima at the Boston Pizza was carrying a satchel. No other witness gave this evidence. (Crown counsel said he was not asking me to find that the man who got into the car was carrying a satchel and I do not make this finding.)
[65] Mr. Qalib is critical of the police investigation and seeks to cast doubt on several factors Sgt. Brennan relied upon as grounds for arrest.
[66] Whether the police could have done a further or different investigation before making an arrest is not the test to be applied when assessing grounds for an arrest. Further, in R. v. Bush, Ontario’s Court of Appeal said that it is not proper for a trial judge to engage in a dissection of the officer’s grounds looking at each in isolation, opinions that were developed at the scene “without the luxury of judicial reflection.”: para 55. At para. 30 of R. v. Canary, Fairburn J.A. said:
Facts known to an officer at the time of arrest should not be considered within individual silos. The question is not whether each fact, standing alone, supports or undermines the grounds for an arrest. The question is whether the facts as a whole, seen through the eyes of a reasonable person who has the same knowledge, training and experience as the arresting officer, make the arrest objectively reasonable.
[67] Mr. Qalib argues that two OPS officers clearly stated that they did not have reasonable grounds to arrest the owner of the Nissan Maxima for the discharge of a firearm. However, the two officers, Det. Pearce and Cst. Scott Turnbull, expressed these opinions before Mr. Qalib’s car was found in the Boston Pizza parking lot, before Sgt. Brennan concluded that its rims matched those of the car in the photos taken at the scene of the shooting and before two Black men, one described as heavier set, were seen getting into the car.
[68] At the time of the arrest, Sgt. Brennan had been a member of the OPS for more than 19 years. He had been a sergeant since 2014. The information available to Sgt. Brennan at 1:09 a.m., the time he gave the order to the DART members to stop Mr. Qalib’s car and arrest the occupants for discharge of a firearm, included the following:
- A description from witnesses of the shooter as being a Black heavier-set male.
- Two photographs of a silver/grey car taken by the witness who saw the car leave the scene of the shooting. The photographs showed that the car had a sunroof, tinted windows and what Sgt. Brennan described as “distinctive” rims.
- A partial licence plate: A witness had given police the letters CEFZ, although the witness had not been entirely sure about the “Z.”
- A Ministry of Transportation search of the partial licence plate that turned up three cars matching the description of the car at the scene of the shooting. One of the three had the plate CEFZ 059 and was registered to a person who had had previous contact with the OPS Guns and Gangs unit. The registered owner of the car lived in the south end of the city and had at one time lived on Heatherington Rd. The car was registered to Mr. Qalib. Mr. Qalib’s car was a 2009 Nissan Maxima.
- An internet search conducted by Sgt. Brennan and Det. Pearce led them to conclude that the car seen leaving the scene of the shooting was a 2009 Nissan Maxima.
- The Boston Pizza where Sgt. Brennan spotted Mr. Qalib’s car was 2.4 km away from the scene of the shooting, 1485 Heatherington Rd.
- The rims on the Nissan Maxima in the Boston Pizza parking lot appeared to Sgt. Brennan to be the same as the rims on the car in the photographs taken by the witness at the scene of the shooting.
- The two men who got into the Nissan Maxima in the Boston Pizza parking lot at 1:09 a.m. on August 5, 2018 were Black. Sgt. Brennan described one as being heavier set, the other as being tall and skinny.
[69] The reasonable grounds standard does not require the establishment of a prima facie case or proof beyond a reasonable doubt. The test is met where, based on all of the circumstances known to the officer, “credibly-based probability” replaces suspicion: R. v. Canary, at para. 23.
[70] Having considered all of the information available to Sgt. Brennan, I am satisfied that a reasonable person, standing in Sgt. Brennan’s shoes, would have believed, based on the facts as a whole, that reasonable and probable grounds existed to arrest Mr. Qalib.
Conclusion with respect to Issue #1
[71] I find that the police had reasonable grounds to arrest Mr. Qalib. As such, I find that the arrest was lawful. It follows that his detention was also lawful and not in violation of s. 9 of the Charter.
Issue #2: Was the search of Mr. Qalib’s car lawful?
[72] Mr. Qalib had argued that his arrest was unlawful, and, as a consequence, the search of his car, which was without a warrant, could not be justified on the basis that it was incident to arrest. Mr. Qalib argued that the search was unlawful and that his rights under s. 8 of the Charter were breached.
[73] I have found that the arrest was lawful. However, it does not necessarily follow that the search was lawful.
[74] A warrantless search is prima facie unreasonable. The Crown bears the burden of demonstrating, on a balance of probabilities, that a search was reasonable.
[75] To justify a search made incident to an arrest, the Crown must show not only that the arrest was lawful but also that certain limits on the power to search incident to arrest were respected. These limits were set out by the Supreme Court of Canada in Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158 at p. 186:
The power to search incident to arrest does not impose a duty to search;
The search must be for a valid objective in pursuit of the end of criminal justice, such as the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused. The purpose of the search must not be unrelated to the objectives of the proper administration of justice, which would be the case if the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions;
The search must not be conducted in an abusive fashion and in particular, the use of physical or psychological constraints should be proportionate to the objectives sought and the other circumstances of the situation.
[76] The most important of these limits is that the search must be truly incidental to the arrest. This means that the police must be able to explain, within the purpose articulated in Cloutier (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose why they searched. They do not need reasonable and probable grounds. However, they must have had some reason related to the arrest for conducting the search at the time it was carried out and that reason must be objectively reasonable. (R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51, at para. 25.)
[77] The officer who searched Mr. Qalib’s car, Cst. Scott Turnbull, was able to explain why he conducted the search. Cst. Turnbull said his objective was to locate evidence or weapons. He said there was obviously no need to search for a means of escape because Mr. Qalib and his passenger were already out of the car at the time he searched. He said he searched the area of the car that could have been accessed by the driver and passenger at the time of their arrest. Cst. Turnbull said he could not recall whether he searched the trunk but agreed that he might have. On cross-examination, Cst. Turnbull agreed that it would have been open to him not to open the satchel where he found the handgun or a gym bag, which he also opened, and instead to leave them where they were and obtain a warrant. He said that he did not do this because, in his opinion, a warrant was unnecessary and he was entitled to do a warrantless search, incident to arrest, of the area in and around the occupants of the vehicle.
[78] Having found already that the arrest was lawful, I also find that the search was incident to arrest, that the search was reasonable and within the limits on searches incident to arrest and that, consequently, the search was also lawful.
Conclusion with respect to Issue #2
[79] As I have found that the police had the right to search Mr. Qalib’s car incident to arrest and that the search was reasonable, I find that there was no breach of Mr. Qalib’s rights under s. 8 of the Charter.
Issue #3: If the police did not have reasonable grounds to arrest Mr. Qalib, thereby violating his rights under [s. 9](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html), or if the search of Mr. Qalib’s car was not lawful, thereby violating his rights under [s. 8](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the Charter, should the firearm that was found in Mr. Qalib’s car be excluded from evidence under [s. 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the Charter?
[80] As I have found that Mr. Qalib’s Charter rights were not violated, I will only state briefly that, if, on the same facts, I had concluded that there were not reasonable grounds to arrest Mr. Qalib, applying the factors in R. v. Grant 2009 SCC 32, [2009] 2 S.C.R. 353, I would not have excluded the handgun from evidence under s. 24(2).
[81] The seriousness of the Charter-infringing state conduct would weigh in favour of inclusion of the evidence. The officers in this case had an honest belief that they had grounds to arrest; there was no evidence of willful or reckless disregard for an individual’s Charter rights. Although the expectation of privacy in a car or on a public highway is lower than in a home, the impact of the breach on Charter-protected interests in this case would have weighed in favour of exclusion. Mr. Qalib’s s. 8 and s. 9 protections against unreasonable search and arbitrary detention were at issue. Mr. Qalib was subjected to an early morning “high risk take-down,” a traffic stop involving multiple police cruisers with their lights flashing, multiple police officers and a carbine and a subsequent search of his car. Society’s interest in the adjudication of the case on its merits would weigh in favour of inclusion. A loaded handgun is very reliable evidence and, in this case, evidence key to the Crown’s case. A balancing of the three Grant factors would have led me to conclude that admitting the handgun into evidence would not bring the administration of justice into disrepute.
Issue #4: Did the police properly provide Mr. Qalib with his rights to counsel and cautions following the discovery of the firearm in the car?
[82] Section 10(b) of the Charter provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.
[83] Mr. Qalib seeks the exclusion of a statement he made to Cst. Farah after the handgun was found in his car. Cst. Farah testified that, while sitting in the back seat of Cst. Farah’s police car, Mr. Qalid said: “Everything in the car is mine. My friend had nothing to do with any of this.”
[84] Mr. Qalib argues that Cst. Farah failed to comply with the informational component of s. 10(b) of the Charter.
[85] Mr. Qalib argues that Cst. Farah’s evidence with respect to his interaction with Mr. Qalib when informing Mr. Qalib of his rights to counsel and cautions was unclear and contradictory. He says that Cst. Farah’s evidence was unreliable in other respects as well, for example, when he testified that he was told that one of the men who got into the Nissan Maxima outside the Boston Pizza was carrying a satchel, when no other witness said this. Mr. Qalib argues that, as such, there is no evidentiary record that Mr. Qalib’s s. 10(b) rights were not violated.
[86] I agree with Mr. Qalib that Cst. Farah’s evidence with respect to Mr. Qalib’s responses to his rights to counsel and cautions was contradictory and at times difficult to follow.
[87] For example, in his examination-in-chief, Cst. Farah said that he had made a note of Mr. Qalib’s responses to the cautions he had read to him. On cross-examination, he agreed that, at his preliminary inquiry, he had said that he had not done so. Cst. Farah said that he had not read his notes properly at the preliminary inquiry.
[88] Cst. Farah also agreed that at the preliminary inquiry, he had said that he did not recall if Mr. Qalib had acknowledged understanding the cautions Cst. Farah read to him after the handgun was discovered in his car. Cst. Farah had no notes of whether Mr. Qalib had responded. He said that if Mr. Qalib had not understood, he would have read the cautions again. At trial, Cst. Farah said that Mr. Qalib had said that he understood the cautions.
[89] Mr. Qalib’s counsel was given wide latitude to cross-examine Cst. Farah because of some since-withdrawn Special Investigations Unit charges that were against him at the time. Although Cst. Farah testified that he makes sure always to make notes of responses to rights to counsel and cautions, he agreed that his notes and Investigative Action statement in the case in which the charges against him arose contained no such notes.
[90] Mr. Qalib does not argue that the rights to counsel and cautions were not read to him after the handgun was found. (Mr. Qalib’s written closing submissions, para. 35.) Rights to counsel and cautions were read to Mr. Qalib twice. The first time was in respect of the discharge of a firearm charge. Mr. Qalib said that he understood his rights to counsel and that he wished to speak to a lawyer. Cst. Farah read the same rights to counsel and cautions to Mr. Qalib in respect of the possession of an unauthorized weapon charges.
[91] Although Cst. Farah’s evidence with respect to Mr. Qalib’s responses to the second round of rights and cautions was unclear, his evidence that he read these rights and cautions to Mr. Qalib was clear and is not in dispute.
[92] Section 10(b) of the Charter imposes the following duties on state authorities who arrest or detain a person:
To inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;
If a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right; and
To refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity. (R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173.)
[93] Absent special circumstances indicating that a detainee may not understand the s. 10(b) caution, such as language difficulties or a known or obvious mental disability, police are not required to assure themselves that a detainee fully understands the s. 10(b) caution. (R. v. Bartle, at para. 19.)
[94] In this case, the first time Cst. Farah read Mr. Qalib his rights to counsel, Mr. Qalib said he understood and that he wished to retain a lawyer. Cst. Farah read him his rights to counsel and cautions a second time. There was no evidence to suggest that, in the circumstances, the law required Cst. Farah to take steps to assure himself that Mr. Qalib understood what he was told the second time.
[95] Mr. Qalib bears the onus of establishing, on a balance of probabilities, that his s. 10(b) rights were violated. I find that he has failed to meet this onus. I find that he was read his rights to counsel on two occasions, both before and after the handgun was found; there was evidence that he understood and requested counsel the first time and no evidence that he did not understand the second time.
Conclusion with respect to Issue #4
[96] I find no violation of Mr. Qalib’s s rights under s. 10(b) of the Charter.
Conclusion
[97] For the agove reasons, Mr. Qalib’s application is dismissed.
Date: January 22, 2021
COURT FILE NO.: 18-A30423
DATE: 20210122
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: HER MAJESTY THE QUEEN
Respondent
– and –
FARAH SAEED QALIB
Applicant
BEFORE: Madam Justice H.J. Williams
COUNSEL: Matthew Humphreys for the Crown
Dominic Lamb for the Applicant
DECISION with respect to charter application
Madam Justice H. J. Williams
Released: January 22, 2021
[^1]: Section 495(1) of the Criminal Code refers to “reasonable grounds”; its predecessor, s. 450(1)(a) referred to “reasonable and probable grounds”. As Fairburn J.A. wrote in a footnote in R. v. Canary, in Baron v. R., 1993 CanLII 154 (SCC), [1993] 1 S.C.R. 416 (S.C.C.), at para. 446, the Supreme Court of Canada noted that the word “probable” added nothing additional to the requirement of reasonableness.