COURT FILE NO.: CR-0200-2020
DATE: 20211020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Plaintiff/Respondent
– and –
SALAH EL DIN M. KHAN
Defendant/Applicant
Christine Jenkins and David Spence, for the Plaintiff/Respondent
Tobias Okada-Phillips, for the Defendant/Applicant
HEARD: October 12-15, 18, 2021
P. CAMBPELL J.
RULING ON ADMISSIBILITY
A. BACKGROUND
[1] The defendant, Salah El Din M. Khan, is charged on a 27-count indictment with a series of offences alleged to have been committed between October 13th and 22nd, 2019 in Toronto. Common to all the occurrences are charges of robbery, committed with a knife. One of the incidents includes an allegation of sexual assault. There are other charges of weapons dangerous and being disguised with intent to commit an indictable offence. Almost all of the charges arise from incidents where a man entered a massage parlour or salon, brandished a knife, demanded money, and then fled. Some victims resisted. Images of the robber were captured in some of the incidents. The frequency and similarity of the crimes led Toronto Police Service Holdup Squad investigators to refer to the person they believed to be committing them as the "massage bandit." Mr. Khan was apprehended on October 22, 2019, allegedly in the aftermath of the last of these robberies, while struggling with a victim and two passersby as he tried to flee the scene.
[2] Mr. Khan, an American citizen and resident, reportedly crossed the border into Canada on foot at Niagara Falls on October 7, 2019. On October 22, he was staying at a rented room in Toronto and using a rented pickup truck. Evidence said to be crucial to the Crown case was discovered in warrantless searches of both the truck and the room that day. Warrants were later obtained for both locations and items previously observed were seized. In the truck, items not noticed in the initial searches were also seized.
[3] Counsel for Mr. Khan argues that these searches were unreasonable by the standards of s. 8 of the Canadian Charter of Rights and Freedoms, and that the information linking him to the rented room was acquired through a denial of his right to counsel under s. 10(b) of the Charter. These constitutional failings cannot be cured by the warrants later obtained for both searched locations. Admitting the contested evidence would bring the administration of justice into disrepute. Its exclusion under s. 24(2) of the Charter is the appropriate remedy for the violation of his rights.
[4] The Crown argues that the initial search of the truck was reasonable as an incident to the arrest of Mr. Khan, who was in the vehicle when he was apprehended. The Crown accepts that the delay between Mr. Khan's arrest and his first access to counsel was unreasonably protracted and that the lead investigator violated the duty to "hold off" questioning him by asking him for his Toronto address. The Crown also submits that an officer’s entry into Mr. Khan’s rental room before receiving a warrant was justified by the need to preserve evidence, and to prevent potential harm to unknown victims who might be in the room or to police officers who might enter it. The parties disagree on the appropriate remedy under s.24(2) in so far as evidence in the room and the truck was obtained in a manner that violated Mr. Khan’s rights.
B. THE ESSENTIAL FACTS AND EVIDENCE
[5] Six police officers testified on this application, each called by the Crown and cross-examined by the defendant. Notes, transcripts, warrants, and photographs also form parts of the record, along with videotape from an in-car camera of interactions between Mr. Khan and police officers at the scene of his arrest. I will summarize only the evidence that directly bears on the questions at issue, as I understand them.
[6] At 12:16 p.m., in response to a radio call about a robbery with a knife at the "Crystal B Palace” spa on Danforth Avenue near Westlake Avenue, Constable Celestine and Constable Spade, working at the time as school resource officers, arrived to observe Mr. Khan in the driver's seat of a silver Dodge Ram pickup truck, apparently trying to drive away but impeded by an engaged emergency break. The officers parked in a position that blocked the path of the truck. Though the evidence suggests that this occurred in the immediate aftermath of a robbery and a physical struggle with civilians, Mr. Khan was arrested without difficulty at 12:17 p.m. After a pat-down search of his person, he was placed in the rear of Constable Mitchener's police cruiser. He remained there, handcuffed, for more than an hour before his eventual transport by Constable Mitchener to 55 Division, where he arrived at 1:37 p.m.
[7] Constable Celestine, upon arresting Mr. Khan, advised him of his right to retain and instruct counsel without delay and cautioned him that he did not need to say anything but that what he did say would be taken down and could be given in evidence. Constable Celestine repeated the right to counsel and caution on camera after Mr. Khan was placed in the rear of Constable Mitchener's cruiser. Mr. Khan was originally told he was under arrest for the offence of threatening. The officers soon clarified that the backdrop to the altercation they had broken up was an attempted robbery of the massage parlour. Shortly afterward, in the rear of the cruiser, he was told he was under arrest for robbery. During the on-scene investigation that followed, he was told by Constable Spade that he "may be wanted for a number of recent holdups." It is agreed that Mr. Khan expressed a desire to speak to counsel and was assured he would have the opportunity to do so.
[8] The on-scene investigation included questioning of Mr. Khan about his identity and entry into Canada and searches of the Ram truck. Mr. Khan was in possession of identification that listed addresses for him in Wisconsin, Connecticut, and Maine and was asked several times about them. He was also asked about the date and place of his entry into Canada, which was apparently cross-checked by reference to police or Canada Border Services Agency data bases. One officer, Constable Spade, quite aggressively suggested to Mr. Khan that he had come to Canada to "rob people" though the officer did not pursue that inquiry and another officer appeared to intervene, saying that he was not being questioned about his charges. Mr. Khan made no reply.
[9] Constable Celestine performed a search inside the pickup truck. He found a silver knife on the front console and two cell phones on the passenger seat.
[10] Sgt. Contant, a Holdup Squad officer, had no prior role in the massage bandit investigation but became a key figure in the events of October 22 after acquainting himself with the radio traffic on the arrest and the Holdup Squad’s bulletin on the massage bandit—a case that he said had created "quite a stir" within the Holdup Squad. Sgt. Contant appears to have communicated with Constable Spade about the possible links between the robbery that day and the earlier massage parlour robberies, despite Constable Spade's failure to recall this. Sgt. Contant asked that the scene be held intact and said that he would attend. He arrived at Danforth and Westlake at 1:30 p.m.
[11] The scene was no longer active by this point, but the Ram truck was still present with its front door open and one officer was visible nearby. Sgt. Contant conducted what he called a "cursory" search of the truck, attempting to be "unobtrusive." He insisted that he was looking only for evidence related to the Crystal Palace robbery, which had occurred that day.
[12] In the truck, Sgt. Contant noticed the silver knife and the pair of cell phones seen by Constable Celestine, but also observed a brown paper bag into which, he said, he peered without touching it. He was able to observe inside the bag a baseball cap with an "artistic" logo that he recognized from photos in the Holdup Squad bulletin on the massage bandit investigation. He seized the knife and phones but left the hat and bag in place.
[13] Meanwhile, Mr. Khan was at 55 Division. Upon arrival at 1:37 p.m., he was asked again if he wanted to talk to a lawyer and said that he did, describing it as a "good idea." In response to Constable Mitchener's suggestion that he probably did not know a lawyer, he said his lawyer was in Italy and could be reached over Skype. Constable Mitchener told him he could not call Italy and suggested an Italian lawyer would not be licensed to practice law in Canada. He made no effort to identify the lawyer in Italy, establish his or her status, or facilitate contact, which he testified would not be possible from 55 Division.
[14] The booking procedure at the Division included a question as to whether Mr. Khan understood his right to counsel, which he affirmed he did, and assurances that he could call his own lawyer or free duty counsel. A strip search followed and by 2:06 p.m. Mr. Khan was lodged in room 4 of the Major Crime Unit. It had by this point been an hour and 49 minutes since his arrest.
[15] Constable Mitchener, the officer who had held and escorted Mr. Khan thus far, and had heard his requests for counsel, then left him in room 4 and spoke to Det. Cst. Magee, a Holdup Squad officer, who had come to 55 Division. Det. Cst. Magee was, along with Det. Beausoleil, assigned to the massage bandit case at the Holdup Squad. Constable Mitchener briefed Det. Cst. Magee from 2:08 to 2:19 p.m. on his contact with Mr. Khan. By the end of this briefing, over two hours had passed since the arrest. Although Mr. Khan could have called a lawyer from the interview room or elsewhere, no opportunity to do so was offered to him.
[16] Another sixteen minutes passed before a call was made to duty counsel, at 2:35 p.m., and it was not until 2:44 p.m. that Mr. Khan spoke to a lawyer. This was just a few minutes short of two and a half hours after his arrest. Constable Mitchener said that he could not explain this further delay in providing access to counsel beyond speculative possibilities. He resisted suggestions by Mr. Khan's counsel that he had made his briefing of Det. Cst. Magee, and whatever activities followed it, a higher priority than Mr. Khan's right to consult counsel.
[17] Det. Beausoleil was the Holdup Squad officer in charge of the massage bandit investigation and the third officer from the squad to drive to 55 Division that day. He entered the interview room where Mr. Khan was lodged at 2:28 p.m. In testimony challenged by counsel for Mr. Khan, Det. Beausoleil said that he asked Mr. Khan for his address, but did so only for the purpose of preparing court documentation, including the "show cause" information upon which the decision as to bail for Mr. Khan would be made in court the next day. Det. Beausoleil denied having an intention to learn the address at which Mr. Khan had been staying with a view to obtaining a search warrant and looking for the distinctive items of clothing that the massage bandit was thought likely to possess. Mr. Khan, who had not by that point spoken to counsel, replied with a reference to "Kensington House," a guest house in Toronto's Kensington Market.
[18] Det. Beausoleil followed up on this information. He performed an online search of the address and printed a photograph of it, which he showed to Mr. Khan who made no response. Det. Beausoleil then phoned Luke Lu, the named owner of Kensington House, which was located at 112 Oxford Street. Mr. Lu told him that Mr. Khan had stayed there on the night of October 12-13, 2019, then checked out. On October 14, he had rented a room in another building owned by Mr. Lu, 287 Parliament Street, unit 203.
[19] Det. Beausoleil then detailed Sgt. Contant to go to 287 Parliament St. and meet with Mr. Lu. Sgt. Contant understood this to be an "address of interest" and attended expecting that, if it was confirmed to be the address of Mr. Khan, a search warrant would be obtained. 287 Parliament St. was an ordinary two-storey house. Upon confirming that unit 203 was rented to Mr. Khan, Sgt. Contant was given a key by Mr. Lu and entered the unit after no one responded to a knock and a call.
[20] Sgt. Contant had no warrant for this entry. He testified that he believed a search would be conducted at the unit once a warrant was obtained, and he wanted to make sure in advance that no one was in the unit, including possible other victims of the massage bandit or an ally of the bandit who could destroy evidence. Sgt. Contant also wanted to ensure that there was no weapon in the room which, if there was an occupant, might pose a danger to officers later executing a warrant. In support of this reasoning, he made reference to s. 529.3 of the Criminal Code, which allows a dwelling-house to be entered by a police officer for the purpose of making an arrest where "exigent circumstances" exist making an application for an arrest warrant "impracticable." In these proceedings, the Crown cites s. 487.11 as the actual justification for a warrantless entry, since it applies to searches, not arrests, and adopts an identical test.
[21] Sgt. Contant accepted that he had no information that anyone was in the unit and it is clear that there was no evidence of the massage bandit working with an accomplice, travelling with a companion, or abducting victims from the sites of his robberies. A knife had been found in the Ram truck and there was no information pointing to other weapons likely to be in any room Mr. Khan was occupying.
[22] Inside unit 203, Sgt. Contant immediately noticed a distinctive jacket hanging on the foot of the unit's bed. It was black and had patches on it, which were identical to those seen in images captured by surveillance video cameras at some of the massage bandit crime scenes. Sgt. Contant recognized it immediately and considered it the "most distinctive" jacket he had ever encountered in his time investigating retail robberies. It created, in his view, a "very strong inference" that Mr. Khan was the massage bandit.
[23] Warrants were eventually obtained to search both unit 203 (on the evening of October 22) and the Ram truck (on October 26). Though Sgt. Contant had seized the knife and phones from the truck during his warrantless search on the afternoon of October 22, 2019, the Holdup Squad investigators believed other evidence could be in the vehicle. When the warrant for the truck was executed, further items of significant evidentiary value were found. Under the warrant they obtained for unit 203 at 287 Parliament St., they seized only the leather jacket. Both affidavits in support of the search warrants referred to Sgt. Contant’s observations during the original warrantless searches of the two locations.
C. ISSUES ON THE APPLICATION
[24] The Crown wishes to adduce evidence at Mr. Khan's trial of items seized in both the Ram truck and the Parliament St. unit. The defence applies to exclude the evidence from both locations, claiming that it was acquired as a result of warrantless searches, which were not rendered reasonable by any lawful authority, and that the search of the apartment was based on information acquired as a result of Det. Beausoleil’s questioning of Mr. Khan at a time when he was being denied his right to the advice of counsel.
[25] The following questions arise for determination:
(i) Was the search of the Ram truck rented by Mr. Khan reasonable within the meaning of s. 8 of the Charter because it was a search incident to his arrest? Did it go beyond a search for evidence related to the offence for which the arrest had been made?
(ii) Was Mr. Khan denied his right under s. 10(b) of the Charter to retain and instruct counsel without delay by the time that passed between his requests for counsel and the opportunity given to him to consult counsel? Did the questioning of him by Det. Beausoleil about his address constitute a violation of the police duty to "hold off" attempting to elicit evidence from him until he had consulted counsel? Was the questioning without advising him of the investigation into the many earlier massage bandit robberies a violation of s. 10(a)?
(iii) Was the entry of Mr. Khan’s rented room prior to the issuance of a search warrant a violation of s. 8 of the Charter?
(iv) Was the evidence ultimately seized during the execution of search warrants unconstitutionally obtained because of the violation of Mr. Khan's rights which preceded the issuance of the warrants?
(v) Should evidence seized in the searches of the truck and rented unit be excluded because its admission would tend to bring the administration of justice into disrepute, under s. 24 (2) of the Charter?
[26] Assessing these claims is made easier by concessions on the part of the Crown that Mr. Khan's rights were indeed violated by aspects of the behaviour described above. These concessions mean that the focus of these reasons will be primarily on the criteria for excluding or admitting evidence under s. 24(2) of the Charter.
[27] It is agreed that s. 10(b) was violated by Constable Mitchener through his failure to connect Mr. Khan with counsel earlier than he did and his failure to call duty counsel at 55 Division directly after the booking, choosing to perform other tasks instead.
[28] Significantly, it is agreed that Det. Beausoleil violated his duty under s. 10(b) to "hold off" questioning of Mr. Khan when he asked him for his address. It is also agreed that s. 10(a) of the Charter, the right to be informed of the reason for his arrest, was violated by Det. Beausoleil when he questioned Mr. Khan about the address without telling him that was a suspect in the other massage bandit robberies.
[29] Finally, it is agreed that the search of unit 203 at 287 Parliament St. was a violation of the protection against unreasonable search and seizure in s. 8 of the Charter because it relied upon Mr. Khan's conscripted admission that he was staying at the address.
[30] The Crown does not, however, concede all the constitutional claims of Mr. Khan. In particular, it takes the position that the search of the Ram truck, which followed the arrest, was properly an incident of the arrest and constitutionally unimpeachable. It also disputes the suggestion that the warrantless entry of unit 203 by Sgt. Contant, ostensibly in exigent circumstances, was in itself a violation of s. 8. It submits most vigorously that any remedy excluding evidence should not extend to the seizures made under the warrant for the truck executed on October 26.
[31] I will first make findings on the disputed claims of rights violations and then elaborate upon, and characterize, the violations I find to have been established by evidence and, in some instances, the Crown's acknowledgement.
D. THE SEARCH OF THE TRUCK AFTER ARREST
[32] When Constables Celestine and Spade approached the Ram truck they found, as I understand the evidence, a rather chaotic scene involving a struggle with civilians, which included the use of force and an attempt by Mr. Khan to speed away from the scene. He might have succeeded but for his depressed foot brake and the blockage of his path by the officers’ van. Constables Celestine and Spade did not have detailed information about the offences that had just taken place and initially arrested Mr. Khan for uttering threats. This was corrected 22 minutes later when Mr. Khan was arrested again, while cuffed in the rear seat of Constable Mitchener's cruiser, for robbery, and was again read his rights.
[33] By that point, a good deal of searching had taken place in the truck by both officers. In my view, however, the fact that the initial arrest was for threatening does not invalidate a search performed pursuant to that arrest. The announcement of the charge does not need to be comprehensive to satisfy s. 10(a) and it is not suggested that the officers had no grounds to believe Mr. Khan had made threats. If threatening was the only charge contemplated, the context of the arrest made clear that there was every reason to examine the truck's interior where Mr. Khan had been stationed to see if it contained items relevant to proving that charge and assessing the background, context, and gravity of his threatening behaviour. I do not regard this as giving rise to a violation of s. 10(a) or s. 8, nor do I regard it as supporting the exclusion of the knife and cell phones found and seized during this search.
[34] Counsel for Mr. Khan also argues that his client's rights under s. 8 were violated by Sgt. Contant's search of the truck when he arrived at 1:30 p.m. and shortly afterward looked through the truck again. The essence of this argument is that Sgt. Contant was focused on the possible connections between the arrested man, Mr. Khan, and the massage bandit robberies. This is illustrated by his interest in the hat with the distinctive logo in the open paper bag, which he recognized from surveillance video images of the massage bandit's offences. Because a search incident to arrest must be related to the crime for which the arrest was made, rather than in pursuance of evidence for separate matters, Sgt. Contant's focus on the wider investigation, of which he was very conscious as a Holdup Squad officer, invalidated the search he conducted in the truck, over an hour after the officers who had made the arrest had covered the same ground.
[35] This argument presupposes a duty on officers searching incident to arrest to compartmentalize their awareness of what may constitute evidence, which the law does not impose. An officer searching incident to an arrest may—and often will—have dual purposes, one shaped by the charge for which the arrest was made and another shaped by an awareness that the site being searched may yield evidence of unrelated offences. When this happens, there is no duty on an officer’s part to disregard what is found if the search itself is justified by, and is performed pursuant to, the arrest: R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at paras. 35-41; R. v. Pearson, 2011 ONSC 1913, at paras. 30-35, aff’d 2017 ONCA 389, 348 C.C.C. (3d) 277.
[36] The Holdup Squad is required to investigate and assume carriage of every "retail robbery" committed in Toronto. Sgt. Contant, no doubt energized by the possibility that Mr. Khan was the massage bandit, headed quickly to the scene and was the first Holdup Squad officer to respond to the announced arrest. Seeing the truck, which he knew from radio traffic to be the site of much of the activity in the arrest, it was permissible, and natural, for him to look inside it. In doing so, he did not have to disabuse himself of an awareness that it might yield evidence connecting Mr. Khan to other robberies; it was sufficient constitutionally that he was effectively in charge, for the moment at least, of investigating the robbery that had occurred and was entitled to perform a search incident to Mr. Khan's arrest even if other officers, who would have no ongoing role in the case, had already done the same. His recognition of the possible significance of the baseball cap as a link to the massage bandit robberies does not undermine the lawfulness of his search.
E. THE WARRANTLESS ENTRY INTO THE UNIT AT 287 PARLIAMENT ST.
[37] Sgt. Contant went to 287 Parliament St., at the direction of Det. Beausoleil, and met Mr. Lu, confirmed Mr. Khan had been staying in unit 203, obtained the room key, and promptly walked into the unit to look around. What he saw was the most striking piece of physical evidence in the case—the leather jacket, which he believed to be the jacket visible in some of the massage bandit surveillance videos.
[38] This was a warrantless search and already unreasonable because of the violations of s. 10 of the Charter which provided the address where Mr. Khan was staying. Counsel for Mr. Khan submits that, apart from this defect, the officer’s entry into the unit was a violation of s. 8 because a warrant had not been issued. The officer and the Crown seek to justify this entry under s. 487.11 as having been compelled by exigent circumstances—the need to protect possible victims and especially the need to prevent the possible destruction of evidence after Mr. Khan's arrest.
[39] I do not accept this justification for the warrantless entry. There is no dispute about the constitutionality of provisions that permit entry into private zones, including dwelling-houses, without a warrant when important societal interests, such as public or officer safety and evidence preservation, will be sacrificed by the delay needed to secure a warrant. But the warrant requirement is a bedrock constitutional principle and a key bulwark between state power and individual privacy. The judgment about warrantless entry is left to police officers, with no judicial input, and as such must be subject to carefully maintained boundaries. This means, at a minimum, that there must be a considered determination, resting on case-specific information, that triggers the extraordinary entitlement to enter a residence without judicial authorization: R. v. Kelsy, 2011 ONCA 605, 280 C.C.C. (3d) 456, at paras. 24-38, 58.
[40] Sgt. Contant did not refer to any information beyond the observation that this was a "dynamic" situation, given the recent arrest. He had only a "generalized" concern about harm to others or evidence destruction. He had no indication from Mr. Lu that Mr. Khan had a companion in unit 203 and he did not make inquiries around the building. His knock and call at the unit's door produced no response. Sgt. Contant had a good deal of information about the massage bandit but everything in the record before me would belie the suggestion that he had an accomplice or even a friend. Generalized concerns about safety or preservation of evidence, based on possibilities that could arise in a great many cases where an arrest precedes a search, cannot be allowed to displace the warrant requirement. There must be meaningful reasons articulated and considered by an officer before invoking s. 487.11.
[41] I see no sign of such a process in this case. Indeed, I take from the officer's evidence a belief that such an entry in advance of a search is a "best practice” and also a common practice, which his evidence and conduct imply. This, in my view, gives rise to concerns that the boundaries of s. 487.11 are not well understood and should be emphasized.
F. THE BREACH OF THE RIGHT TO COUNSEL
[42] It is not disputed that the officers dealing with Mr. Khan at the arrest scene and at 55 Division violated his right to retain and instruct counsel without delay in two aspects of its "implementational" component. There was no reasonable opportunity provided to retain and instruct counsel and police did not avoid questioning Mr. Khan until he had a reasonable opportunity to contact a lawyer: R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, 41 D.L.R. (4th) 301. Constable Mitchener bears primary responsibility for the delay of two hours and 27 minutes between the communication to Mr. Khan that he could speak to counsel and the phone call to duty counsel when he finally did. While there are cases with considerably longer delays, this one is unacceptable and is aggravated, in my view, by the vulnerability of Mr. Khan, an American with no visible supporters in Canada, no reason to be familiar with Canadian law, and facing great legal peril. I accept that Constable Mitchener and his colleagues were troubled by the contradictory identification they found on Mr. Khan's person but there was no reason to infer fraud from this and the basic features of his identity— his name and date of birth—were reasonably apparent. More importantly, the administrative imperative to establish the identity of a person under arrest does not exist on the same plane as the right to counsel and cannot be permitted to cause protracted delays. If Mr. Khan appeared to be an unidentifiable John Doe to the officers, he would still have a right to speak to counsel without unreasonable delay.
[43] Beyond that, when uncontrollable events do delay the implementation of the right to counsel for an unusually long time, this elevates the importance of ensuring counsel is contacted when the unavoidable period of delay has ended. In this case, the time Constable Mitchener devoted to briefing Det. Cst. Magee and then performing some unrecalled task before getting Mr. Khan to a phone is of much greater significance because of the two hours that preceded it.
[44] While I do not ascribe bad faith to Constable Mitchener in the sense that he was consciously subverting constitutional rights, a great deal of time went by when, if Constable Mitchener were more than indifferent to his obligation to Mr. Khan, he would have gotten Mr. Khan to a telephone. This is, taken in total, a serious violation of rights.
[45] The greater offence, however, is Det. Beausoleil’s. It was clear that he entered room 204 at 55 Division, at a time when Mr. Khan had not spoken to counsel and had not been told of the very serious massage bandit investigation. Detective Beausoleil asked him a question that seemed simple but was, for Mr. Khan, of great legal consequence: what was his address in Toronto? Mr. Khan did not answer truthfully, but he gave up very damaging information pointing the police to 112 Oxford St. and Luke Lu, who quickly told the police that Mr. Khan was actually staying at 287 Parliament St. Mr. Khan would have been well-advised to say nothing about his address, given the black jacket on his bed in unit 203, but he had not been advised at all and he incriminated himself at Det. Beausoleil’s invitation.
[46] I agree that this was not an interrogation by Beausoleil on the substance of the massage bandit allegations, which would have been ham-fisted, sure to lead to exclusion, and, in any event, premature. Rather, Det. Beausoleil wanted to conduct a search of wherever Mr. Khan was staying in Toronto. While he denied this was his purpose in the benign-sounding query about the address, I am driven to the conclusion that it was.
[47] Clearly, Det. Beausoleil had some purpose in asking for Mr. Khan's address. An obvious purpose would be to get information for a search warrant, for which an address is essential. But the only other purpose suggested is that he wanted the address for administrative reasons, including preparation of documentation for a bail hearing and the computerized court information form.
[48] This does not make sense. Mr. Khan might face a bail hearing the next day, but he was not going to propose as his address while on release an Airbnb unit in which he had spent eight nights and had just one more booked. Det. Beausoleil researched the address online, spoke to the owner, printed a photo of the location, showed it to Mr. Khan, and delegated Sgt. Contant to visit the building in person. It is not believable that he did all this to assess the unit's suitability as a place for Mr. Khan to reside on a possible bail order, which the police intended to oppose and which, with his status as a visitor to Canada and the powerful case against him, he was virtually certain to be denied. The police focus on searching unit 203 for evidence is illustrated by Sgt. Contant's awareness, before arriving at 287 Parliament St., that if this proved to be Mr. Khan's address it was likely to be the subject of a search warrant application. That was the reason for his entry into the room. Det. Cst. Magee would devote a considerable amount of effort to completing the warrant application that night. The priority attached to the search was obvious. When Det. Beausoleil asked Mr. Khan the question only he could answer, it was to obtain necessary information for the warrant application, not to brief the Crown or assist the Court for a bail hearing. It was investigative questioning intended to elicit evidence.
[49] Extending to Mr. Khan this low-key invitation to self-incrimination when Det. Beausoleil either knew or was indifferent to the reality that he had not yet received legal advice was sure to subvert the constitutional protections created for persons in the position of Mr. Khan. Not telling him of the broader massage bandit investigation underway made his willingness to talk more likely. While the Crown argued that this conduct was "negligent"—and perhaps significantly so—it is my view that if it was not what Det. Beausoleil said it was, then it was in bad faith. That is a conclusion fortified by the false explanation he gave for his dealings with Mr. Khan in court.
G. ADMISSIBILITY OF EVIDENCE OBTAINED IN VIOLATION OF CHARTER RIGHTS.
[50] Because the Crown wishes to lead evidence seized in the Ram truck and the Airbnb unit, and because there was more than one search at both locations (the final ones under warrant), it is helpful to summarize what evidence was found in which locations and when it was seized.
[51] The truck was originally searched after the arrest on October 22, 2019, first by the arresting officers, Constables Celestine and Spade, then by Holdup Squad Sgt. Contant. The arresting officers saw the knife and cell phones. Sgt. Contant, arriving later, saw the knife and cell phones and observed the baseball hat with the distinctive logo in the paper bag. He seized the knife and phones but left the hat and bag in place.
[52] The truck was then searched on October 26, 2019 pursuant to a warrant obtained on an application by Det. Cst. Magee. At that time, an identification officer seized the previously observed hat, along with aviator sunglasses and a metal chain necklace, which are said to have potential value in identifying Mr. Khan as the massage bandit.
[53] With respect to unit 203 at 287 Parliament St., the first entry was by Sgt. Contant on the afternoon of October 22 when he went in without a warrant to look for other suspects, victims, and weapons in anticipation of a search warrant being executed at a later time. He observed the distinctive black leather jacket on the bed post but did not seize it at that time.
[54] On the evening of October 22, a warrant was obtained by Detective Constable Magee, who executed it at 287 Parliament St. and seized the leather jacket.
[55] I have already determined that there was no constitutional flaw in the searches conducted incident to the arrest of Mr. Khan, either by the arresting officers or Sgt. Contant. This means that the knife and the two cell phones (the potential significance of which is unclear on this application) were acquired before, and apart from, any constitutional violation—facts which favour but do not demand their admission into evidence.
[56] The admissibility of this entire body of evidence must be assessed under the criteria in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 71, 131, to determine whether it was "obtained in a manner" that violated Mr. Khan's rights and whether "admission of it in the proceedings would bring the administration of justice into disrepute" under s. 24(2) of the Charter.
[57] The threshold question is not in dispute, because the Crown agrees that addressing the "manner" in which evidence was obtained allows for a survey of investigative conduct that goes beyond the immediate cause-and-effect relationship between a violation of rights and the acquisition of evidence. The court may consider a broader course of conduct, including conduct that followed, in time, the obtaining of the contested evidence and could not be said to have led to its acquisition. The decision of Laskin J.A. in R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, traces the law's evolution and its arrival at the conclusion that, respecting entry into s. 24(2):
(i) The approach should be generous, consistent with the purpose of s. 24(2);
(ii) The court should consider the entire “chain of events” between the accused and the police;
(iii) The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct;
(iv) The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections;
(v) But the connection cannot be either too tenuous or too remote: at para. 72.
[58] I take this to reflect a belief that the Charter is intended to preserve rights and freedoms, and to ensure that their observance is understood by the public to be a priority and understood by those who enforce the law to be a duty. The Charter is more than a code of criminal procedure or a manual of evidentiary rules, and access to it protections and remedies should not be inhibited by overly technical pre-conditions. The Crown agrees that the evidence in this case is not too remotely or tenuously connected to the violation of rights to be examined under s. 24(2).
[59] Still, the degree of connection between a violation of rights and the evidence challenged by a defendant is relevant to the criteria for deciding whether its admission will enhance or damage the reputation of the administration of justice. Those familiar criteria are set out in Grant, at para 71, as follows:
When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. [Emphasis added.]
[60] The first two criteria, when satisfied by an applicant, tend to support exclusion of evidence as a remedy for a breach of rights. The third tends to support the admission of the evidence, despite the breach of rights.
[61] The more tenuous the link—causal, temporal or contextual—between police misconduct and the acquisition of evidence, the less serious the violation is likely to be and the less impact on the constitutional interests of the accused it is likely to have. This is true of the assessment of causation and the related issue of discoverability—whether evidence would have come into the possession of the authorities lawfully in any event, without breaches of the Charter. I take the law to be that the resolution of this question is relevant to the admissibility of evidence, but not determinative of it. The focus is ultimately on the repute of the administration of justice, examined through the lens of the Grant factors.
[62] The parties draw on two cases with many similarities that reached different results. In R. v. Rover, 2018 ONCA 745, there was, as in this case, a lengthy delay in allowing an accused to contact counsel after he expressed a wish to do so, in order to ensure that evidence was not destroyed before a search warrant was executed. This delay led to the exclusion of narcotics seized under the warrant. There was no causal link between the breach and the warrant for the acquisition of evidence, though there was a close temporal connection. The evidence showed, however, that the delaying of access to counsel pending searches was an established police policy and thus constituted "very serious" misconduct: Rover, at paras. 35, 39-42.
[63] In considering the second Grant factor, the Court of Appeal in Rover characterized access to counsel as a "lifeline for detained persons" with value not only as a source of legal advice but also as an assurance "that they are not entirely at the mercy of the police while detained": Rover, at para. 45. There was no investigative questioning of the detained accused in Rover, leading the court to hold that while the impact of the violation "was certainly not as serious as it would have been had there been a causal connection between the breach and the obtaining of the evidence, it was nonetheless significant": Rover, at paras. 43-47. Recognizing that the impact of exclusion, at the third stage of analysis, was "to allow a guilty person to go free," the Court nonetheless excluded the evidence, making reference in doing so to R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643: Rover, at paras. 48-49.
[64] R. v. Hobeika, 2020 ONCA 750, 153 O.R. (3d) 350, was another case in which a detainee’s access to counsel was delayed until the execution of a search warrant. There was, again, no causal link between the misconduct and the search through which the contested evidence was obtained. Stressing that on the record before them, there was no evidence of a systemic practice of delaying access to counsel pending search warrants, the Court distinguished Rover and found the delay to be a "situation-specific, isolated failure, albeit a serious one." This difference tilted the balancing in favour of admitting the evidence: Hobeika, at paras. 79-90.
[65] In both Rover and Hobeika, the Court of Appeal recognized that no direct link between the constitutional violation and the acquisition of the evidence was needed to trigger the s. 24(2) inquiry. The "manner" in which the seized physical evidence was obtained included the denial of the right to counsel, even though that denial played no role in obtaining the evidence. In Rover, the evidence was excluded despite the absence of a direct link between its acquisition and the breach.
[66] R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, is relied on by the parties and is helpful to understanding both the application of s. 24(2) and the role of discoverability in it. The Supreme Court restored an acquittal on a charge of murder at trial, which had resulted from the exclusion of evidence obtained during a series of rights violations. The Court considered the opinion of the Québec Court of Appeal in overturning the acquittal that "the impact of the violations was attenuated because the evidence could have been lawfully obtained": Côté, at para. 58.
[67] The Court noted that Grant assigns a role to discoverability in "assessing the actual impact of the breach on the protected interests of the accused" at the second stage of analysis and holds that "[t]he more likely it is that evidence would have been obtained without the statement, the lesser the impact of the breach on the accused's underlying interest against self-incrimination": Grant, at para. 122; Côté, at para. 65.
[68] In Côté, the Supreme Court held that the Court of Appeal had given too much emphasis to discoverability and causation in reversing the trial judgement which had taken a broader view of the breaches and their impact on the case. Cromwell J. said, at para. 79:
Grant 1993 [R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, 84 C.C.C. (3d) 173] provides a good example of how illegal warrantless searches can taint a subsequent search that is otherwise lawful. In that case, the information obtained through the warrantless perimeter search was used to support the police’s application for search warrants. This Court held that once the illegally obtained information was excised from the affidavits presented to the issuing justice, the information that remained was sufficient to issue the warrants. While this Court held that the warrants were valid, it found that the illegal searches “were nevertheless an integral component in a series of investigative tactics which led to the unearthing of the evidence in question”. It was thus “unrealistic to view the perimeter searches as severable from the total investigatory process which culminated in discovery of the impugned evidence” (p. 255). Similarly, in the case at bar, given the trial judge’s findings of fact that the police misconduct was continual and systematic from the outset of the investigation, the question of exclusion must not be approached in a compartmentalized fashion. [Emphasis added.]
[69] These authorities shape my approach to the issues of admissibility in this case, which are rather intricate as a result of the series of searches of both the truck and the unit, and the temporal separation between the observation of some evidence in an initial search and its final acquisition in a later seizure.
[70] It is open to me, as I understand the authorities, to characterize the entire investigation, from arrest through the search warrants, as blighted by the acknowledged serious misconduct in delaying Mr. Khan's access to counsel and questioning him about his address while this violation was occurring. I could, on this approach, reach back to exclude evidence that temporally preceded the violations and was causally unconnected to them—in particular, the fruits of the searches incident to arrest. I could also draw a temporal line and treat the evidence acquired after the s. 10(b) violations as the point when exclusion should occur. Alternatively, I could emphasize the discoverability of some of the physical evidence without Charter violations and leave the Crown case largely intact. Summarizing what the law allows a judge to do goes only a limited way to helping decide what the judge should do. The law, in the end, provides no packaged answer suited to every case and each judge must reach a subjective assessment, guided by the text of s. 24(2), by Grant, and by authorities applying both.
[71] I begin this process with a characterization of what I view as the turning point in this case from both an investigative and constitutional standpoint—Detective Beausoleil’s questioning of Mr. Khan about his address in Toronto. This led to the search by Sgt. Contant, which uncovered the jacket, which in turn supported the warrant under which the jacket was seized. This unique jacket is, with the other evidence, capable of removing any doubt that Mr. Khan is the massage bandit.
[72] The improper questioning was preceded by an unjustified denial of access to counsel for a person in great need of a lawyer. Counsel would likely have realized the danger of their client revealing the address of his rental room and advised against it. Further, counsel would have been the "lifeline” contemplated by Rover.
[73] The specific prohibition in the authorities under s. 10(b) is on investigative questioning, while an accused has not been given the opportunity to contact counsel: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 26; Manninen, at paras. 23-24. In finding that Detective Beausoleil was not engaged in the purely administrative questioning he testified to, I have concluded that his real purpose was to have Mr. Khan contribute critical information to an aspect of the massage bandit investigation that Detective Beausoleil and his colleagues were intent upon pursuing—a search of his room.
[74] The delay in facilitating access to counsel would by itself have justified scrutiny of the evidence acquired after it, but such an assessment could well have turned out as it did in Hobeika without evidence that Constable Mitchener's disregard of rights had systemic implications. However, when the delay is combined with the much more intrusive and calculated questioning of the defendant, I can only characterize the overall violation of rights as very serious. I find that the lead investigator acted in bad faith toward Mr. Khan and that the gravity of his conduct was compounded by his denial of it in court: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 26.
[75] I note in making these findings that when asked during submissions if it would be unreasonable to conclude that Detective Beausoleil was acting with the motives I have ascribed to him, the Crown accepted that it would not.
[76] I consider the gravity of the violations to be elevated somewhat by the unjustified entry by Sgt. Contant into unit 203 before a warrant was obtained. The issuance of a warrant for a temporary residence was not a foregone conclusion. There was nothing in the officer’s evidence that suggested he was concerned about either the limits on his authority to enter dwelling-houses under the "exigent circumstances" exception nor his specific grounds for finding the test of exigency to be satisfied. His behaviour, if not quite proving a systemic pattern, strongly suggests the lack of any systemic constraints on searches of this nature.
[77] The effect of the constitutionally defective searches on Mr. Khan’s protected interests was reduced because he had a relatively low privacy interest in the truck: R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 31. The Airbnb unit, on the other hand, was a "home away from home" in which he had a substantial expectation of privacy: R. v. Campbell, 2019 ONSC 6183, at paras. 31-35. It could only be penetrated by a lawful procedure based on constitutionally acquired information and a judicially approved warrant. The actions of Detective Beausoleil and Sgt. Contant, which followed closely upon each other, fell far short of that standard.
[78] With that said, the key element of the second stage of the Grant analysis relates not to privacy but to the impact on Mr. Khan’s interests of the denial of the chance to consult counsel—with an awareness of his jeopardy—combined with the improper questioning to elicit evidence. The improper questioning distinguishes this case from both Rover and Hobeika.
[79] The Crown sites R v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, where there was both protracted delay in arranging access to counsel and an improper investigative question of the accused, which was intended to elicit incriminating evidence from him. This combination led to a serious s. 10(b) violation. There was, however, no positive connection between the unlawful questioning and the acquisition of the contested evidence in Pileggi, which appears to have been important to the Court of Appeal's decision to admit the evidence under s. 24(2). Moreover, in Pileggi the police made genuine (though ineffective) efforts to contact private counsel during the period of unacceptable delay and made sure the accused "was kept apprised of attempts to engage duty counsel on his behalf," which mitigated the sense of isolation and helplessness of the detained accused: Pileggi, at para 124. The facts in Pileggi highlight the contrast with this case, where the highly improper questioning provided the police with critical information used to obtain evidence against Mr. Khan, and where the only conversation with Mr. Khan about counsel was the exchange upon entering 55 Division about the inability of the police to reach his lawyer in Italy, and the reference that duty counsel would be made available. Mr. Khan said that speaking to duty counsel would be a good idea. Despite this exchange, in a building filled with telephones, another hour and a quarter went by before Mr. Khan spoke to a lawyer.
[80] Pileggi is unlike the present case on two points. First, in Pileggi the impact on the interests of the accused from the improper questioning was "fleeting and inconsequential": para.113. Here, it was dramatic, and it continues to the present proceedings. Second, in Pileggi, the police took positive steps to reach counsel and kept the accused informed that they were doing so. Here, the first half of Mr. Khan's detention included no effort to connect him with counsel. The second half began with an abrupt dismissal of his reference to private counsel and an assurance about duty counsel’s availability that was not made good on for far too long.
[81] In the circumstances, I regard the impact of the s. 10(b) breaches on Mr. Khan's constitutional interests as serious. His improvident answer to Detective Beausoleil’s improper question, asked when Mr. Khan should have had the advice of counsel, was the very kind of prejudicial event that s. 10(b) is intended to afford an accused some protection against.
[82] These two findings reduce the importance of weighing the third Grant factor: McGuffie, para. 62. However, the analysis is not quite as straightforward in this case as in some and I would like to consider the third factor in combination with the second.
[83] The public's interest in the prosecution of Mr. Khan on the substantive merits of the case, rather than on evidence filtered through constitutional concerns, is in one sense powerful. The Crown alleges a series of dangerous robberies that would, if proved, amount to a descent by Mr. Khan into unchecked lawlessness. Additionally, it includes an allegation of the sexual violation of a vulnerable victim. A trial that comprehensively surveys all that can be known about these allegations is desirable and would be viewed that way by the public.
[84] On the other hand, the vindication of important rights, which were badly breached, does not entail the complete failure of the case against Mr. Khan. He was apparently caught in the immediate aftermath of committing a robbery, with a knife, at a massage parlour, on October 22, 2019. This robbery seems to be characteristic of the other massage bandit offences with which he is charged, but on these charges (counts 25-27 on the indictment), the Crown case is strong and will remain intact after any decision I make under s. 24(2). This relieves the starkness of the all-or-nothing choice judges often face in reckoning with the third Grant factor.
[85] The findings of fact I have made, examined in light of the law on s. 24(2), decisively compel exclusion from evidence of the leather jacket found in unit 203. The same reasoning compels exclusion of surveillance images of Mr. Khan at 287 Parliament St., apparently wearing the leather jacket.
[86] However, there are other considerations that must be addressed with respect to the evidence found in the truck, which I outlined earlier. Some of this evidence (the knife and cell phones) was seen and seized shortly after the arrest. Another important item (the hat in the bag) was seen in the aftermath of the arrest, but not seized until execution of the truck warrant on October 26, 2019. More evidence that could link Mr. Khan to the massage bandit offences was located and seized under this search warrant. It included a chain necklace and aviator sunglasses that resemble items worn by the massage bandit. More consequentially, it included a receipt from a Whole Foods supermarket, on Avenue Road in Toronto, which could be taken to place Mr. Khan in the store on October 17, 2019 at 8:12 p.m. The police seized from the Whole Foods store security videotape that showed a man with many similarities to Mr. Khan wearing a jacket very similar to the one seized in his room. The time stamp on the receipt found in Mr. Khan’s rented truck, combined with the time stamp on the security footage at the supermarket, seem to prove his possession of the distinctive leather jacket as effectively as finding it in his rented room.
[87] This body of evidence comes squarely within the issues raised by the case law on discoverability, proximity, remoteness, tenuousness and temporal, causal, and contextual connections discussed above. I know of no case law that directly resolves the questions it raises and no Solomonic formula for drawing the line between admission and exclusion. My decision on these matters is informed by what I can glean from the case law and by my sense of what is likely to safeguard or enhance public perceptions of the administration of justice.
[88] I begin with a discussion of proximity and discoverability together. To this point I have said relatively little about the October 22 warrant for unit 203 at 287 Parliament St., and the October 26 warrant for the truck, which had been in a police pound since the arrest four days earlier. Those warrants were based on affidavits from Det. Cst. Magee, which laid emphasis on the finding of the leather jacket in unit 203 by Sgt. Contant. The affidavit for the truck warrant set out in detail the background to the discovery and seizure of the jacket (while omitting anything that would suggest to the justice the violation of rights through which the address was obtained). The account of the jacket’s discovery concludes with:
At approximately 3:25 Contant entered the room #203 by way of Lu opening the door with the key and physically cleared the room and observed no other occupants inside the room nor any weapons or hazards that would compromise officer safety. Immediately upon Contant's entry into the room he observed in plain view, a distinctive black leather jacket with several patches draped over the bed post. This jacket was the same jacket captured on video surveillance at various robberies being worn by the suspect. [Emphasis added.]
[89] This was tantamount to an assertion by Det. Cst. Magee that Mr. Khan was proven by the finding of the leather jacket to be the massage bandit. It shows what a prominent role this unconstitutionally obtained evidence played in the unfolding of the case. It illustrates why the finding was emphasized in the application for the warrant to search the truck.
[90] The unlawful seizure of the jacket contributed to a warrant under which the truck, already searched by three people on October 22, was searched again, in detail, on October 26 by an identification officer. It cannot be said here, unlike in other cases, that there is no causal connection between the breach and the seizure in the truck. While I believe there was not a "but for" causative connection—the truck warrant would likely still have issued without the inferences supported by the leather jacket—the virtually conclusive proof that Mr. Khan wore the leather jacket made the inference of his guilt on some of the other offences straightforward, if not inevitable, for a justice. There is a causal link between the breaches and the evidence from the truck.
[91] The search of the truck followed in time the Charter breaches. I do not consider the passage of four days as shrinking the temporal connection since that timing was entirely in the hands of the police with Mr. Khan in custody and the truck in the pound. It was a static situation, awaiting only the preparation of the documentation to obtain the warrant. The warrant materials relied upon unconstitutional conduct by Detective Beausoleil and Sgt. Contant, and the information to obtain the warrant was prepared by their Holdup Squad colleague, Det. Cst. Magee. The search of the truck was, at least, "an integral component in a series of investigative tactics which led to the unearthing of the evidence in question": Côté, at para. 79.
[92] These causal, temporal and contextual connections tell in favour of exclusion of the fruits of the truck search for the same reasons the leather jacket is excluded. The reality of this case is that, if the route to the leather jacket by way of the Whole Foods receipt from the truck is allowed into evidence, the Crown will be in a position identical to the one it would be in if the application failed entirely. Given the societal and personal implications of the police misconduct, this outcome would not serve the objectives of s. 24(2). In effect, the unlawful seizure that linked Mr. Khan to the leather jacket would have contributed to finding a different way to link him to the leather jacket.
[93] It is also true, however, that the search warrant was requested by the police partly because of their own misunderstanding of their powers of search incident to arrest. There was no legal principle that required them to approach searching the truck at the roadside, and making seizures, as diffidently as they did. Any officer who, while searching pursuant to the arrest for the October 22 robbery, recognized the possible significance of the metal chain or the aviator sunglasses could have seized them. Sgt. Contant, conducting a lawful search incident to the arrest, certainly could have seized the hat with the logo, the significance of which he recognized at the time. No one searching incident to arrest was likely, at that stage, to recognize the possible value of the Whole Foods receipt as a bridge to the leather jacket and seize it.
[94] On this view, much of the evidence was discoverable before the constitutional breaches. Does this affect the admissibility calculus under Grant when the actual seizure was linked causally, temporally and contextually to the serious breaches?
[95] In my judgement, it does not. A quest for avenues of discoverability on these matters soon devolves into speculation: Côté, para. 70. We know that the Charter violations played a contributing role in the search of the truck under the warrant. We would have to conjure a hypothetical situation, in which we did not know who did a full search incident to arrest, with what level of knowledge, and with what degree of thoroughness, to conclude that the items now in issue—the receipt, sunglasses, chain, and hat—would have been seized with a different kind of search after the arrest. The law presented no impediment to a thorough search on October 22 but how it would have unfolded in fact cannot be persuasively reconstructed.
[96] For these reasons, I decline to carve out a separate and hypothetical analysis of the truck searches following the arrest. Those items came into police possession after, and to some degree, because of, the misconduct that led to the leather jacket. The misconduct is not mitigated by other facts to any meaningful degree. It is serious enough in its societal and personal impact to merit exclusion where the temporal and causal links are present though not robust. Confidence in the administration of justice will be preserved rather than diminished by refusing to let into evidence the fruits of a tainted warrant in the context of a constitutionally flawed investigation.
[97] My ruling is driven ultimately by my perception of the gravity of the police misconduct which rose above the routine when Detective Beausoleil entered room 204 and asked Mr. Khan a question that undermined his rights. This was the beginning of a through-line that extends from room 204 to the unit entry, the unit search and the truck search and that, if the evidence is admitted, will extend into the trial. The through-line becomes thinner as time passes and the case progresses but its connection to the original wrong never becomes “tenuous” or “remote”. It is conduct from which the court should dissociate itself and the administration of justice.
[98] There are two qualifications to this. First, I see no reason to reach back in time and exclude evidence that came into the possession of the police before the main Charter violations and that was not connected to them in any way that could taint the justice system. The knife and phones seized by the police shortly after the arrest are unrelated to the constitutional breaches. So, too, is the observation Sgt. Contant made of the distinctive logo on the hat—evidence he could give viva voce without making an exhibit of the hat eventually seized on October 26 under the truck warrant. In addition, the silver truck itself would remain available to the Crown as evidence admissible to prove Mr. Khan's guilt on the massage bandit robberies to the extent it has probative value.
[99] Second, this discussion may be largely academic because the Crown, in submissions on the third Grant factor, has taken the position that exclusion of the leather jacket and the contents of the truck seized under the warrant would "gut the prosecution," preventing any case being made on charges other than the ones for the October 22 incident. This is a decision for the Crown, based on its evaluation of what it can prove. It has available to it strong evidence of Mr. Khan’s guilt on the October 22 robbery, images of the robber from the earlier offences that resemble Mr. Khan, the knife in the truck, the distinctive hat in the truck, and the truck itself, along with the closeness of the quite similar offences in time, place, and method. If the Crown concludes it has no reasonable prospect of conviction on any of counts 1-24 of the indictment, it can proceed with its strong evidence on the serious allegations in counts 25-27.
H. SUMMARY OF CONCLUSIONS.
[100] With respect to the allegations of unconstitutional investigative conduct, I find four breaches:
(i) An unreasonable delay in providing Mr. Khan with access to counsel, in violation of s. 10(b) of the Charter;
(ii) A failure to “hold off” questioning Mr. Khan, in violation of s. 10(a) and 10(b), by inquiries intended to further the case against him at a time when he had not spoken to counsel and had not been advised of the scope of his potential liability.
(iii) An unconstitutional entry into Mr. Khan's rented unit at 287 Parliament St. in advance of obtaining a warrant, contrary to s. 8 of the Charter;
(iv) An unconstitutional search of his unit based on grounds obtained through the breach of his rights as described above, contrary to s. 8.
[101] I do not find any breaches of s. 8 of the Charter in the searches performed by Constables Celestine and Spade and Sgt. Contant while Mr. Khan's truck was parked by the roadside following his arrest on October 22.
[102] I have concluded that the identified breaches are serious constitutional violations, and that the investigative questioning of Mr. Khan during a protracted period when he had not received access to counsel, makes them particularly serious.
[103] I have also concluded that the effect of the breaches on Mr. Khan’s constitutional interests was serious, especially in light of the role the improper questioning played in the search of the room and the role the search of the room played in the finding of the jacket and the later search of the truck. The improper questioning, in the context of unreasonable delay, undermined the core interests of a detainee protected by s.10 and the privacy interests protected by s. 8 at a point when Mr. Khan was in acute need of both protections.
[104] With respect to the third Grant factor, recognizing the reliability and probative value of the evidence at issue, I conclude that the factors militating in favour of excluding most of the evidence outweigh the negative impact on perceptions of the administration of justice resulting from adjudication of the charges without consideration of the entirety of the available evidence.
[105] In balancing these factors and having regard to the reputation of the administration of justice, I make the following determinations:
(1) The knife and phone found and seized in the search incident to arrest on October 22, 2019 are admissible.
(2) The evidence of the truck itself and Mr. Khan’s possession of it is admissible.
(3) The visual observations made by Sgt. Contant of the hat in the paper bag on October 22, and any comparison he can make to images from the offences themselves are admissible.
(4) The leather jacket, seized in unit 203 at 287 Parliament St. on October 22, pursuant to a search warrant, is not admissible. Neither is Sgt. Contant's observation of the jacket in the unit following his warrantless entry on the same day.
(5) Surveillance camera images of Mr. Khan said to be wearing the leather jacket at 287 Parliament St. are not admissible.
(6) Evidence obtained through the execution of the search warrant for the Ram truck on October 26, 2019—including the hat in the bag, the aviator sunglasses, the metal chain, the Whole Foods receipt, and evidence derived from these items—is not admissible.
P. Campbell J.
Released: October 21, 2021
COURT FILE NO.: CR-0200-2020
DATE: 20211020
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Plaintiff/Respondent
– and –
SALAH EL DIN M. KHAN
Defendant/Applicant
ruling on admissibility
P. Campbell J.
Released: October 20, 2021