COURT FILE NO.: CRIMJ(P) 1669/19
DATE: 2022 07 05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Paul A. Renwick for the Crown
- and -
HASHMATULLAH LUTFI
Stephen R. Bernstein for the Accused
HEARD March 8, 9, 2022 by videoconference
REASONS FOR JUDGMENT
Fowler Byrne J.
[1] Mr. Lutfi seeks an order excluding evidence seized, pursuant to s. 24(2) of the Charter of Rights and Freedoms, alleging it was obtained in violation of his rights under ss. 8, 9, and 10(b) of the Charter.
[2] Following oral submissions, but before this decision was released, R. v. Tim, 2022 SCC 12, and R. v. Keshavarz, 2022 ONCA 312, were both released. Given the possible application of these cases to my decision, counsel were requested to make further written submissions. This decision follows the consideration of these submissions.[^1]
[3] Mr. Lufti faces charges of robbery, unlawful confinement, wearing a face mask with the intent to commit an indictable offence, use of an imitation firearm, and break and entering. His trial is expected to proceed in October 2022.
I. Issues
[4] The following issues must be decided:
a) Were Mr. Lufti’s Charter rights under the aforementioned sections breached?
b) If so, should the breach result in the exclusion of evidence seized, namely a BB gun and a construction vest, and the exclusion of an utterance made by Mr. Lufti, pursuant to s. 24(2) of the Charter?
[5] Mr. Lufti relies on the evidence given by three officers at the preliminary inquiry and excerpts from one officer’s notebook. No viva voce evidence was called.
II. Facts
[6] On the evening of January 30, 2018, Police Constable (P.C.) Breitenbach was on uniform patrol in Brampton, Ontario, when he heard a call on his radio of a possible home invasion at 31 Mellowood Avenue. He immediately proceeded to the scene, arriving eight minutes later at 8:18 p.m.
[7] While travelling to the scene, P.C. Breitenbach learned that one call to the police was a report of people seen going into the residence. Another call to the police came from within the residence indicating that four or five people were invading their home and someone was tied up. P.C. Breitenbach heard that P.C. Borosiu had already arrived and had reported over the radio that multiple people left the house and were running on foot. P.C. Borosiu was attempting to chase them. When P.C. Breitenbach arrived, he saw that P.C. Bothman was arresting someone in a park and he went to assist. P.C. Bothman told him that two other involved males were seen running eastbound over a fence and pointed to a fence that was alongside two houses that backed onto each other beside the park. P.C. Breitenbach ran in the indicated direction, hopped up on a fence and then a shed and saw footprints in the snow. He followed the footprints and saw two men in an ungated backyard of a residential home where P.C. Bothman was pointing, who appeared to be searching for a handle or hinge to try to get out.
[8] P.C. Breitenbach took out his firearm, issued a police command to the two men, and told them to stop. He advised them immediately that they were under arrest for home invasion and “weapons dangerous”. They stopped, put up their hands, and turned around to face the officer. One of the men immediately told P.C. Breitenbach that he had a gun in his waistband, but that it was a fake. P.C. Breitenbach ordered the two men to get onto their knees and lean against the house. They both complied and the officer confiscated the suspect’s firearm and then stepped back to a safe distance with his weapon still drawn on the men. He estimates the arrest occurred about ten minutes after his arrival, at approximately 8:28 p.m. He has no notes on the time of the arrest.
[9] P.C. Breitenbach states that he was concerned for his safety, being alone in a backyard with two suspects. He called out for assistance. P.C. Breitenbach maintains that he did not feel safe enough in the backyard to holster his gun, pull out his notebook, or read the suspects their rights. He does not have these rights memorized and would need his book. He maintains his safety concerns, despite the fact that the two suspects were compliant and on their knees.
[10] Eventually, in response to P.C. Breitenbach’s calls, P.C. Mahal arrived to assist. He estimates this took about five to ten minutes. P.C. Mahal climbed the fence into the backyard and assisted in handcuffing the two individuals. P.C. Mahal did not see P.C. Breitenbach’s gun drawn when she arrived. By that time, the lights of the residential home had been turned on and the owners were looking out to see what was occurring. Given that there was no opening in the gate, the homeowners allowed the two officers and the two handcuffed men to go through their house and out onto the street. The officers walked the two accused up the street and into their respective cruisers – Mr. Lufti in P.C. Breitenbach’s cruiser, and the other accused in P.C. Mahal’s cruiser.
[11] When P.C. Breitenbach and Mr. Lufti arrived back at the police cruiser, P.C. Breitenbach searched him again and found two dark gloves, a mask or scarf to cover a face, a toque, two shoes, and a small amount of cash.[^2] At one point, P.C. Breitenbach initially indicated that he also seized a construction vest, but in cross-examination stated that it may have been an item seized from a garbage can in the adjoining park. P.C. Antonio gave evidence at the preliminary inquiry that the construction vest was located in the snow between 74 and 76 Lyndbrook Crescent, beside a garbage can or garbage bin.
[12] After the search of Mr. Lufti, P.C. Breitenbach placed Mr. Lufti in his police car and read him his rights to counsel and the caution. This occurred approximately 20 minutes after P.C. Breitenbach first arrived on the scene. Mr. Lufti did not respond to any of it, and for this reason P.C. Breitenbach believes he read each question twice, with respect to right to counsel, before moving on to the next question. Given the facts, I estimate it took no more than five minutes for the two detainees to be walked through the private house and back to the police car before Mr. Lufti was read his rights.
[13] P.C. Breitenbach arrived at the police station with Mr. Lufti at approximately 8:50 p.m. Mr. Lufti did not make any statements and did not request to speak to a lawyer until 10:05 p.m. P.C. Breitenbach does not recall what precipitated this request. P.C. Breitenbach called duty counsel on behalf of Mr. Lufti right away. No one was available, so a message was left. Duty counsel, Mr. Pye, called back, but the time was not noted.
[14] Unfortunately, when Mr. Pye called back, he was put on hold. P.C. Breitenbach explained that Mr. Lufti was sitting in the same room as another prisoner in the process of being lodged. P.C. Breitenbach stated that, “for issues of privacy”, it was the policy of the police to not allow one prisoner to take a call from counsel when there was another prisoner being lodged in the same room. This policy existed despite the fact that Mr. Lufti could have been put in a separate room, with a door, to have a private conversation with duty counsel. P.C. Breitenbach agreed that access to counsel was delayed because of this policy.
[15] It is not known how long Mr. Pye was on hold. Mr. Pye eventually indicated that he could not wait any further. He indicated that he would make other calls, and that he would call back for Mr. Lufti in ten minutes.
[16] P.C. Breitenbach has no knowledge of when Mr. Pye or any duty counsel actually did call back, as he had no direct involvement with Mr. Lufti’s counsel after that time. It is agreed though that Mr. Lufti did eventually speak to duty counsel at 11:32 p.m., approximately one and a half hours after he requested to speak to counsel.
[17] There is no evidence that Mr. Lufti was questioned prior to speaking to counsel. There is no evidence of anything that happened in that one and one half hours.
III. Analysis
[18] Mr. Lufti argues that his rights under ss. 8, 9, and 10(b) of the Charter were violated. In the course of these violations, a construction vest and an imitation firearm were seized, and an utterance made. Mr. Lufti argues that this evidence should be excluded pursuant to s. 24(2) of the Charter.
[19] Mr. Lufti bears the onus of convincing this court that, on the balance of probabilities, his Charter rights were violated, and the aforementioned evidence should be excluded. With respect to the search of Mr. Lufti, given that it was made without a warrant, it is presumptively unreasonable. As a result, the Crown bears the onus of rebutting the presumption of unreasonableness: Hunter v Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 at page 161.
A. Arbitrary Detention – [Section 9](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)
[20] Section 9 of the Charter guarantees that everyone has the right not to be arbitrarily detained or imprisoned.
[21] It is clear that Mr. Lufti was detained and immediately arrested. At gunpoint, Mr. Lutfi was told to stop and that he was under arrest. The question to be considered is whether Mr. Lufti’s detention was arbitrary and, therefore, not lawful.
[22] In assessing whether a detention is arbitrary, a court must determine if (1) the detention was authorized by law, (2) whether the authorizing law was arbitrary, and (3) whether the manner in which the detention was carried out was reasonable. If there is no statutory or common law power authorizing a detention or arrest at that point in time, then it is considered arbitrary: R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 124.
[23] Under common law, the police are allowed to detain an individual for investigative purposes where, in the totality of circumstances, there are reasonable grounds to suspect that an individual is connected to a particular crime and that a detention is necessary. The detention must be reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between an individual detained and a recent or still unfolding crime: Le, at para. 131; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 55; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 34 and 45; R. v. Tim, 2022 SCC 12, 410 C.C.C. (3d) 389, at para. 24.
[24] Police are required to have reasonable and probable grounds that a person has committed an offence before they can arrest them. If an officer has reasonable and probable grounds to arrest someone, then the arrest is not arbitrary and is, therefore, authorized by law: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 248-249; Grant, at paras. 54-55.
[25] In determining if the arrest was authorized by law, I turn to s. 495(1) of the Criminal Code, R.S.C. 1985, c. C-46, which states that a peace officer may arrest an individual without a warrant if he or she believes, on reasonable grounds, that this person has committed, or is about to commit, an indictable offence.
[26] It is not enough for the police officer to subjectively believe that he or she has reasonable grounds to make an arrest. Rather it must also be established that those perceived grounds were objectively reasonable and probable grounds. In other words, it must be determined whether a reasonable person, standing in the shoes of the police officer, would believe that reasonable and probable grounds existed to arrest: Storrey, at pp. 250-251.
[27] On the facts before me, I find that P.C. Breitenbach had lawfully detained and arrested Mr. Lufti. The immediate detention was reasonable. The home invasion was very recent. P.C. Breitenbach had learned over his police radio that a possible home invasion had occurred in the neighbourhood and P.C. Borosiu had seen multiple people fleeing the house on foot. When he arrived, P.C. Breitenbach saw suspects running through the neighbourhood, at least one of whom was being arrested. P.C. Bothman pointed towards a backyard where he saw two suspects run. P.C. Breitenbach went in that direction and found two people, who did not appear to belong and were trying to get out of the backyard. Based on what he heard over his radio, what he was told by the other officers on the scene, and based on what he saw, he had reasonable grounds, subjectively and objectively, to believe that Mr. Lufti and the other detainee were involved in the crime.
[28] Accordingly, I find the detention and immediate arrest of Mr. Lutfi not arbitrary and were, therefore, lawful. Mr. Lufti’s rights under s. 9 were not violated.
B. Unreasonable Search – [Section 8](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)
[29] Mr. Lufti argues that his rights under s. 8 were violated. In particular, he argues that, if the detention and arrest were unlawful, then any subsequent searches were also unlawful. As indicated, I have found the detention and arrest to be lawful. Nonetheless I will examine the pieces of evidence discovered individually in order to determine if they were otherwise obtained unlawfully.
[30] Section 8 of the Charter guarantees that everyone has the right to be secure against unreasonable search or seizure.
[31] To show a violation of his rights under s. 8 of the Charter, Mr. Lufti must show that he had a reasonable expectation of privacy in the item seized, and that the search itself was unreasonable: R. v. Jones, 2017 SCC 60, at para.11. A party who claims a Charter violation with respect to a search bears the burden of establishing their standing to do so by demonstrating that, in the totality of the circumstances, they had a reasonable expectation of privacy in the place that was searched: R. v. Greer, 2020 ONCA 795, at para. 78. As indicated above, a warrantless search is presumptively unreasonable, and the Crown bears onus of rebutting that presumption.
[32] One does not have standing to assert a s. 8 breach for an item over which he or she does not have a reasonable expectation of privacy. For this expectation to be established, the accused must have a subjective expectation of privacy over the subject matter of the search that was objectively reasonable in all of the circumstances: R. v. Keshavarz, 2022 ONCA 312, at paras. 44-45.
[33] Mr. Lufti argues that, given the Crown’s theory that the construction vest belonged to Mr. Lufti, he has standing to argue for its exclusion. He relies on R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at paras. 32-33.
[34] Allowing Mr. Lufti to rely on the Crown’s position to support his standing, does not create automatic standing. As stated by Harvison Young J.A., in R. v. Labelle, 2019 ONCA 557, 379 C.C.C. (3d) 270, at para. 31:
The point of Jones is that the accused can rely on the Crown theory to establish certain facts relevant to their s. 8 claim. The trial judge is still required to assess those facts in the “totality of the circumstances” to determine whether the accused had a reasonable expectation of privacy in a particular territorial space. [Citations omitted.]
[35] With respect to the construction vest, there was no such reasonable expectation of privacy. While P.C. Breitenbach first testified that the construction vest was obtained from Mr. Lufti, he conceded on cross-examination that it was actually retrieved from a garbage bin in the neighbourhood. P.C. Antonio also indicated that it was found in a garbage bin on the street over from where Mr. Lufti was arrested.
[36] If an object is abandoned, there can be no reasonable expectation of privacy: R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, at p. 435. Whether something has been abandoned is a question of fact. The court must determine whether Mr. Lufti allegedly acted, in relation to the construction vest, in such a manner as to lead a reasonable and independent observer to conclude that his continued assertion of a privacy interest is unreasonable in the totality of circumstances: R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 25; R. v. Ellis, 2016 ONCA 598, 132 O.R. (3d) 510, at para. 62.
[37] On the facts before me, I find that the construction vest was abandoned. Whether it was abandoned by Mr. Lufti or someone else, is something to be left for trial. The vest was found in a garbage bin on a property that had no connection to Mr. Lufti. Accordingly, Mr. Lufti has failed to establish that he had a reasonable expectation of privacy with respect to the vest, and thus no standing, and cannot claim that his s. 8 rights respecting the vest were breached.
[38] With respect to the BB gun, there was no such abandonment. Accordingly, it must be determined if the search was reasonable.
[39] To be reasonable, a search must be authorized by law, the authorizing law must be reasonable, and the search must be carried out in a reasonable manner: R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 10; R. v. Bielli, 2021 ONCA 222, at para. 63; Tim, at para. 46.
[40] There are a number of ways that a search can be lawful. It can be conducted pursuant to a warrant, or incident to arrest: Bielli, at para. 63. The police can also search incident to an investigative detention. This type of search is limited to issues of safety in that the officer must believe on reasonable grounds that his or her safety, or the safety of others is at risk: Mann, at para. 40; Bielli, at para. 64.
[41] With respect to the BB gun, I find that P.C. Breitenbach had reasonable grounds to believe his safety, or the safety of others, was at risk. When he originally detained the two individuals, one of them immediately advised that he had a weapon, but that it was fake. The officer immediately searched the individuals and confiscated the gun. It was reasonable in these circumstances, based on what the accused told him, to search him for weapons, to ensure the safety of himself, the other officers, and the public.
[42] Accordingly, I find that the search and seizure was reasonable and, therefore, lawful. Mr. Lufti’s rights under s. 8 were not violated.
C. Right to Counsel – [s. 10(b)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)
[43] Section 10(b) of the Charter states that, upon detention, everyone has the right to retain and instruct counsel without delay and to be informed of that right.
[44] This right under s. 10(b) imposes both an informational and an implementational duty. The informational duty is the police’s obligation to advise the detainee of their right to retain and instruct counsel without delay, and the existence and availability of legal aid and duty counsel. The implementational duty includes providing the detainee a reasonable opportunity to exercise their right to counsel and refraining from eliciting evidence from the detainee until he or she has had that opportunity. These implementational duties are not triggered until a detainee indicates a desire to exercise his or her right to counsel: R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at pp. 191-192; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 30 and 33; R. v. Owens, 2015 ONCA 652, 127 O.R. (3d) 603, at para. 20.
[45] The police must inform the detainee of the right to speak to counsel without delay, which means “immediately”. The police must also then provide the detainee with a reasonable opportunity to exercise that right without delay: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 38-42; Bartle, at pp. 191-192; Keshavarz, at para. 59. The immediacy of this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter: Suberu, at para. 42; R. v. Pileggi, 2021 ONCA 4, at para. 61. A combination of circumstances can create a volatile situation, which may justify the police delaying a detainee’s s. 10(b) rights until such time as they control the situation: R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, at pp. 998-999.
i. Informational Duty
[46] Mr. Lufti bears the onus of proving that he was not advised immediately of his right to retain and instruct counsel. In support of his application, Mr. Lufti relied on the evidence given by P.C. Breitenbach at his preliminary inquiry.
[47] P.C. Breitenbach’s evidence was that he advised Mr. Lufti of his right to counsel no more than 20 minutes after his arrival on the scene and the original detention. It is the Crown’s position that this delay (which the Crown submits was more likely between 10 and 20 minutes) was justified given the circumstances of that night and the safety concerns of P.C. Breitenbach. Mr. Lufti argues that he should have been advised of his right to counsel immediately, and the 20 minute delay was unreasonable.
[48] In this case, I find that there was a delay in giving the informational component of Mr. Lufti’s rights under s. 10(b), for a period of 10 to 20 minutes. I find though, that this delay was for the most part reasonable, based on the circumstances facing P.C. Breitenbach and his concerns for his and the public’s safety. At most, there was an unreasonable delay of no more than five minutes.
[49] P.C. Breitenbach was aware that a violent home invasion had just occurred. He was aware that there were a number of suspects at large and was not sure if all were yet detained. He knew that one of his detainees already confessed to having a weapon, although professed it to be fake. He had to no time to advise Mr. Lufti of his right to counsel between the detention and Mr. Lufti advising him that he had a fake gun. The utterance was made immediately after the detention.
[50] P.C. Breitenbach also had no way to knowing whether the weapon was fake or not. He had authority over two detainees and would be at risk if they both tried to escape or harm him. P.C. Breitenbach felt the situation was dangerous enough to draw his weapon when he located the two suspects. He did not believe he had sufficient control of the situation so that he could safely remove the individuals from the backyard without assistance. He had to jump a fence to get into the backyard and there appeared to be no way out through a gate.
[51] It took approximately 5 to 10 minutes for P.C. Mahal to arrive and assist. P.C. Breitenbach stated that another 5 to 10 minutes transpired while P.C. Mahal assisted him in handcuffing the two detainees. P.C. Breitenbach did not read Mr. Lufti his rights prior to that because he had his weapon drawn and did not want to holster it to take out his notebook and recite the rights to counsel. He did not know the rights without reading them. While it may have been prudent to read the accused their rights once P.C. Mahal arrived, the constables chose to instead remove the detainees from the backyard, out through the private home, and bring them to the police cruisers, where they were read their rights to counsel. Given the time estimates given by P.C. Breitenbach, which is the only evidence before me, it probably took no more than five minutes to walk the detainees to the police cruisers. At no point, prior to being read their rights to counsel, did P.C. Breitenbach or P.C. Mahal attempt to elicit any statement from Mr. Lufti.
[52] Accordingly, I find that Mr. Lufti’s right to the informational component of s. 10(b) was unreasonably delayed from the time P.C. Breitenbach and P.C. Mahal gained control of the situation, but the delay was no more than five minutes.
ii. Implementational Duty
[53] I find that there was a delay in the implementational component of Mr. Lufti’s right to counsel.
[54] It is agreed that the first time Mr. Lufti asked to speak to duty counsel was at 10:05 p.m. that night, approximately one and a half hours after his arrest and after being advised of his right to speak to counsel. Given that there is no evidence that Mr. Lufti requested a lawyer before then, the delay to this point is not a violation of his s. 10(b) rights. P.C. Breitenbach gave evidence that Mr. Lufti gave no response after being advised of his right to counsel. Mr. Lufti led no evidence in this application that the officers were aware of his desire to speak to counsel before 10:05 p.m. Without this evidence, which he was uniquely positioned to give, there is no basis upon which to conclude that he was deprived of the implementational component of his right to counsel before that time: R. v. Williams, 2014 ONCA 431 at para. 39.
[55] The delay arises after Mr. Lufti requested to speak to a lawyer. While P.C. Breitenbach acted immediately and placed the call to duty counsel, when duty counsel called back, P.C. Breitenbach did not permit Mr. Lufti to take the call. P.C. Breitenbach gave evidence that he was following an internal procedure. At the time duty counsel called back, Mr. Lufti was in the same room as another detainee who was being lodged. He said it was police practice to not bring one detainee through to another room to take a private call with duty counsel while another detainee was being lodged.
[56] The only evidence presented on the length of the delay from that point is that duty counsel indicated he would call back in ten minutes. There is no evidence of when duty counsel actually called back. The parties agreed that Mr. Lufti did speak to counsel at 11:32 p.m., approximately one and a half hours later, but there was no evidence presented as to what happened in that time period. Did duty counsel call back? Was he put on hold again? Did Mr. Lufti ask again to speak to a lawyer? Did the police make any efforts to contact counsel again? There is simply no explanation for, or evidence related to, the delay of one and a half hours, other than P.C. Breitenbach’s evidence that duty counsel indicated he would call back in ten minutes and that he had no further contact with duty counsel that day.
[57] The implementational duties of the police arise immediately upon a detainee’s request to speak to counsel. The police are under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonable and available opportunity. The burden is then on the Crown to show that a given delay was reasonable in the circumstances. This means that to give effect to the right to counsel, the police must inform detainees of their s. 10(b) rights and facilitate access to those rights where requested, both without delay. This includes allowing the detainee, upon request, to use the telephone for that purpose, if one is available. This is because the detainee is in the control of the police and cannot exercise his right to counsel unless the police give him a reasonable opportunity to do so: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 24-25; Willier, at para. 41.
[58] The suspension of a right to counsel must be only for so long as is reasonably necessary. The police must comply with the implementational component as soon as circumstances reasonably permit. There are specific circumstances that may justify some delay in providing a detainee access to counsel. These circumstances usually relate to police safety, public safety, or the preservation of evidence. Even if appropriate circumstances exist that would delay granting access to counsel, the police must also take reasonable steps to minimize the delay in granting access to counsel: R. v. Mazza, 2016 ONSC 5581, at para. 83; R. v. Shang En Wu, 2017 ONSC 1003, 35 C.R. (7th) 101, at para. 78; R. v. Rover, 2018 ONCA 745, at paras. 26-27; Keshavarz, at para. 60.
[59] Whether a delay or suspension of the right to counsel is justified is a fact-specific and contextual determination. I must consider that the suspension of the right to counsel is an exceptional step that should only be undertaken in cases where urgent and dangerous circumstances arise or where there are concerns for officer or public safety. A policy or practice that routinely or categorically permits the suspension of the right to counsel in certain types of investigations is inappropriate: Shang En Wu, at para. 78; Rover, at para. 28.
[60] In these circumstances, I have no evidence that the delay was reasonably necessary. I have no evidence at all of what happened in the one and a half hours between when duty counsel was first called to speak to Mr. Lufti and when Mr. Lufti eventually spoke to a lawyer. The Crown has not satisfied its onus to show that the delay was reasonable.
[61] Accordingly, I find that Mr. Lufti’s right to speak to counsel, or more particularly the implementation of his rights under s. 10(b), were violated.
D. Section 24(2) analysis
[62] Since I have found a breach of Mr. Lufti’s rights under s. 10(b) of the Charter, I must now determine whether these findings should result in the exclusion of evidence, pursuant to s. 24(2) of the Charter. In particular, Mr. Lufti seeks to exclude his utterance to P.C. Breitenbach, the BB gun, and a construction vest.
[63] Mr. Lufti bears the onus of convincing the court that the exclusion of the evidence is appropriate: R. v. Fearon, 2014 SCC 77, at para. 89; R. v. Lenhardt, 2019 ONCA 416, at paras. 11-12. He must first show that the evidence was obtained in a manner that violated the Charter. Once this has been done, he must then show that the admission of the evidence would be the administration of justice into disrepute: R v. Pino 2016 ONCA 389 at para. 35-36.
i. Was Evidence Obtained in a Manner that Violated the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?
[64] Whether the subject evidence was “obtained in a manner” that infringed Mr. Lufti’s Charter rights is a threshold issue: Pileggi, at paras. 98 and 100. This must be considered before I embark on the second part of the analysis.
[65] The Supreme Court of Canada has recently provided guidance in determining whether evidence is obtained in a manner that breaches an accused’s Charter rights so as to trigger a s. 24(2) analysis: Tim, at para. 78. The following principles are to be applied:
The courts take a purposive and generous approach to whether evidence was “obtained in a manner” that breached an accused’s Charter rights.
The entire chain of events involving the Charter breach and the impugned evidence should be examined.
Evidence will be tainted if the breach and the discovery of the impugned evidence are part of the same transaction or course of conduct.
The connection between the Charter breach and the impugned evidence can be temporal, contextual, causal or a combination of the three. A causal connection is not required.
A remote or tenuous connection between the Charter breach and the impugned evidence will not suffice to trigger s. 24(2). Such situations should be dealt with on a case by case basis. There is no hard and fast rule for determining when evidence obtained following the infringement of a Charter right becomes too remote.
[Citations Omitted.]
[66] In the case before me, the utterance and the discovery of the BB gun and construction vest were all contextually linked, and all related to the same investigation over a period of several hours. While the link of the construction vest is more tenuous due to its abandonment, I accept the Applicant’s position that it is sufficiently linked for the purposes of this threshold analysis.
ii. Would Admission Bring the Administration of Justice into Disrepute
[67] An inquiry under s. 24(2) examines the impact of admitting evidence obtained in breach of the Charter on public confidence in the justice system over the long term. The inquiry is based on (i) the seriousness of the Charter-infringing state conduct, (ii) the impact of the breach on the accused’s Charter-protected interests, and (iii) society’s interest in the adjudication of the case on the merits. The court’s role on a s. 24(2) application is to balance the assessments under these three avenues and determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute: Grant, at para. 71.
[68] Any analysis under s. 24(2) should be conducted so that it takes into account the cumulative effect of the various Charter breaches: R. v. Culotta, 2018 ONCA 665, 142 O.R. (3d) 241, at para. 62.
a. Seriousness of Breach
[69] When determining the seriousness of the breach, the court should determine whether the police engaged in misconduct from which the court should disassociate itself. The most serious conduct is wilful or reckless disregard of Charter rights which will have a negative effect on the public confidence in the rule of law and bring the administration of justice into disrepute. On the other end of the spectrum is inadvertent or minor violations of the Charter, or an understandable mistake, which would not undermine public confidence in the rule of law: Grant, at paras. 72-74; R. v. Thompson, 2020 ONCA 264, 62 C.R. (7th) 286, at para. 83.
[70] In this situation, I find that the delay in providing the information component of s. 10(b) was minor, but the delay in implementing Mr. Lufti’s 10(b) rights was serious. Together, I accept the Applicant’s position that the breach of Mr. Lufti’s s. 10(b) rights was serious.
[71] Mr. Lufti had an opportunity to speak to counsel very soon after he invoked his right. The reasons why he was not able to speak to his counsel – the police policy of not permitting discussion with counsel when another detainee is being lodged in the same room – defies logic or common sense. The failure of the Crown to provide any evidence to show that the delay was reasonably necessary, leaves me with the conclusion that there was disregard for Mr. Lufti’s right to speak to counsel.
[72] I am also concerned about P.C. Breitenbach’s cavalier attitude toward his evidence with respect to the construction vest. At first, he testified that he seized the construction vest from Mr. Lufti when he conducted a search of his person at his cruiser. It was not until he was challenged on cross-examination that he stated he didn’t think Mr. Lufti was actually wearing the vest when he was arrested. Then he indicated he “just had a memory” that the vest was retrieved from a garbage bin in the area. This raises concerns about the credibility and reliability of P.C. Breitenbach’s evidence that add to the seriousness of the breach, and which favours exclusion of the evidence.
b. Impact of the Breach
[73] This prong of the inquiry calls upon the court to first look at the interests engaged by the particular Charter right, and then consider the degree to which the violation impacted those interests: Grant, at paras. 76-77; Tim, at para. 90; Keshavarz, at para. 112.
[74] The impact of the breach may range from fleeting and technical to profoundly intrusive. The more serious the impact of the accused’s protected interests, the greater the risk that the admission of the evidence may signal to the public that Charter rights are of little avail to the citizen, bringing the administration of justice into disrepute: Grant, at para. 76.
[75] The right to immediate access to counsel is important for many reasons:
a) The detainee may need immediate advice about the lawfulness of their arrest and their obligation to submit to a search;
b) The detainee is entitled to know about their rights during detention, including the right against self-incrimination;
c) Counsel can provide reassurance and advice, on such questions as how long the detention is apt to last, and what can or should be done to regain liberty.
R. v. Noel, 2019 ONCA 860, at paras. 23-26; Keshavarz, at para. 114.
[76] The impact of the breach is not particularly serious when the applicant did not incriminate himself and there is no indication that he would have obtained his liberty any earlier had the breach not occurred: Keshavarz, at para. 114.
[77] Also, while there need not be a causal relationship between the evidence and the Charter breach to establish a case for exclusion under s. 24(2), the absence of any such connection between the Charter breach and the evidence lawfully seized lessens the impact of the breach of the applicant’s Charter-protected interests and would make its admission more likely. It is entirely appropriate to consider the lack of a causal connection in calibrating seriousness under the second stage of the Grant analysis: R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 87; Grant, at para. 122; Pileggi, at para. 108, 120; Keshavarez at par. 115; R. v. Lenhardt, 2019 ONCA 416, at para. 11.
[78] The court may also consider whether the seriousness of the impact of the breach was compounded by the interference with other Charter-protected interests.
[79] Where it can be said with confidence that the Charter-infringing conduct did not cause the evidence to become available because it was otherwise discoverable in obedience to constitutional restraints, the impact of state action is minimized: Grant, at para. 122; and R. v. Tennant, 2018 ONCA 264, at paras. 5-6.
[80] With respect to the construction vest, I have found that it was abandoned. Accordingly, Mr. Lufti abandoned any expectation of privacy in this subject evidence and had no remaining constitutional relationship with the evidence at the time it was lawfully seized: Keshavarz, at paras. 56 and 116.
[81] Also, the discovery of the vest could have happened whether or not Mr. Lufti’s rights were violated. There is no causal connection between the impact of the violation of the s. 10(b) rights and the discovery of the vest.
[82] With respect to the arrest, the utterance made, and the items seized, I have found no violations of ss. 8 or 9 of the Charter. Accordingly, Keshavarz cannot be distinguished on that basis, as the Applicant submits. In this case, there are no other Charter violations, other than s. 10(b).
[83] The utterance made by Mr. Lufti regarding the BB gun was not causally linked to the breach. When a statement is made spontaneously following a Charter breach, or in the exceptional circumstances where it can confidently be said that the statement in question would have been made notwithstanding the Charter breach, the impact of the breach on the accused’s protected interest in making an informed choice to speak to police may be less: Grant, at para. 96; R. v. Harper, 1994 CanLII 68 (SCC), [1994] 3 S.C.R. 343, at p. 346. This is even more so because I found no ss. 8 or 9 Charter breaches in these circumstances.
[84] In this case, Mr. Lufti made his utterance and told the officer about his BB gun before P.C. Breitenbach had an opportunity to advise him of his s. 10(b) rights. No doubt, Mr. Lufti was trying to avoid an escalation of the situation. Having been properly detained and arrested, he would be subject to a search incident to arrest, which would have inevitably resulted in the discovery of the BB gun. I find that Mr. Lufti consciously decided to make this statement and give up his BB gun.
[85] Finally, I am not satisfied that Mr. Lufti would have been able to seek his liberty any sooner, but for this violation of his s. 10(b) rights, or at least I have received no evidence that he could have done so.
[86] Accordingly, I find that the impact on Mr. Lufti’s s. 10(b) rights was minimal, which favours the inclusion of the evidence.
c. Societal Interests
[87] Society expects that a criminal allegation will be adjudicated on its merits. In considering this final factor, the court is asked to determine whether the admission of the evidence, even if obtained due to a breach of the Charter, would assist the court in its truth-seeking function. If the breach undermines the reliability of the evidence, then the court should be more inclined to exclude it. On the other hand, the exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute: Grant, at paras. 79-81.
[88] Mr. Lufti is charged with use of an imitation firearm. Accordingly, evidence of the BB gun and Mr. Lufti’s utterance is at the heart of this charge. Without this evidence, the Crown would have difficulty proving this offence. It is not clear what significance the existence of the BB gun or the utterance would have on the remaining charges faced by Mr. Lufti, but it may be relevant and is certainly reliable. The exclusion of evidence, based on constitutional violations that were not connected to its discovery, would damage the repute of the justice system. When evidence is discovered by virtue of a proper search and seizure, which was executed in a reasonable manner, the exclusion of that evidence would only serve to indirectly punish the offending officers, rather than aligning with the overall purpose of s. 24(2) – vindicating the long-term repute of the criminal justice system: Pileggi, at paras. 126-127; R. v. Hobeika, 2020 ONCA 750, at para. 90.
[89] Accordingly, this third factor favours the inclusion of the subject evidence.
d. Weighing all Factors
[90] There is no overarching rule that governs how the balance is to be struck between the three factors in a s. 24(2) analysis, and I must consider all the circumstances of the case before me: Grant, at para. 86; R. v. Omar, 2018 ONCA 975, Brown J.A. dissenting, at para. 114-115, adopted in 2019 SCC 32, at para. 1. That being said, when the first two inquiries taken together make a strong case for exclusion, “the third inquiry will seldom if ever tip the balance in favour of admissibility”: Le, at paras. 141-142.
[91] Each factor must be assessed and weighed in the balance, focussing on the long-term integrity of, and public confidence in, the administration of justice. As said in Tim, at para. 98:
The balancing is prospective: it aims to ensure that evidence obtained through a Charter breach does not do further damage to the repute of the justice system. The balancing is also societal: the goal is not to punish the police, but rather to address systemic concerns by analyzing the broad impact of admission of the evidence on the long-term repute of the justice system. [Citations omitted.]
[92] I have reviewed the serious violation of Mr. Lufti’s s. 10(b) rights, which pushes towards the exclusion of the evidence. I also find that the impact on Mr. Lufti’s Charter-protected interests were minor with respect to the BB gun and the utterance, and non-existent with respect to the construction vest, all of which points to inclusion. Finally, the importance of the evidence to at least some of the Crown’s case, the public’s interest in having matters adjudicated on reliable and properly retrieved evidence, and the seriousness of the charge, all point to inclusion.
[93] Accordingly, upon review of all the applicable factors, I find that the administration of justice would not be brought into disrepute if the evidence is admitted, and I would allow it to stay in.
IV. Conclusion
[94] For the foregoing reasons, Mr. Lufti’s application is dismissed.
Fowler Byrne J.
Released: July 5, 2022
COURT FILE NO.: CRIMJ(P) 1669/19
DATE: 2022 07 05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
HASHMATULLAH LUTFI
REASONS FOR JUDGMENT
Fowler Byrne J.
Released: July 5, 2022
[^1] The Court’s Memo to counsel, dated April 25, 2022, has been made Exhibit A to this Application; the Applicant’s written submissions, dated May 16, 2022, have been made Exhibit B to this Application; the Respondent’s written submissions, dated June 3, 2022, have been made Exhibit C to this Application.
[^2] Mr. Lufti has only sought to exclude the utterance, the BB gun and the construction vest, as set forth in his Notice of Application, and his Factum. Although these other items were seized from Mr. Lufti on the night of his arrest, he did not seek that they be excluded in the materials before the court, nor was any such request made in his submissions.