R. v. Mohamed, 2022 ONSC 3029

COURT FILE NO.: CR-22-10000089-0000

DATE: 20220518

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SHAHABELDIN MOHAMED

M. Passeri and A. Kwan, for the Crown

A. Hussain, for Mr. Mohamed

HEARD: January 18-21, 24-27, February 1, 3, 4, 7-11, 2022

REASONS FOR JUDGMENT

SCHRECK J.:

1Shahabeldin Mohamed was arrested on a charge of robbery on the afternoon of May 8, 2019. He alleges that during his arrest and the hours that followed it, the police violated his s. 7, s. 10(a) and s. 10(b) Charter rights. He seeks as a remedy a stay of proceedings or a reduction in sentence.

2The s. 7 claim is based on the fact that the police officer who arrested Mr. Mohamed used physical force, including striking him several times. There is no issue that the officer used force. Rather, the issue is whether that force was justified. The s. 10(a) and s. 10(b) claims are based on assertions in the applicant’s material that he was not advised of the reason for his arrest or his right to counsel and was not provided an opportunity to speak to counsel until several hours after his arrest. The delay in implementing the right to counsel is not in dispute, although whether the delay was justified is.

3The Charter application hearing was blended with the applicant’s trial on robbery and other charges together with three co-accused and counsel agreed that submissions on the application would be made in writing at the conclusion of the trial and a determination made at the same time as verdicts were rendered. The applicant did not call any evidence at trial or on the Charter application and relies only on evidence called by the Crown.¹

4For the reasons that follow, I am not persuaded that there was any breach of the applicant’s s. 7 or s. 10(a) Charter rights, nor am I persuaded that the informational component of his s. 10(b) right to counsel was breached. I am, however, of the view that there was a serious breach of the implementational component of s. 10(b). I will determine what remedy, if any, is appropriate after hearing further submissions from counsel.

I. EVIDENCE

A. The “Take Down”

5On May 8, 2019, a number of police officers arrived at an auto body shop on Crockford Boulevard in Toronto to effect a “take down” of a number of suspects who had been the subjects of an ongoing investigation. The police had grounds to believe that the suspects had planned and executed an armed robbery of a jewelry store earlier that day and had discharged a firearm at a nearby location prior to the robbery in order to distract the police while the robbery took place.

6At some time shortly before 1:23 p.m., The applicant left the auto body shop just before the police arrived driving a Range Rover that the police believed had been used in the robbery. The applicant was driving northbound when he saw the police. He immediately made a U-turn and began to drive southbound at a high rate of speed. He drove in the northbound lane and narrowly missed a police vehicle. Four unmarked police cars followed the Range Rover and tried to contain it. The Range Rover hit two of the police vehicles and then a concrete barrier. According to one of the police officers, D.C. Ross, after hitting the barrier, the Range Rover became airborne and then entered the intersection of Bertrand Avenue and Warden Avenue, where it collided with another vehicle.

7According to D.C. Ross, The applicant got out of the Range Rover and began to run away through traffic, where he was almost hit by a couple of vehicles. He made it to the sidewalk and began to run southbound on Warden Avenue. D.C. Ross drove through the intersection, stopped his vehicle and began to chase the applicant on foot. He yelled “Police, you’re under arrest” several times, but the applicant did not stop. Eventually, he tackled the applicant to the ground.

B. The Alleged Excessive Force

8D.C. Ross testified that he yelled at the applicant to give him his hand, but the applicant did not comply. The applicant reached for his waistband, which caused D.C. Ross concern as it was his understanding that the applicant was a suspect in an armed robbery. He administered two to four “distractionary strikes” to the applicant’s rib area using his fists. He was then able to take control of the applicant’s hand and handcuff him.

C. The Applicant is Advised of the Reasons for Arrest and Right to Counsel

9According to D.C. Ross, once the applicant was handcuffed, he stood him up, told him he was under arrest for robbery, and advised him of his right to counsel. The applicant indicated that he wished to speak to a lawyer and D.C. Ross told him that he would have an opportunity to do so once he got to the police station. D.C. Ross was unable to say exactly when he advised the applicant of his right to counsel, but it was between 1:25 p.m. and 1:50 p.m. and was closer to the former time than the latter. At 1:50 p.m., D.C. Ross handed the applicant over to other officers, P.C. Huang and P.C. Fisher. D.C. Ross denied seeing any injuries on the applicant.

D. The Trip to the Hospital

10P.C. Fisher again advised the applicant of his right to counsel and he told her that he wished to speak to a lawyer, Amadeo DiCarlo. The applicant advised P.C. Huang and his partner, P.C. Fisher, that he was injured and asked to be seen by paramedics. Paramedics arrived at 2:12 p.m. One of them told the officer that the applicant had a laceration on his face and should be seen at the hospital to ensure that he did not have more serious injuries. The applicant was taken to the hospital, arriving there at 2:40 p.m. He waited at the hospital until he was assessed by a doctor at 3:37 p.m. The applicant was x-rayed on the doctor’s recommendation at 4:04 p.m. Following the x-ray, the doctor advised P.C. Huang that it was possible that the applicant had a hairline rib fracture. The applicant was discharged from the hospital at 4:40 p.m.

11P.C. Fisher did not facilitate contact between the applicant and his counsel while at the hospital:

Q. Police officers are able to use phones at hospitals to call lawyers?

A. That is correct but I wouldn’t be able to give him privacy to speak with his lawyer.

Q. Why would you not be able to give him privacy?

A. Because he’s currently in custody and I don’t know where the phone would be located, if it would be close to other hospital staff members, other patients.

Q. Did you make any inquiries? Did you make any inquiries where it would be located, how it would happen?

A. No I did not.

Q. Did you ask if there’s a cordless or a wired phone or can he get some privacy or anything?

A. No I did not.

Q. Did you ask for a phone at the hospital?

A. No I did not.

E. Arrival at the Police Station

12After they left the hospital, P.C. Huang and P.C. Fisher took the applicant to the police station. They did not arrive there until 5:32 p.m. because of “heavy traffic” and did not enter the station until 6:35 p.m. because the station was “very busy” and they had to wait in the sallyport for a long time. Once in the station, the applicant was paraded before the officer-in-charge and subjected to a strip search, after which he was placed in an interview room.

13According to P.C. Huang, P.C. Fisher told him that she would contact the applicant’s lawyer. P.C. Fisher, however, testified that she did not contact the applicant’s lawyer but instead relayed the name of his lawyer to one of the investigators whose name she could not recall. In her testimony, she explained why she did not contact the lawyer herself:

Q. Is there any reason why you didn’t call the lawyer on behalf of Mr. Mohamed?

A. I don’t -- I didn’t have all of the information that his lawyer would request upon speaking to me such as what exactly happened; what are the exact charges. I only knew of the dangerous operation. I didn’t know if there was more or less so I left that in the hands of the investigators.

F. The Applicant’s Contact With Counsel

14P.C. Artinian testified that at 8:20 p.m., he relieved other officers in the “prisoner management” area of the police station to assist prisoners in contacting their lawyers. At 9:02 p.m., he escorted the applicant to the “lawyer booth,” a private area where individuals in custody could speak to their lawyers. According to P.C. Artinian, there was only one “lawyer booth” at the station. He took the applicant there after being told by another officer that the lawyer had returned a call made earlier. The applicant then spoke to his counsel until 9:39 p.m.

15The applicant’s lawyer was returning a call made by D.C. Asner. D.C. Asner had arrived at the station at 5:35 p.m. After he arrived, he made some notes in relation to an interaction he had had with another person who had been arrested, following which he examined a cell phone that had been seized from another suspect. According to D.C. Asner, examining the cell phone was a priority because one suspect who was believed to have been involved in a shooting remained at large and he believed that information on the phone might lead to locating him. At 8:23 p.m., he began contacting the lawyers of people who had been arrested. At 8:56 p.m., he telephoned the applicant’s lawyer, Mr. DiCarlo, and left a message for him.

II. ANALYSIS

A. Section 7 of the Charter

(i) The Law

16Police officers are sometimes required to use force to carry out their duties and are expressly authorized to do so by s. 25 of the Criminal Code. There are, however, limits on the extent of force that may be used, as was explained in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 34:

Section 25(1) essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. That is not the end of the matter. Section 25(3) also prohibits a police officer from using a greater degree of force, i.e. that which is intended or likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect him- or herself, or another person under his or her protection, from death or grievous bodily harm. The officer’s belief must be objectively reasonable. This means that the use of force under s. 25(3) is to be judged on a subjective-objective basis (Chartier v. Greaves, [2001] O.J. No. 634 (QL) (S.C.J.), at para. 59). If force of that degree is used to prevent a suspect from fleeing to avoid a lawful arrest, then it is justified under s. 25(4), subject to the limitations described above and to the requirement that the flight could not reasonably have been prevented in a less violent manner.

17In evaluating whether the amount of force used by the police was excessive, courts will usually afford the police a degree of latitude for the reasons outlined in Nasogaluak, at para. 35:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances.

However, there will be some cases where the police use force beyond what is permissible and cause injury to a suspect. When that occurs and the suspect’s security of the person is violated in a way that does not accord with the principles of fundamental justice, the result is a breach of s. 7 of the Charter: Nasogaluak, at para. 38.

(ii) Application to This Case

18D.C. Ross testified that he administered two to four “distraction strikes” to the applicant’s rib area using his fists because the applicant was resisting arrest and was reaching for his waist. D.C. Ross was aware that the applicant was suspected of being involved in an armed robbery and was concerned that he was reaching for a weapon. He stopped striking him once he obtained control of his hands. While it was suggested to D.C. Ross in cross-examination that he struck the applicant in the head, D.C. Ross denied this. The applicant did not testify on the application.

19It is well established that an applicant seeking relief for a Charter violation bears the onus of establishing the violation on a balance of probabilities. On the evidence before me, D.C. Ross used force that was in my view reasonable in the circumstances. The applicant had demonstrated that he was willing to go to extreme lengths to avoid apprehension, was resisting arrest and was reaching for his waist. I have no reason to disbelieve D.C. Ross’s version of events. Even if I did, I would be left with no evidence on the issue. Furthermore, there was no admissible non-hearsay evidence of any injuries.

20The s. 7 Charter application is dismissed.

B. Section 10(a) of the Charter

21According to the written submissions provided by counsel for the applicant, the s. 10(a) application is based on the allegation “That during the course of using excessive force on the Applicant, Officer Ross failed to provide the Applicant with the reasons for his detention, in contravention of the Applicant’s rights as enshrined in s. 10(a) of the Charter.”

22It appears from this that the alleged s. 10(a) violation is premised on there being a s. 7 violation. Obviously, if a police officer fails to advise a detainee of the reasons for his detention because he is otherwise occupied unjustifiably beating him up, s. 10(a) will be infringed. I have already concluded, however, that there was no s. 7 breach.

23While s. 10(a) requires a police officer to inform a detainee of the reasons for the detention “promptly,” which has been held to mean “immediately,” some delay may be justified on the basis of concerns for officer or public safety: R. v. Gonzalez, 2017 ONCA 543, 136 O.R. (3d) 225, at paras. 123, 128. The short delay in this case was justified on that basis.

C. Section 10(b) of the Charter (Informational Component)

24Section 10(b) of the Charter has both an informational and an implementational component. The police must inform detainees of their right to counsel and where the right is invoked, must provide detainees with a reasonable opportunity to exercise the right. The police must comply with both duties “without delay”: R. v. Dussault, 2022 SCC 16, at paras. 30-31.

25The applicant alleges that he was not advised of his right to counsel without delay. His submission with respect to the informational component of s. 10(b) is identical to his submission with respect to s. 10(a) and fails for the same reason.

D. Section 10(b) of the Charter (Implementational Component)

(i) Overview

26The applicant was first advised of his right to counsel by D.C. Ross at some time between 1:25 p.m. and 1:50 p.m. No police officer made any attempt to contact the applicant’s lawyer until D.C. Asner did so at 8:56 p.m., over seven hours later. The respondent cannot and does not suggest that this period meets the “without delay” requirement in s. 10(b). Rather, the Crown submits that the delay was justified at different periods of time for a variety of reasons: the unavailability of a phone in the ambulance, a lack of privacy at the hospital, bad traffic, a backlog at the sallyport, and the fact that D.C. Asner was busy making his notes and examining a seized phone. For the purposes of this application, it is sufficient that I consider only two of these periods: the two hours when the applicant was at the hospital between 2:40 p.m. and 4:40 p.m. and the two and a half-hour period between when the applicant arrived at the police station at 6:35 p.m. and when D.C. Asner telephone his lawyer at 8:56 p.m. In so doing, I should not be taken as agreeing that all of the other periods of delay were justified, although some of them may have been.

(ii) The Time at the Hospital

27The police’s obligations under s. 10(b) of the Charter in relation to an accused in custody who has been taken to the hospital was outlined in R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, the facts of which are very similar to the case at bar. As in this case, the accused was taken to a hospital after his arrest and although he had indicated a wish to speak to counsel, the police made no attempt to facilitate contact with counsel at the hospital. In finding a violation of s. 10(b), Abella J. stated, at paras. 32-35:

The duty of the police is to provide access to counsel at the earliest practical opportunity. To suggest, as the trial judge did, that it is presumptively reasonable to delay the implementation of the right to counsel for the entire duration of an accused’s time waiting for and receiving medical treatment in a hospital emergency ward, without any evidence of the particular circumstances, undermines the constitutional requirement of access to counsel “without delay”.

Not everything that happens in an emergency ward is necessarily a medical emergency of such proportions that communication between a lawyer and an accused is not reasonably possible. Constitutional rights cannot be displaced by assumptions of impracticality. Barriers to access must be proven, not assumed, and proactive steps are required to turn the right to counsel into access to counsel.

An individual who enters a hospital to receive medical treatment is not in a Charter-free zone. Where the individual has requested access to counsel and is in custody at the hospital, the police have an obligation under s. 10(b) to take steps to ascertain whether private access to a phone is in fact available, given the circumstances. Since most hospitals have phones, it is not a question simply of whether the individual is in the emergency room, it is whether the Crown has demonstrated that the circumstances are such that a private phone conversation is not reasonably feasible.

The result of the officers’ failure to even turn their minds that night to the obligation to provide this access, meant that there was virtually no evidence about whether a private phone call would have been possible, and therefore no basis for assessing the reasonableness of the failure to facilitate access. In fact, this is a case not so much about delay in facilitating access, but about its complete denial. It is difficult to see how this ongoing failure can be characterized as reasonable. Mr. Taylor’s s. 10(b) rights were clearly violated. With respect, the trial judge erred in concluding otherwise. [Emphasis added].

See also R. v. Sohani, 2022 ONSC 104, at paras. 34-35; R. v. Lachnit, 2022 ONCJ 137, at paras. 9-10; R. v. Hanmouth, 2021 ONCJ 444, at para. 50; R. v. Campoli, [2020] O.J. No. 167 (C.J.), at paras. 40-45

28Taylor, which was decided almost five years before the applicant’s arrest, spells out in detail what the obligations of the police are in circumstances such as those in this case. P.C. Fischer was either completely unaware of her obligations, or else chose to ignore them. Either way, her conduct was unacceptable and violated the applicant’s s. 10(b) Charter rights.

(iii) The Time at the Police Station

29Although the applicant had invoked his right to counsel, no police officer made any effort to put him in contact with his lawyer for about two and a half hours after he arrived at the police station. D.C. Asner explained that he had not done so because he was examining a seized phone in the hopes that its contents would assist the police in apprehending a suspect who was still at large. D.C. Asner did not explain why some other officer had not made efforts to contact the applicant’s lawyer. Although P.C. Fischer had apparently told her partner that she would do so, she chose not to because she thought the lawyer might ask her questions she would be unable to answer. According to her, she instead relayed the applicant’s wish to speak to a lawyer to another officer whose name she could not remember

30The Crown seeks to justify the delay in this case by relying on the Ontario Court of Appeal’s decision in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at paras. 26-27, where the court affirmed that a delay in implementing the right to counsel can be justified in some cases on the basis of concerns about public safety. The Crown argues that because D.C. Asner was examining the phone in the hopes of finding another suspect who was possibly dangerous, public safety concerns justified the delay in contacting the applicant’s lawyer. I cannot accept this submission.

31The exception described in Rover must be based on a legitimate concern that allowing the individual in question to speak to a lawyer would somehow compromise public safety or result in the loss of evidence. Rover does not stand for the proposition that the police are justified in delaying implementation of the right to counsel every time they have something better to do that might engage public safety concerns. Even if it did, this was not an arrest in a rural location with only one or two police officers available. I do not believe that in a division of the Toronto Police Service there was not a single officer available who could have made a call to the applicant’s lawyer and left a message. The delay in this case was not the result of public safety concerns but, rather, a complete disregard for the applicant’s constitutional rights.

32The Crown submits that it is “important” that no police officer attempted to elicit evidence from the applicant prior to him having an opportunity to speak to counsel. This may be relevant to the seriousness and impact of the breach in determining the appropriate remedy, but it is not relevant to the issue of whether there was a breach. Section 10(b) of the Charter guarantees the right to retain and instruct counsel, not the right to not be questioned until a lawyer can be spoken to.

33In any event, s. 10(b) does far more than simply ensure that detainees are not conscripted against themselves through police questioning, as was explained in Rover, at para. 45:

The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.

See also Dussault, at para. 56. The applicant was denied that lifeline in violation of his s. 10(b) Charter rights.

E. Remedy

34The relief sought in the applicant’s material is a stay of proceedings or, in the alternative, a reduction in sentence. The applicant’s request for a stay is premised on a finding of a s. 7 breach. There was no such breach. While there was a s. 10(b) violation, it did not have the effect of rendering the applicant’s trial unfair, nor would allowing the proceedings continue undermine confidence in the administration of justice: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at paras. 31-39; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 55; Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391, at para. 91. A stay of proceedings is clearly not an appropriate remedy.

35Counsel for the applicant’s materials contain no submissions as to the appropriateness of a sentence reduction or the extent of such reduction if appropriate, nor do the Crown’s. I invited counsel to make such submissions at the applicant’s sentencing hearing and I will determine what remedy, if any, is appropriate after hearing them.

III. DISPOSITION

36The application is dismissed with respect to s. 7, s. 10(a) and the informational component of s. 10(b). While there has been a violation of the implementational component of s. 10(b), the determination of the appropriate remedy, if any, will be made at the time of sentencing.

Footnotes

1. 1The applicant was convicted of a number of offences at the conclusion of the trial: see R. v. Hadi, 2022 ONSC 2903.