COURT FILE NO.: CR-19-40000581-0000 DATE: 20220310 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – BIRHAN IMAM Defendant/Applicant
Counsel: Joshua Tupper, for the Crown W. Glen Orr, Q.C. and Scott O’Neill, for the Defendant/Applicant
HEARD: March 7, 8 and 9, 2022
Schabas J.
Reasons on Application
[1] The accused is charged with attempted murder, aggravated assault and carrying a concealed weapon contrary to ss. 239, 268 and 90, respectively, of the Criminal Code arising from a stabbing in a mall in Toronto on 8 May 2018.
[2] The matter has come before me for a trial by judge and jury.
[3] The accused has brought a pretrial motion alleging that his rights under s. 10(a) and s. 10(b) of the Canadian Charter of Rights and Freedoms were infringed. The accused seeks exclusion of evidence pursuant to s. 24(2) of the Charter. The notice of application also seeks a stay of proceedings pursuant to s. 24(1) of the Charter, although that remedy was not advanced in submissions by counsel.
[4] On March 7 and 8, 2022 I heard testimony from a number of police officers involved in the accused’s arrest and detention on the evening of 8 May 2018. As one officer could not be located, his evidence from the preliminary inquiry was entered as an exhibit, on consent. I also was shown videos of the accused in detention when being transported from the hospital to the police station, and during the booking procedure at the police station.
The Facts
[5] A short outline of the facts is as follows:
- At approximately 7:14 pm the police were notified of a stabbing that had just occurred at Empress Walk Mall in North York in the City of Toronto.
- At 7:19 pm the accused was arrested by two plainclothes officers across the street from the mall, after being identified to the police by a security guard from the mall who had been following the accused as he walked down Yonge St. The accused was told he was under arrest for attempted murder and was informed of his right to counsel. However, the accused appeared incoherent, or “out of it”, or “zoned out”, and did not respond to his right to counsel and did not appear to understand what was going on. He was non-verbal. At least one of the officers testified that he appeared to be under the influence of drugs and/or alcohol. The accused was searched upon arrest and a folding knife was found in his pocket along with two phones, a lighter, and Social Insurance and debit cards, among other things. Blood was observed on his hands and on his clothing. There was concern for his wellbeing, and an ambulance was called.
- At 7:35 pm custody of the accused was transferred to uniformed officers, he was put in an ambulance, and was handcuffed to both sides of the stretcher.
- At 7:45 pm one of the uniformed officers, Officer Frias, attempted to inform the accused of the reason for his arrest, saying he was under arrest for aggravated assault and assault with a weapon. The accused was not responsive other than to say he had drunk gin and smoked weed.
- At 8:00 pm the accused arrived at North York General Hospital. He was brought to the Emergency Room, triaged by a nurse to whom he said he had been drinking gin and was put into one of the rooms in the Emergency Department. The accused was handcuffed to both sides of the bed in the room.
- By 8:55 pm the accused had been examined by a doctor and a nurse took some blood.
- At approximately 9:15 pm the officers entered the room. The accused appeared to be coherent and gave his name. The accused was informed he was under arrest for aggravated assault and assault with weapon. He was read his right to counsel and cautioned. The accused asked to speak to duty counsel. The police did not facilitate the call at that time and told the accused he would need to wait until he was in a secure area with privacy to make the call. The accused appeared to understand this.
- At 9:50 pm the accused was discharged by the doctor from hospital.
- At 10:04 pm, after leaving the hospital and as he was entering the police car, at his request, the accused was informed of his right to counsel again. The accused repeated his wish to speak to duty counsel and was again told that he needed to wait until they could give him privacy to make the call. The accused appeared to understand this.
- At 10:17 pm the accused arrived at the police station.
- At 10:25 pm the accused was brought before the Staff Sergeant in charge of the station. During the booking process he was again told he would be able to speak to duty counsel when he had privacy and his right to counsel was repeated.
- At 10:42 pm the accused was put in an interview room where he was strip searched - described as a “level 3” search to ensure he had no weapons and would not be a danger to himself or to anyone else.
- At 10:56 pm Officer Frias called duty counsel. No one answered and he left a message with details and asked duty counsel to call back.
- At 11:50 pm the Detective Sergeant who had taken charge of the investigation, Det. Sgt. Kranenberg, was told that duty counsel had not yet called back.
- At 11:53 pm Detective Sergeant Kranenberg called the duty counsel number and left another message.
- At 12:21 pm a call came in from duty counsel. The officer who answered the call, Officer Dyke, testified that she told the duty counsel that the accused was going to be charged with attempted murder, aggravated assault and carrying a concealed weapon. She then transferred the call to the room where the accused was sitting, and the accused spoke to duty counsel.
[6] While the events with the accused were going on at the hospital and at the police station, other officers were investigating the stabbing, interviewing witnesses and gathering evidence. Detective Sergeant Kranenberg said that as many as 30 officers were involved as there were many witnesses to speak to at the mall and calls had been made to 911 that had to be returned to obtain more evidence of what had happened while the event was fresh in people’s minds.
[7] At about 8:50 pm Detective Sergeant Kranenberg learned that a witness had taken a video of the incident on her cellphone, and by 10:10 pm that evening Detective Sergeant Kranenberg had received the video by email and had reviewed it.
The alleged Charter violations
Section 10(a)
[8] Turning to the submissions on the alleged Charter violations, s. 10(a) of the Charter states that “everyone has the right on arrest or detention to be informed promptly of the reasons therefor.” The accused’s submission is that s. 10(a) was violated because, once he became aware of what was happening, the accused was told only that he was charged with aggravated assault and not attempted murder, even though attempted murder was contemplated from the outset since the officer who first arrested him referred to it.
[9] However, courts have consistently held that “s. 10(a) does not require that detainees be told of the technical charges they may ultimately face” and that “a person will be properly advised of the reason for their detention if they are given information that is sufficiently clear and simple to enable them to understand the reason for their detention and the extent of their jeopardy”: see R. v. Roberts, 2018 ONCA 411 at para. 78.
[10] Indeed, sometimes an accused sees charges escalated long after an arrest, and this does not create a s. 10(a) violation.
[11] As the Court of Appeal continued in Roberts:
Put more purposively: ‘The issue is whether what the accused was told, viewed reasonably in all the circumstances, was sufficient to permit [her] to make a reasonable decision to decline or submit to arrest’, or in the alternative, to meaningfully exercise the right to counsel under s. 10(b): R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225 (Ont. C.A.), at para. 125.
[12] In my view, telling the accused that he was under arrest for aggravated assault, which remains one of the charges arising from the stabbing incident, brought home to him the nature and seriousness of the jeopardy he was facing, and gave him a basis to then meaningfully exercise his right to counsel. Further, and in any event, the police advised duty counsel before counsel spoke to the accused, that he was gong to be charged with attempted murder.
[13] In my view, the accused’s rights under s. 10(a) of the Charter were not infringed.
Section 10(b)
[14] Section 10(b) of the Charter provides that “everyone has the right upon arrest or detention to retain and instruct counsel without delay and to be informed of that right.” Here, the accused does not take issue with having been informed of this right, but rather with the delay in actually obtaining legal advice after he became mentally competent and was advised of his rights at 9:16 pm.
[15] I note that, due to the accused’s condition, he does not rely on any delay prior to 9:16 pm.
[16] However, counsel for the accused states that the police breached the accused’s rights by failing to facilitate contact with duty counsel at the hospital, and that his s. 10(b) right was also breached following his booking at the police station when, between 10:50 pm and 12:21 am, he was waiting to speak to duty counsel.
[17] Dealing with the hospital first, the accused relies on the decision of SCC in R. v. Taylor, 2014 SCC 50. In that case, Mr. Taylor was arrested for impaired driving following a motor vehicle accident and was taken to the hospital as “normal practice” to ensure he was not injured. He was informed of his right to counsel and said he wanted to speak to his lawyer, who he named. At the hospital, blood was taken from him which the Crown subsequently sought to lead as evidence. Prior to taking the blood no steps were taken to allow him to speak to counsel, nor was a blood demand made until after the first samples were taken, and then the second set of blood samples were taken without giving him an opportunity to speak to counsel.
[18] The police had no explanation for why they did not attempt to provide Mr. Taylor with the opportunity to speak to a lawyer, saying among other things, that they didn’t think of it. The Supreme Court of Canada agreed that Mr. Taylor’s s. 10(b) rights had been violated. In reaching that conclusion the court cited earlier decisions, stating at para. 21:
The purpose of the s. 10(b) right is “to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights”: Manninen, at pp. 1242-43. The right to retain and instruct counsel is also “meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination”: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 40. Access to legal advice ensures that an individual who is under control of the state and in a situation of legal jeopardy “is able to make a choice to speak to the police investigators that is both free and informed”: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 25.
[19] The Supreme Court of Canada also noted that the duty to inform the accused arises immediately upon arrest or detention, as does the duty to facilitate access. As Abella J. put it at para. 24:
The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v. Luong (2000), 2000 ABCA 301, 271 A.R. 368, at para. 12 (C.A.)). Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.
[20] At para 32, Abella J. referred to the obligation to provide access to counsel at the “earliest practical opportunity.” This includes in a hospital which, as the Court put it, is not a “Charter-free zone.”
[21] This case is quite different from Taylor. The accused was charged with a violent crime. He was placed in a room in the hospital with no phone and was, for much of his time there, not coherent. He was a safety risk, handcuffed to the bed.
[22] When asked why he did not take steps to contact duty counsel there, Officer Frias said it was not a secure place, there was no privacy, it was small, he was concerned for his safety and the safety of others, he did not wish to remove the handcuffs, and the emergency room staff were involved with treating other people. Although the accused was not giving the officer any behavioural challenges, the officer stated that he did not know the accused and was not going to take any chances of creating a situation in which anyone’s life would be put in jeopardy.
[23] These are not “assumptions of impracticality”, as was the case in Taylor (para. 33), but evidence explaining why the police did not facilitate access at that time.
[24] Given the nature of the charges and the recent incident, this case is quite different from Taylor in which the police simply did nothing and did not even turn their mind to the accused’s right to speak to counsel. As Abella J. said, in Taylor there was a “complete denial” of his right to counsel.
[25] In this case the police did not ignore the accused’s right to counsel. They told the accused he would have the opportunity to speak once in a secure and private place, which was repeated 45 minutes after 9:16 pm when he was being transferred to the police station where that opportunity would be provided.
[26] In this case, the police have provided evidence of why they chose not to try to contact duty counsel at the hospital. That explanation is reasonable and compelling. The charges involved a violent crime and there were, quite reasonably, significant security concerns. Further, unlike Taylor, the police did not seek to elicit any incriminating evidence from the accused at the hospital.
[27] Accordingly, I find no breach of s. 10(b) of the Charter arising from the time when the accused was at the hospital following 9:16 pm until he left at around 10:00 pm.
[28] Turning to the delay at the police station, it is argued that the police should have been more diligent and “raised a clamour” to connect the accused with duty counsel after the call was made at 10:50 pm. Counsel for the accused also argued that systemic delay should not be allowed to excuse the situation.
[29] There is no doubt, since the decision in R. v. Prosper, [1994] 3 SCR 236, that the state has an obligation to facilitate the right to counsel, including the availability of duty counsel, and that the availability of duty counsel affects the length of the “holding off” period when police should not question a detainee until they have had the opportunity to consult counsel.
[30] In this case, the delay was too long, the accused argues. The police, by simply calling and leaving a message “in the hands of fate”, as counsel put it, to see if someone would call back, failed, and the system failed.
[31] I do not agree. That it took 90 minutes for duty counsel to call back is unfortunate, but is not due to the fault of the police. They followed the procedure which was to call a number and, if no duty counsel answered, to leave a message and not call back, even though Detective Sergeant Kranenberg did call and leave another message, quite reasonably, after one hour. It was not left in the “hands of fate”, as counsel argued.
[32] As to systemic delay, Detective Sergeant Kranenberg testified that it was not unusual at that time that duty counsel took time to call them back. She agreed that there were sometimes long waits for duty counsel at that time. She said that an hour was a typical wait time, and that it often took an hour or more to call back. But she also said that on some occasions, duty counsel did answer the phone personally. Detective Sergeant Kranenberg also said she had raised the delay with others, including her superior, as part of regular discussion, but said it was not a police matter.
[33] While this evidence raises concerns that there may have been some systemic failings, I do not have enough evidence to know whether the delay in Mr. Imam speaking to counsel was a result of an inadequate system, or that it was simply a busy night, or that for some reason there were fewer duty counsel available that night. No evidence of any other experience was led.
[34] Furthermore, while I appreciate that the Charter speaks of facilitating this right “without delay” and that this has been interpreted to mean “immediately”, all cases turn on their context and specific facts. In some circumstances 90 minutes may seem to be very long indeed; in others, it may be quite quick.
[35] In this case, I do not have a basis to say that waiting 90 minutes to have duty counsel call back, especially in circumstances where the police were taking no steps to elicit any evidence from the accused which relates to the purpose of s. 10(b), constitutes a violation of “without delay.”
[36] Accordingly, I conclude that the accused’s rights under s. 10(b) of the Charter have not been infringed.
Section 24
[37] Although it is not necessary for me to address s. 24 of the Charter, had I found a breach of s. 10, I would not have excluded any evidence under s. 24(2), or issued a stay of proceedings under s. 24(1) of the Charter.
[38] Despite the forceful submissions of counsel for the accused, I am not persuaded that the evidence sought to be excluded was “obtained in a manner that infringed or denied” the accused’s Charter rights.
[39] In this case the accused does not seek to exclude any inculpatory evidence obtained during the accused’s arrest and detention; rather, he argues that the evidence obtained from eyewitnesses to the incident, and the video obtained from one of them that evening, should be excluded. It is argued, based on the decisions in R. v. Pino, 2016 ONCA 389, and R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, that the evidence arises from the same “transaction” as the alleged Charter breach and, given that a causal connection between the Charter breach and the obtaining of the evidence is not a prerequisite to applying s. 24(2), giving the phrase “obtained in a manner” an appropriately generous interpretation, the evidence ought to be excluded.
[40] I cannot accept this submission. The cases speak of the evidence in issue, such as a statement, arising from the “same transaction of course of conduct”: see Wittwer at para. 21, quoted by Doherty J.A. in Pino at para. 55. As Fish J. went on to say in Wittwer in the same paragraph “The required connection between the breach and the subsequent statement may be "temporal, contextual, causal or a combination of the three": R. v. Plaha (2004), 189 O.A.C. 376, at para. 45.
[41] In this case, the evidence the accused seeks to exclude has no connection to his arrest or detention. It arises from the police investigating a crime in a public place, a shopping mall, doing expected police work, regardless of who the suspect was and without any connection to the accused.
[42] The obtaining of the evidence may have occurred at the same time as the accused’s detention but that does not create the kind of “temporal, contextual or causal connection” that would fall within the approach of the courts to date. Indeed, to accept the accused’s argument would be to find a connection that is, at best, “remote and tenuous”, which the Supreme Court of Canada has said will not suffice: see R. v. Goldhart, [1996] 2 S.C.R. 463, at para. 40; Plaha, at para. 45.
[43] I would go further in this case, and conclude that to accept the accused’s position would effectively eliminate the words “obtained in a manner that infringed or denied any rights or freedoms” from s. 24(2).
[44] In any event, even if the evidence was “obtained in a manner” that breached the accused’s rights, applying the test in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, I would not have excluded any of the evidence.
[45] If a Charter breach occurred, it was not serious. The police were attentive to the accused’s condition, they did not ignore his right to counsel, the accused suffered no significant prejudice from the delay and he was otherwise well-treated. A violation of s. 10(b), if it occurred, did not have a serious impact on the accused. He did not provide any inculpatory evidence. Further, the evidence sought to be excluded includes real evidence in the form of a video and statements from independent eyewitnesses which, if excluded, would have a serious detrimental impact on the public interest in adjudicating a case on its merits.
[46] In these circumstances, I cannot conclude that the admission of the evidence would bring the administration of justice into disrepute. Quite the contrary.
[47] Finally, dealing with s. 24(1) of the Charter, a stay of proceedings is an extraordinary remedy reserved for the “clearest of cases”: see, e.g., R. v. Regan, 2002 SCC 12, 2002 1 SCR 297 at para. 53. For all the reasons set out above, this case does not fall within that category.
[48] The application is dismissed.
Paul B. Schabas J.